Evidentiary Standards in CPS and ACS Proceedings – Part II

January 8, 2016 By

CPS and ACS defense attorneyAbuse and/or Neglect Proceedings in Family Court

Family Courts in the Metropolitan New York area are overburdened. Judges are faced with numerous cases each day which should require significant amounts of time. However, the reasonable amount of time required to deal with these cases is usually not available to judges. Judges are forced to make decisions over families’ and children’s lives after only several minutes of presentation. This means if you appear in court in a proceeding based on allegations of child abuse or child neglect, the presentation made by you or your attorney must be maximized to get your point across quickly and persuasively. You will not be able to tell an entire story at the initial court proceeding. The purpose of the initial court date is for the judge to find out generally what the case is about. It is not a trial date. If the judge decides the case should have a trial or hearing, the judge will schedule it for a trial or hearing on subsequent dates.

Family Violence and Abuse

The abuse and neglect of children is a serious matter. The writer understands that there are terrible cases involving children who are abused and neglected. However, this article deals with cases involving well-meaning, dedicated, loving families who are sometimes torn apart by specious allegations of child abuse or child neglect often coming from mandatory reporters who simply misunderstand their responsibility. Mandatory reporters do not have a responsibility of reporting every injury or bruise on a child. The over-reporting by mandatory reporters causes well-meaning, loving families to find themselves in stressful situations by overzealous CPS and ACS workers looking for child abuse and child neglect in situations where they simply do not exist.

Conclusion

If faced with an investigation by either CPS or ACS it is in your and your child’s best interest to consult with an attorney experienced in dealing with these matters as soon as possible. What you say to these investigators can be used against you in proceedings in the Family Court.family law attorney

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Evidentiary Standards in CPS and ACS Proceedings – Part I

January 5, 2016 By

family law lawyerThe standard of evidence used in child abuse and child neglect proceedings is called the preponderance of the evidence. When Child Protective Services (hereinafter referred to as “CPS”) or the Administration for Children’s Services (hereinafter referred to as “ACS”) seeks to establish child abuse or child neglect they bring proceedings in Family Court. Family Courts makes these decisions based upon a preponderance of the evidence. Unfortunately, individuals representing themselves in these proceedings usually do not understand how the legal system works and how to present evidence. Sometimes the only evidence presented is the evidence by the CPS or ACS worker of the allegations of abuse or neglect of the children. Opinions of CPS or ACS workers, statements made by young children, hearsay statements made by third parties may all be taken into consideration in proceedings involving child abuse and child neglect.

Parents and other individuals often tell their life stories to CPS or ACS investigators looking for sympathy. This is usually a terrible mistake! CPS and ACS investigators are there to prove that there have been instances of child abuse or child neglect. They work under the presumption that child abuse or child neglect has taken place whenever a complaint is made, no matter how frivolous it is. When parents tell their life story to these investigators, the investigators are simply looking to extrapolate from the story evidence which can be used against the parent in the child abuse and child neglect proceeding.

The Power of CPS and ACS Investigators

CPS and ACS investigators have a lot of power. Unfortunately, there is not an appropriate supervisory system to check their use of the power. Their reports, no matter how salacious, based on opinions not on evidence, based on statements made by individuals who have no actual knowledge of the circumstances and events are given credence. There is a tendency for these investigators to abuse their power. They look for any evidence of child abuse or child neglect. The evidence can simply be that a child was injured. They can take the position that if the child was injured it was someone’s responsibility to see to it that the child was not injured.family law attorney

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Uncle Found Not Guilty of Child Abuse

December 28, 2015 By

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Elliot S. Schlissel is an attorney who has been handling cases with CPS and ACS for more than 45 years.  He and his associates are available for consultation by calling 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.

