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Evidentiary Standards in CPS and ACS Proceedings – Part I

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

Uncle Found Not Guilty of Child Abuse

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Elliot S. Schlissel is an attorney who has been handling cases with CPS and ACS for more than 35 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.

Administration for Children’s Services (ACS) Petition Dismissed

father's rights lawyerThe Administration for Children’s Services (hereinafter referred to as “ACS”) filed a neglect proceeding in Kings County Family Court. Their petition alleged the mother did not provide her child with adequate medical care. In addition, the petition claimed the child lacked appropriate supervision. They claimed the mother left the child in the care of an inappropriate caregiver.

ACS Allegations Not Proven

The case was submitted to Judge Lillian Wan who sits in the Family Court of Kings County. Judge Wan found ACS did not establish the allegations appropriately. Her decision stated no medical records were presented to the court. There was no proof submitted to the court with regard to the child’s alleged medical problems. Although the mother had made a statement the child had chronic heart disease and the child had been treated by both a pulmonologist and a cardiologist in 2012, without further care, was insufficient to show the mother had neglected the child’s medical needs. Judge Wan went on further to state no evidence of any type was submitted to the court which showed the child was required to have further medical care.

Improper Guardianship

Judge Wan found there was no evidence submitted of improper guardianship by the mother. Judge Wan stated the mother was on leave from her job and home during this period of time with her child. Judge Wan dismissed ACS’ petition. She found based on the evidence submitted, ACS had failed to prove their case regarding inadequate medical care or lack of proper supervision by the mother.father's rights attorney handling cases with CPS and ACS

Appeals Court Allows Father to Spank His Son

Child Protective Services is extremely aggressive on Long Island with regard to situations involving parents who use corporal punishment on their children. In a recent case, an appeals court found with regard to a Suffolk County father who spanked his son, that his actions were not inappropriate and this did not constitute child neglect.

The Spanking

In October of 2012, a father spanked his 8 year old son when he cursed at an adult during a party at a friend’s home. The father was reported to Child Protective Services. In March of 2013, in a proceeding in the Family Court of Suffolk County a ruling was made against the father finding he had neglected his child. The Department of Social Services claimed he had spanked his child with an open hand at the party. When they returned home from the party, they claimed he struck his son on the legs, arms and buttocks with a belt.

Family Court Proceedings

During the Family Court proceeding the father admitted he had spanked his son at the party. He denied he struck his son with a belt when they returned home. The father appealed the ruling of the Suffolk County Family Court to the Appellate Division of the Second Department (an Appeals Court located in Brooklyn).

Appeals Court

The Appeals Court held “the father’s open handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.”

As a result of the Appeals Court ruling, the original neglect decision by the Family Court was dismissed. The evidence presented in Family Court, at a fact finding hearing, was not sufficient to prove the son had been struck by the father with a belt.

Conclusion

Child Protective Services on Long Island is extremely aggressive with regard to investigating and prosecuting parents who appropriately discipline their children with spankings when the circumstances require it.

Most parents assume when they are investigated by Child Protective Services they have to cooperate. This isn’t true. The investigators for Child Protective Services are looking for evidence usually to convict the parent of child abuse and/or child neglect, not to find the incident did not take place. The best route to take when contacted by Child Protective Services is to immediately contact an attorney experienced in handling child abuse and child neglect cases.help in handling investigations by Child Protective Services

The CPS and ACS Process

To watch today’s video blog, please click on the link below:

Elliot S. Schlissel is a father’s rights lawyer.  His office can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Father Granted Sole Custody of Child

helping father's win custodyIn a case before Judge Lillian Wan in the Family Court located in Kings County, both a father and mother brought petitions for sole custody of their child. An attorney for the child was appointed. The attorney for the child recommended the mother receive sole legal and physical custody of the child pursuant to the request of the child.

Neglect Finding

The court took into consideration that a neglect finding had been issued without admissions against the father for excessive corporal punishment. In addition there was an abuse finding against the mother based on her acknowledgment she intentionally burned the child’s buttocks. As a result of these findings the child was removed from the home.

