New York Criminal Attorney Blog

The number one concern of parents/guardians who find out they are the subject of a child protective services (CPS) abuse and/or maltreatment (neglect) investigation is whether CPS can remove their children from their home. To summarize, as I wrote in my previous blog, your child can be taken without a court order by CPS when they have reasonable cause to believe that letting the child remain with you would pose an imminent threat to the child’s health or life and there is not enough time to obtain a court order. (See NY Fam. Ct. Act §1024; Soc. Serv. Law § 417).

However, what many people don’t realize is that hospitals and other similar institutions can hold your child under certain circumstances. New York Soc.Serv. Law § 417(2) authorizes hospitals and other institutions to hold your child for twenty-four hours if “the facts so warrant.” The “imminent danger” necessary for CPS to remove your child is not necessary for a hospital to hold your child for twenty-four hours.

The authority for a hospital to hold a child for twenty-four hours is much broader than the authority granted CPS to remove a child from his or her parents/guardian since “imminent danger” need not exist. This “twenty-four-hour hold” period gives hospitals time to contact CPS and hold the child until a CPS investigator can arrive. It prevents a parent/guardian from simply leaving with the child where it is apparent to that parent that hospital medical staff has concerns about abuse and/or maltreatment (neglect). A hospital might hold a child when the child is brought in with suspicious injuries indicative of abuse or excessive corporal punishment.

Our firm represents many parents and guardians who are the subject of child abuse and/or maltreatment (neglect) investigations throughout New York City, Westchester, Rockland, Dutchess, Putnam and other downstate counties. The first question almost everyone who is the subject of such an investigation asks is: “Can they take my kids?”

Your child can be taken without a court order by the police, child protective services and even you doctor when they have reasonable cause to believe that letting the child remain with you would pose an imminent threat to the child’s life or health and they believe there is not enough time to obtain a court order. (See NY Fam. Ct. Act §1024; Soc. Serv. Law § 417). Therefore, before your child can be removed, there must exist an imminent danger to the child’s life or health and not enough time to obtain a court order. The person who removes a child from the home must make every reasonable effort to inform the parent or guardian where the child has been brought. (See NY Fam. Ct. Act §1024(b)(ii)).

The New York Court of Appeals has interpreted section 1024 of the Family Court Act strictly thus limiting the practice of emergency removals. See Nicholson v. Scoppetta, 3 N.Y.3d 357 (2004). It is not enough that the child “appear” to be in imminent danger; the child must in fact be in imminent danger. This eliminates any polices where Child Protective Services err on the side of “safety” and remove as matter of course.

Generally, our medical records and our children’s medical records are private and our medical providers may not them. (See NY CPLR 4504(a)). This “privacy” or privilege from disclosure is based upon what is referred to as the “doctor-patient” privilege. However, in New York, when a mandated reporter makes a report of suspected child abuse or maltreatment/neglect that actually results in an investigation by a Child Protective Services agency, that mandatory reporter must comply with CPS’s request for records “relating to such report” including the medical records of any patient or client of that mandatory reporter that are “essential for a full investigation” of the suspected child abuse, maltreatment or neglect. (See Soc. Ser. Law 415)).

This applies to doctors or other quasi-medical personal who report suspected child abuse, neglect or maltreatment. In other words, if you take your child to the doctor and the doctor finds a bruise that leads him or her to suspect abuse (even though the bruise was from a football game in the backyard) and file a report, your doctor must comply with a subsequent CPS request for any records of any of his or her patients or clients which relate to the report the doctor filed.

Therefore, not only might the doctor have to provide that child’s records, he might also have to provide the medical records of your other children if they would be essential to a full investigation by CPS. Furthermore, should your child be older and thus going to your doctor, your medical records might be turned over to CPS if they are deemed essential to a full investigation by CPS of the suspected abuse, maltreatment or neglect of your child.

In addition to the mandatory reporters I previously discussed, the Social Services Law specifically authorizes “any person” to make a report of suspected abuse or maltreatment when they have reasonable cause to believe a child is the victim of abuse or maltreatment. (Soc. Ser. Law § 414). While seemingly supported by good intentions, the ability of anyone to make a purely anonymous report of abuse or maltreatment poses a tremendous problem because New York treats any complaint, whether from a known source or a purely anonymous caller, the same. Each triggers what can probably be described as the most intrusive, humiliating, frightening and, far too often, constitutionally improper investigations into the inner most private workings of a family. And to repeat, this can all be triggered by a purely anonymous “tip”.

It is because New York treats anonymous reports the same as reports from known mandatory reporters; the nosey neighbor, the angry neighbor, the spurned ex-lover, the “do-gooder” we all can’t stand, the disgruntled parent, grandparent, uncle, aunt or any variety of wackos can throw one’s life into turmoil with a simple anonymous report to an abuse hotline. There have been cases where families have gone through entire investigations and hearings because a passing motorist saw a child “unattended” in the driveway of a home. Imagine you are watching your child from the porch, just 10 feet away, and because some passing motorist sees only your child, you become the subject of an abuse or neglect investigation.

If the allegations contained in the report, whether anonymous or from a know source, “could reasonably constitute a report of child abuse or maltreatment”, or “if true would constitute child abuse or maltreatment”, the report must be transmitted to the appropriate local child protective agency for investigation (Social Services Law § 422[2][a], [b] ). Therefore, as long as the false report made by an anonymous ex-boyfriend, disgruntled ex-spouse, nosey neighbor or whomever, makes out a plausible claim of abuse or maltreatment, you will be investigated. I have personally handled cases where a single parent has been the subject of repeated false anonymous reports all of which resulted in an investigation.

In an effort to identify those children who might be the victim of abuse or neglect, certain individuals who are in a position to observe signs of abuse and/or neglect are required by law to make a report when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is abused or maltreated. These individuals are referred to as “mandatory reporters”. (See Soc Ser. Law § 413).

Almost all reports of abuse or maltreatment are made by “mandatory reporters”. The list of mandatory reporters is quite long and includes physicians, dentists, nurses, social workers, school officials, substance abuse counselors, police officers, and assistant district attorneys. When one of these mandatory reporters has reasonable cause to believe your child has been abused or maltreated, they are required by law to report such suspected abuse or maltreatment in accordance with Soc. Ser. Law § 413(1)(b) & (c).

Employers of mandatory reporters must provide new hires with written information explaining their mandatory reporting requirements. (See Soc Ser. Law § 413(2)). Any state or local agency that licenses or issues certificates to day care facilities shall provide the licensee with written information regarding mandatory reporting requirements. (See Soc Ser. Law § 413(3)). Finally, any agency, employer or other organization that employs mandatory reporters who travel, in the normal course of their duties, to where children reside must provide those mandatory reporters with information or how to recognize an unlawful methamphetamine laboratory. (See Soc Ser. Law § 413(4)). As a result of mandatory reporting laws, most reports of child abuse, neglect and/or maltreatment are made by school employees or doctors who observe signs of abuse, neglect and/or maltreatment.