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Investigations by Child Protective Services (CPS) and Administration for Children’s Services (ACS)

December 23, 2015 By

lawyer for parents in CPS proceedingsThe process by which Child Protective Services (hereinafter referred to as “CPS”) and the Administration for Children’s Services (hereinafter referred to as “ACS”) looks into allegations of child abuse and child neglect is referred to as an investigation. These are not criminal investigations. These are more appropriately described as narrative reports on the status of the children and the interaction with the children’s family related to the event or events in question. It should be noted that CPS and ACS workers are looking to find child abuse or child neglect in their investigations. Once a report of alleged child abuse or alleged child neglect is made it is presumed to be accurate by the CPS or ACS worker until such time as the worker looking into the matter determines it is more likely that child abuse or child neglect has not occurred. In other words, you are guilty until proven innocent!

The purpose of a CPS or ACS report is to reach a determination as to whether or not a child needs to be protected from potential future abuse. CPS and ACS reports focus on the circumstances involved in the family, their history, their economic circumstances, the relationship of family members, their school programs, what their household looks like, whether there are adequate safeguards in the home, adequate food in the home, whether the home is messy, ill maintained and other issues.

Conclusion

Although CPS and ACS workers are not criminal investigators they can have a significant impact on families. Their investigations should not be taken lightly. The fact that they are looking for evidence of child abuse and child neglect must be carefully dealt with. The presumption the CPS or ACS worker is investigating to find the truth as to what happened, may not be accurate. The purpose of the investigation is to ascertain as to whether the allegations are not true. Until such time as they reach the conclusion that the allegations in the initial report are not true, there is a presumption by the CPS or ACS worker that they are investigating an actual case of child abuse or child neglect.attorney for parents facing CPS or ACS charges

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Father Given Legal and Physical Custody of Special Needs Child

October 30, 2015 By

Father's rights lawyerForensic Evaluator Appointed

In a case in Richmond County, New York, a wife commenced a divorce lawsuit against her husband. The issue as to who would be the more appropriate parent to have custody of the parties’ special needs child was presented to the court. Justice Catherine DiDomenico sitting in the Supreme Court in Richmond County appointed a neutral forensic evaluator. The forensic evaluator was appointed to look into the issue of who would be the more appropriate custodial parent. After a detailed examination of the circumstances involving the child’s life, the forensic evaluator wrote a report suggesting the father should have physical and residential custody of the parties’ special needs child.

Wife Had Questionable Credibility

Justice DiDomenico took into consideration the testimony of the parties before rendering a decision. She found the wife’s credibility was at times not to be taken seriously. Her testimony was contradicted by other witnesses. She had lied to both ACS and the Family Court referee with regard to her relationship with her ex-husband, a man who had been convicted of murder. She also had a violent criminal history of her own which made her less acceptable to be a custodial parent.

Father Honest and Forthright

Although the father had prepared a net worth statement which had a number of inaccuracies, the court found he was honest and forthright and credible with regard to his testimony. Justice DiDomenico ruled the father was the parent better suited to meet the everyday needs of the parties’ special needs child. This specifically referred to the child’s medical and educational needs. The court also noted the mother did not even accept, until fairly recently, the fact that her daughter had special needs. The mother was shown to be inflexible and failed to foster a relationship between the child and the child’s father. She was therefore “less fit” to be the residential custodial parent. The father was awarded sole legal and physical custody.

Elliot S. Schlissel is a father’s rights lawyer.Father's rights advocate

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Father’s Name Removed From Child Abuse Registry

September 7, 2015 By

father's rights lawyerAn appeals court has ordered that the New York State Central Register of Child Abuse and Mistreatment remove the name of an aspiring pediatrician. He had been reported for hitting his two year old son on his butt on one occasion. In its decision to remove the father’s name from the child abuse registry, the appeals court stated there was no evidence the incident impaired the child’s physical, mental or emotional condition.