Boy Released to Father’s Custody

The child in question, a young boy, was released to the custody of his father in March 2012. The boy has been in his father’s custody with supervised visitation granted for the mother since that time. Judge Lillian Wan found while there was a finding of neglect against the father, the finding against the mother concerning burning the child’s buttocks was a much more serious finding. Judge Wan took into consideration the boy had been living with the father since 2012 and there had been a dramatic improvement in the behavior of the father since that time. However, the court found the mother had not proven herself to be a stable, fit parent or shown remorse in therapy for burning the child.

Judge Wan reached the decision it was in the child’s best interest to give sole legal and physical custody to the father and give the mother unsupervised visits during the course of the day with the child. The mother was not given overnight visitation with the child.father's rights attorney and custody advocate for dads

Dealing with Child Protective Services – Part I

Most parents spend their lifetime supporting their children, protecting their children from harm and helping their children become successful, productive human beings. When a parent is accused by Child Protective Services (hereinafter referred to as “CPS”) of abuse or neglect it could create a conundrum for the parents. CPS’ job is to investigate allegations made anonymously concerning issues involving child neglect and child abuse. When a parent hears from CPS, the normal reaction for the parent being investigated is to be upset, angry and scared.

Child Protective Services’ Investigations

When a Child Protective Services worker comes to your home, he or she is looking for signs of child abuse or child neglect. They are interested in finding out whether a child or children have been either physically or emotionally abused. Their job is to find evidence of abuse or neglect. Their job is not to seek out information to clear you with regard to the allegations that have been made against you. When a Child Protective Services worker comes to your home, if he or she finds that your home is unsafe or inappropriate for raising children, the worker can go to court and obtain a court order to remove your children to a safe foster care family. The worker may also make recommendations to you with regard to steps to be taken to make your home safer and more appropriate for raising children.

Should You Cooperate With Child Protective Services’ Investigators?

When the CPS investigator comes to your house, the first thing you should do is get his or her name, their phone number, email address, and the name and address of the agency they are working from. The question then becomes should you allow them into your home? Should you allow them to speak to your children privately? The answer to these questions depends on the circumstances and allegations made against you. In addition, it depends on what the Child Protective Services worker will find in your home. It is strongly suggested, when allegations of child abuse or neglect are made against you, that you consult with an attorney and discuss whether you should give admittance to your home to the Child Protective Services worker and/or allow them to talk to your children.

Be Polite

Under all circumstances, it is important that you act polite and appropriate and not hostile when dealing with the Child Protective Services worker. Should you decide not to let them meet with your children or speak with them, politely tell them that you will be happy to talk with them in the future after you have consulted with an attorney.father's rights advocate on long island

ACS Unable to Prove Educational Neglect by Mother

father's rights advocatesJudge Steven Mostofsky sitting in a Family Court Part in Kings County had an action brought before him by the Administration of Children’s Services (hereinafter referred to as “ACS”). The petition by ACS stated that the mother, Malikah, had committed educational neglect with regard to her 16 year old daughter, Betthi. Betthi had been in foster care since June 2011. She was placed in foster care because Malikah was in jail at the time.

ACS’ petition had more than one allegation against Malikah. In addition, they alleged Malikah failed to maintain the mental health of her daughter Betthi.

Judge Mostofsky found ACS did not prove Malikah’s behavior was abnormal or psychotic. He also didn’t find her behavior had placed her daughter’s mental health at risk. Judge Mostofsky found ACS had not obtained information with regard to Betthi’s schooling or her test scores while she was attending school in South Carolina between 2005 and 2010. They also didn’t obtain financial educational information while she was in foster care in North Carolina. Judge Mostofsky held a hearing. Testimony was taken and evidence was submitted. At the end of the hearing, he ruled ACS had failed to establish a case of either educational neglect or mental health neglect against the mother.

