Use of template agreements for ACDs with admission as TOP as a tool of coerced discovery under the threat of incarceration is unlawful under the Family Court Act 1029(b)

In child abuse/neglect proceedings, social services in New  York often use temporary orders of protection as tools to ensure access to the parents' home after removal of the children into foster care, and as a tool of forced supervision over parents and to mandate parents to speak to the Social Services, thus providing to the Social Services, outside of any formal discovery, an opportunity to testify and state that on a particular date the parent talked to them and said "A", even if the parent did not talk, or said "B".

Yet, use of temporary orders of protection for the above described purposes in child neglect proceedings is unlawful.

Child neglect and abuse proceedings in New York are creatures of statute, and what can or cannot be done in them is strictly circumscribed by the U.S. Constitution, New York State Constitution and the New York Family Court Act.

Family Court Act 1029 clearly enumerates the only bases upon which temporary orders of protection can be granted in child protective proceedings in New York, and what can or cannot be done through the temporary orders of protection.

NECESSITY OF A WRITTEN MOTION to obtain a TOP

The temporary orders of protection must be done through "applications".  "Applications" are written motions on notice to the interested parties.  Thus, temporary orders of protection (TOPs) may not be imposed without a written motion on notice to the interested parties, giving them an opportunity to be heard on the issue of imposition of the TOP or immediately after it was imposed - if imposition was on an Order to Show Cause for good cause shown.

Do not hesitate to make a motion to vacate a TOP if it was entered against you upon an oral request of social services.

NECESSITY TO SHOW GOOD CAUSE to obtain a TOP

Too often, judges give TOPs to social services simply for the asking.  That is not the lawful way to do it.  TOPs may only be given "for good cause shown", and should be vacated if they were given for the asking. 

Do not hesitate to make a motion to vacate if a TOP is entered against you for no good cause shown.

A TOP IS NOT A FINDING OF WRONGDOING - Family Court Act 1029(b)

As a consequence:

1) Social Services may not be called "a supervising agency" in the TOP - because when a TOP was granted before the adjudication of neglect or abuse and before the disposition ordering supervision, supervision cannot be ordered simply because a parent is being ACCUSED of child neglect or abuse;

2) Social Services may not seek access to the parents' home as part of TOP when children are removed to foster care, there is nothing for Social Services to do at the parents' home at that point;

3) Social Services may not seek to mandate parents to speak to Social Services as part of the litigation.  That does not serve the statutory purposes to impose a TOP one bit  Social Services may pursue, as they are entitled as part of discovery in civil child neglect/ abuse proceedings, to call parents to a deposition under oath, by following established subpoena procedure, and the same is true for parents who can call social workers at a cross-deposition.  Social Services and parents may exchange demands to produce evidence and to answer written questions under oath (interrogatories).

Yet, Social Services are not entitled to use their position as a governmental agency to force parents to unilaterally mandate parents talk to social services outside of formal discovery before trial, under the power of contempt of court and violation of the TOP (with the threat of jail time, as this is usually done by local social services).

Local social services where I practice have a template for the so-called ACD (adjournment in contemplation of dismissal) agreements that they use for TOP orders.

ACDs in social services is usually "with admission of fault", unlike ACDs in criminal proceedings which are usually without admission of guilt.

The difference is that in ACDs without admission, in case of violation of such an ACD the case is returned to the calendar where it started - before trial, and proceeds to trial.

In the child protective proceedings, where an ACD with admission is entered (and Social Services resist ACDs without admission), in case of a violation of the ACD (and Social Services can trip a parent very easily, and courts usually endorse anything social services would say), the case returns to the disposition stage, as if the trial already concluded and the finding of neglect/abuse entered.

Thus, ACDs with admission are very convenient tools for lazy and incompetent social services to skip conducting proper investigation and pleading and simply

• coerce parents into entry of, first, a TOP based on their ACD templates,
• then force a parent, through a TOP, under the threat of contempt of court and incarceration, to talk to social services and let them into the parent's home, whether the children are there or removed to foster care,
• then force the parent (who is usually represented by an assigned counsel dependent for further assignments on the court and thus prodding the client toward the ACD) into the ACD based on claims that the parent said something to the social services during those TOP-forced interviews that the parent did not say, and that social services saw something in the parent's home that was not true (but it would be the word of the perjurous social worker against the word of the parent if the case goes to trial, and the parent is made aware that social workers always win hands down);
• then trip the parent on the ACD for some bogus violation;
• then obtain a neglect adjudication without doing any investigation or proper pleading - and gain supervision over the parent, with "services" billed to the county for years.

TOPs are roads towards ACDs with admission, to child neglect/abuse adjudications on incompetent and legally insufficient pleadings and to years of supervision by social services over your life.

Therefore, it is of paramount importance to make sure that TOPs are imposed lawfully, and NEVER to allow Social Services to use TOPs as tools of coerced discovery.

Be vigilant as to the conditions that social services seek to include into the TOPs.

If a TOP is imposed without notice to you, urge your counsel to make a motion to vacate, urge the court to replace your assigned counsel if the counsel resists your request to make such a motion.

Such a motion may be the difference between you winning or losing child neglect proceedings, and between you being free or locked up in the local county jail for contempt of court if you do not want to talk to social services before the trial (a wise tactic).

And - since a TOP is not an adjudication of abuse or neglect, the court or social services may not put into the court conditions, as Delaware County Family court does and as Delaware County Department of Social Services regularly requests, "to remedy allegations as alleged in the petition".

First, there is no such thing as to "remedy allegations", second, allegations remain allegations until they are proven at trial, and a parent may not be forced to remedy what is alleged and not proven against him or her, under the threat of incarceration.

Be vigilant as to your parental rights and your civil rights.  They evaporate much too fast in New York Family court if you do not watch out.