The Facts of the Case

Maurizio was giving his son a bath in July of 2012. His son started to eat soap. He slapped him one time on the butt to discipline him and convince him that eating soap was not something he should be doing. The next day the father noticed his child’s butt was bruised. He told the son’s daycare provider about the incident. The daycare provider reported him to Child Protective Services. Child care providers are one of the many professionals who are mandated under New York State Law to report suspected cases of child abuse and/or child neglect.

An investigation was undertaken by the Suffolk County Department of Social Services. The Social Service worker determined the incident should be considered “indicated” for child abuse, inadequate guardianship and excessive corporal punishment.

Father Requests Child Abuse Report To Be Marked “Unfounded”

The father requested the report be changed from indicated to unfounded. A hearing was held before an Administrative Law Judge. The Administrative Law Judge found the father’s inappropriate behavior was supported by a “preponderance of the evidence” and that the “indicated report should be disclosed to all inquiring agencies.”

At the time of the hearing, the father testified he spanked the boy one time, his son cried briefly, and the family thereafter resumed to its normal activities. His son did not complain of pain. There was no negative impact on the boy as a result of the incident. The impression left by the slap on the child’s butt was exacerbated by the boy’s sensitivity due to the hot bath water the boy was in at the time. The father was remorseful and cooperative with the Department of Social Services. He took an anger management program and he had a positive attitude about changing his ways concerning corporal punishment.

His wife, the child’s mother, testified the husband had not on any other occasion meted out excessive corporal punishment to their other two children and their usual manner of disciplining their children was giving them a “time out”.

The Appellate Division (an appeals court) in its decision stated a parent could “use reasonable physical force to promote discipline”. The court reversed the lower court’s decision and changed the fact that he was “indicated” for child abuse to “unfounded”.

Conclusion

Parents live in the real world with their children. Sometimes children need to be strongly reprimanded to put them on the right path, prevent them from being injured, and to drive home points which don’t seem to stick any other way. Child abuse agencies tend to be overly zealous and look at each and every indication of any physical contact between a parent and his child involving discipline to be inappropriate. The pendulum on this issue in many situations has swung too far. The decision of this court was appropriate in setting aside an incorrect ruling concerning this father.father's rights advocate

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Father Granted Supervised Overnight Visitation

September 3, 2015 By

In a proceeding before Judge Ann O’Shea sitting in the Family Court of Kings County, the Administration for Children’s Services (ACS) brought a neglect proceeding against a father. They alleged the father R.S. had neglected his daughter by committing acts of domestic violence against the child’s mother. They also claim the father had violated an existing Order of Protection which had been taken out by the mother against him. During the course of this proceeding the father was granted temporary visitation. This visitation allowed him to visit with the child for eight hours on Saturdays while being supervised by his mother, the child’s grandmother.

Further Extension of Visitation

The father has now brought a further application to the Family Court asking that his visitation be extended to supervised overnight visitation.

The attorney for the child’s mother has alleged that she opposed the father having further visitation with the child. She was not comfortable with the idea of further overnight visitation. This was in spite of the fact that ACS consented to the further supervised overnight visits by the father from Friday evenings through Saturday.

The court took into consideration that the visitation with the father was going well. The mother argued the child was not comfortable with this further expansion of the visitation and therefore the father’s visitation should not be expanded to overnights.

Judge O’Shea found the expansion of the father’s visitation was consistent with the policy of the Family Court Act and ACS guidelines for determining the appropriate level of supervision regarding family visits. The court found the ACS guidelines allowed for overnight visitation and weekend visits between a parent and a child during the pendency of proceedings in the Family Court for neglect. The court further found the extension of the visitation by the father did not expose the child to negative risks concerning physical, mental or the emotional well being of the child. The court therefore granted the father’s petition extending his visitation.