In his decision, the judge pointed out Betthi graduated high school. Since she had graduated high school, the claims her mother had impaired her ability or had a negative impact on her future could not be proven. The judge therefore dismissed the petition of ACS.

What Troubles the Author

In this case, ACS had removed a child from her mother’s care for years. Years later the mother finally gets a trial after not having custody of her daughter for a considerable period of time, and the courts finds the initial allegations made by ACS years earlier were invalid! The problem in this case, from the author’s point of view, is the hearing should have taken place years earlier. Making a decision years after a child is removed from her mother’s care, based on faulty allegations, does not do justice for the mother. This reaffirms my concerns that the legal system regarding ACS cases doesn’t work properly!legal assistance when dealing with CPS or ACS

Child Abuse and Child Protection Agencies – Part II

father's rights lawyerScreening by Child Protection Agencies in New York

Although child protection agencies in New York do conduct screenings, they have a tendency to send social workers and investigators out in almost every potential situation. Parents do not understand once the system starts an investigation against them, the agency will either come up with a report that child abuse or child neglect is “indicated” or child abuse or child neglect “is not indicated”. In the event a report is “indicated”, the agency can bring a child abuse or child neglect proceeding in the Family Court. In addition, the agency will file the report in Albany and a permanent record will be made.

Appealing Child Abuse or Neglect Findings

Parents have 60 days to file an appeal challenging the decision that they have been “indicated” for child abuse or child neglect. Sometimes parents do not understand the long term impact of being in a child abuse registry in Albany. These reports can impact on the types of jobs the parents can obtain in the future. It can cause them under certain circumstances to lose their jobs. It also creates a problem in the event there is a second or later report filed against them. This could cause the removal of their children from their home.

Dealing With Findings of Child Abuse or Child Neglect

In all situations where a parent has a report filed in Albany against them and they feel the information is untrue, incorrect or unfair, they should immediately retain an attorney experienced in handling child abuse allegations to protect their rights and have the report changed from indicated to not indicated.

Mandatory Reporters of Child Abuse

There are various categories of individuals that have a legal obligation to report child abuse or child neglect in all situations where they feel it may exist. This group of individuals includes teachers, school personnel, all healthcare workers, doctors and nurses, child care providers and members of all types of law enforcement agencies. When allegations of child abuse are made by mandatory reporters, the reports are taken more seriously than those made by anonymous phone callers.

advocating the best interests of the childElliot S. Schlissel is a father’s rights attorney with more than 35 years of experience protecting father’s rights regarding claims of child abuse and child neglect.

Child Abuse and Child Protection Services Agencies – Part I

Most child abuse allegations coming into the Child Protection Services (CPS) on Long Island and Association for Child Services (ACS) in the City of New York come in by anonymous phone calls on child abuse hotlines. On a national basis, about 3.5 million reports of child abuse are made each and every year. Child protection agencies are supposed to sort out which of the claims being made are credible and which are phony or trivial. The large majority of states have a screening process to determine which claims of child abuse should be followed up and which should be ignored.

Child protection agencies have the job of seeing to it children are protected. However, what child protection agencies shouldn’t do is intervene in the private lives of families where there is actually no child abuse. Unfortunately, in the State of New York, child abuse investigative agencies err on the side of caution in almost all cases. Part of the reason for the overly aggressive behavior of child abuse investigators has to do with the fact that they are forced to make significant decisions regarding the health and welfare of children with limited information being provided to them.

Child Abuse Investigations

Upon receiving information about an alleged case of child abuse or neglect, the child protection agency may start an investigation, assign a social worker to look into the family circumstances, suggest counseling to families, and/or bring a proceeding in the Family Court in the State of New York for child abuse or child neglect. These proceedings can result in the removal of the child from the custody of the parent.

The issue that investigators and social workers for child protection agencies have is determining whether parents are mistreating their children or is this a situation where the parents are just trying to do the right thing.

father's advocateElliot S. Schlissel is a father’s rights lawyer. His law firm protects parents from improper findings of child abuse and child neglect.