Father’s Rights

Fathers have an important role to play in their children’s lives. Where a child has two loving, dedicated parents, the child’s life is enhanced. Granting the father, in this case, expanded visitation with his child was in the child’s best interest. Family Court judges should do everything in their power to promote father’s rights to have relationships with their children in all situations where it is shown that the father is having a positive impact on the children’s lives.Long Island CPS defense for fathers

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Minimal Evidence Used To Prove Child Abuse Or Child Neglect By Child Protective Services (“CPS”)

July 30, 2015 By

family law attorney handling CPS casesWhen there are allegations of child abuse the level of evidence submitted by CPS workers and investigators can be minimal. The CPS system in New York is arbitrary, abusive, presumes child abuse or neglect in every case, and moves forward backed by the authority of New York State on incorrect interpretations of facts, and outright falsehoods. Guardians, parents and grandparents are sometimes overwhelmed when they find they have so little power and ability to contradict and counteract the actions of CPS personnel.

Family Court Proceedings Regarding Child Abuse and Child Neglect

Individuals accused of child abuse find when they go into the Family Court and expect to be able to tell their story to a judge they are confronted by judges that don’t have the time and often don’t have the patience to listen to them. CPS spends four or five minutes making their presentation and the parent then gets about two or three minutes to rebut the presentation.

Guilty Until Proven Innocent

Orders of Protection are given to the children based on inaccurate statements by CPS workers. The parents, guardians and grandparents find they are guilty until proven innocent even if the allegations of child abuse or neglect are spurious, mistaken, inaccurate and untrue. Many months go by with Orders of Protection pending, and Child Protective Services workers regularly coming to the door, and the innocent family members often feel overwhelmed and shocked at how they are treated by the legal system. Many family members who are accused of child abuse come into my office and tell me they didn’t even get a chance to speak in court. The events took place without them even having the ability to say even one word. Unfortunately, this happens much too often.

CPS The Do-Gooders

There are dedicated people who work for CPS who rescue innocent children from abusive situations. These CPS workers deserve the public’s gratitude. Unfortunately, I see too many situations where CPS creates nightmares for families who are loving, good natured and provide wonderful homes and care for their children. Innocent family members are threatened that if they don’t cooperate with CPS their children will be removed from the home. I see situations on a regular basis where a child will get bruised while playing with his or her friends, go to the school nurse and not remember how the bruise came to be. The school nurse calls CPS and then CPS shows up in the middle of the night at the family’s home, insists on coming in, investigating the children, harassing the parents, and scaring them to death with an implied threat that they will lose their children.

I recommend to everyone who calls me on a CPS complaint to take it seriously and to make no statements to CPS workers without having an attorney present and not let them in their home. I make arrangements to meet with CPS workers either at my office or at their office for the purpose of reviewing the allegations against family members. I discuss with them in an intelligent manner, without intimidation, that they are going to remove children from the custody of their parents.

Conclusion

Should you hear from CPS about a potential complaint, don’t let yourself become a victim. They have no right to come into your home no matter what they say. Advise the CPS worker that you are happy to cooperate with them, but you wish to retain counsel and your attorney will call them to deal with the issue. If they tell you that you are not entitled to an attorney, they are lying to you! You have a right to an attorney at every stage of the legal system in New York and the rest of the United States. Do not be intimidated, do not let them in your home. If you want to speak to them, speak to them at the front door. They have no right to search your home or investigate your home.Long Island family law attorney

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Uncle Found Not Guilty For Endangering Child’s Welfare

June 13, 2015 By

Ibrahim was charged in Bronx County Criminal Court with endangering the welfare of a child. The child in question was his nephew. His attorney moved for dismissal of the charges against him because they were facially insufficient.

Informant Reported The Incident To The Police

An informant had seen a small child seated on the first floor fire escape and there were no adults supervising the child. The informant looked around for nearly an hour and could not find a parent or guardian who would supervise the child. Thereafter, the informant called the police.

The police picked up the child and brought the child to the police station. Sometime thereafter Ibrahim arrived at the police station. He advised the police he was the child’s uncle.

Application To Dismiss The Criminal Charges

Ibrahim, in his application to dismiss the criminal charges against him, argued the Complaint against him was facially insufficient because it did not document that he had either custody or control of the child at the time and place of the alleged incident.

The District Attorney’s office claimed the charge did not require they show a relationship between the defendant and the child. They claimed the fact that Ibrahim appeared at the police station, acknowledged he was the child’s uncle and sought to take the child was sufficient to support the allegations of endangering the welfare of this child. The court did not agree with the prosecutors. The judge found there were no facts alleged by the District Attorney’s office showing the child was under Ibrahim’s care and control on the first floor fire escape. The judge went on further to state in his decision the prosecutors had an obligation to establish Ibrahim was in charge of watching his nephew. The prosecutors did not show he was responsible for his nephew on the date of the incident. He therefore could not be held liable for endangering the welfare of the child. Since the prosecutors did not meet their burden of proof, the case was dismissed.

father's rights attorneyElliot S. Schlissel is a father’s rights lawyer. He represents fathers with regard to allegations of child abuse and child neglect brought by Child Protective Services (CPS) or the Administration for Child Services (ACS).

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Minimal Evidence Used To Prove Child Abuse Or Child Neglect By Child Protective Services (“CPS”)

May 20, 2015 By

When there are allegations of child abuse the level of evidence submitted by CPS workers and investigators can be minimal. Guardians, parents and grandparents are sometimes overwhelmed when they find they have so little power and ability to contradict and counteract the actions of CPS personnel.

Family Court Proceedings Regarding Child Abuse and Child Neglect

Individuals accused of child abuse find when they go into the Family Court and expect to be able to tell their story to a judge they are confronted by judges that don’t have the time and often don’t have the patience to listen to them. CPS spends four or five minutes making their presentation and the parent then gets about two or three minutes to rebut the presentation.

Guilty Until Proven Innocent

Orders of Protection are given to the children based on inaccurate statements by CPS workers. The parents, guardians and grandparents find they are guilty until proven innocent even if the allegations of child abuse or neglect are spurious, mistaken, inaccurate and untrue. Many months go by with Orders of Protection pending, and Child Protective Services workers regularly coming to the door, and the innocent family members often feel overwhelmed and shocked at how they are treated by the legal system. Many family members who are accused of child abuse come into my office and tell me they didn’t even get a chance to speak in court. The events took place without them even having the ability to say even one word. Unfortunately, this happens much too often.

CPS The Do-Gooders

There are dedicated people who work for CPS who rescue innocent children from abusive situations. These CPS workers deserve the public’s gratitude. Unfortunately, I see too many situations where CPS creates nightmares for families who are loving, good natured and provide wonderful homes and care for their children. Innocent family members are threatened that if they don’t cooperate with CPS their children will be removed from the home. I see situations on a regular basis where a child will get bruised while playing with his or her friends, go to the school nurse and not remember how the bruise came to be. The school nurse calls CPS and then CPS shows up in the middle of the night at the family’s home, insists on coming in, investigating the children, harassing the parents, and scaring them to death with an implied threat that they will lose their children.

I recommend to everyone who calls me on a CPS complaint to take it seriously and to make no statements to CPS workers without having an attorney present and not let them in their home. I make arrangements to meet with CPS workers either at my office or at their office for the purpose of reviewing the allegations against family members. I discuss with them in an intelligent manner, without intimidation, that they are going to remove children from the custody of their parents.

Conclusion

Should you hear from CPS about a potential complaint, don’t let yourself become a victim. They have no right to come into your home no matter what they say. Advise the CPS worker that you are happy to cooperate with them, but you wish to retain counsel and your attorney will call them to deal with the issue. If they tell you that you are not entitled to an attorney, they are lying to you! You have a right to an attorney at every stage of the legal system in New York and the rest of the United States. Do not be intimidated, do not let them in your home. If you want to speak to them, speak to them at the front door. They have no right to search your home or investigate your home.father's rights advocate in New York

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