Child neglect proceedings against parents instead of PINS or juvenile delinquency proceedings against the child: a way for social services and law enforcement to obviate your child's right to remain silent

Juvenile delinquency and PINS (persons in need of supervision) proceedings in New York provide to the child constitutional protections, such as a right to remain silent throughout the proceedings.


Child neglect proceedings are not brought against the child, but against parents for lack of supervision of the child, and thus, do not provide to the child a right to remain silent.  Instead, in child protective proceedings the child does not usually testify and instead social services workers usually testify claiming, under the statutory "child hearsay exception", that the child allegedly made "statements" to social services, whether it happened or not, because it is unverifiable and such interviews between social services and the child are not usually audiotaped or videotaped in New York.


I have noted that social services in the state of New York started to bring child protective proceedings against the parents when they insist on their child's right to remain silent in interrogations by social services and police which can likely result in PINS and juvenile delinquency proceedings.


By bringing child neglect proceedings against the parents instead of juvenile or PINS proceedings against the child, CPS gets to remove the child based on hearsay evidence (rumors), place the child in CPS' own custody and interrogate the child at their heart's desire based on their own consent as the legal custodian of the child, thus obviating the child's right to remain silent under PINS and juvenile delinquency.


Even if the child is not removed and remains in parents' custody, CPS creates a conflict of interest for the parents to protect their child's interests on the child's behalf, because in child neglect/abuse proceedings parents' interests are adverse to the child's.


Yet, since in child protective proceedings against parents the child's right to remain silent is not a concern, assigned attorneys for the child who often depend on such assignments on a continuous basis and, thus, may consider it a better strategy, for personal reasons, to allow CPS unlimited access to the child for any reason or purpose.  CPS, in its turn, may allow access to the child by police and other law enforcement authorities, and may commence PINS or juvenile proceedings against the child afterwards, claiming that they have gained access to the child and interviewed the child on consent of the child's counsel.


In New York, parents have no standing to address malpractice or conflict of interest and disqualification of the attorney for the child.  The child him/herself is incompetent to do that.  New York did not designate a body or person who would be able to do that on behalf of the child. 


Thus, the child is without proper defense and without recourse when social services choose to file a child protective petition while meaning all along to target the child in the nature of a PINS or juvenile delinquency proceeding. 


I believe that such a practice of social services to file a child protective proceeding against the parent where what social services and the law enforcement are seeking is self-incriminating statements from the child, which would have been protected in PINS and juvenile delinquency proceeding by a statutory and constitutional right of the child to remain silent, is unconstitutional.


By this post I alert the public as to such a practice and potential for abuse of power for the CPS against children.


Since child neglect proceedings are secret, records of such proceedings are not open to the public and majority of child neglect adjudications (court orders) are not appealed, and thus are not reflected in case law on public archives of appellate courts, I am not sure how wide-spread this policy is, yet, I know about a case where such a tactic was used.


I believe that the public should be aware of this particular tactic used by CPS to obviate the child's right to remain silent in investigations in the nature of pre-PINS and juvenile delinquency proceedings.

Are child neglect/abuse proceedings civil, criminal, quas-criminal or administrative?

New York State Family Court Act and multiple court rulings say that child abuse and neglect proceedings are civil in nature.

Yet, comparison of various features of child neglect and abuse proceedings shows that while procedural protections for respondents in New York State child abuse and neglect procedures are lower than in regular civil proceedings and are similar to those in administrative proceedings, other features of child neglect proceedings makes it similar to a criminal action.


I have put together a table comparing criminal, quasi-criminal (undefined in New York), child neglect/abuse, regular civil proceedings and administrative proceedings.   I plan to publish a book on child neglect and abuse proceedings in New York which will cover such proceedings in minute details, certainly with a bibliography.  The table presented here is simply a preview, it does not contain references to statutes and cases.


The U.S. Supreme Court has long overruled the State of New York preponderance of the evidence standard in Santosky v. Kramer for termination of parental rights.  My firm belief is that all proceedings leading to such termination, child neglect proceedings included, must be held at least to the same standard of proof, by clear and convincing evidence.  I also believe that review of evidence in child neglect proceedings must be subject to strict scrutiny if children's biological parents are involved since it is infringing upon a fundamental constitutional right of parents to care and control their children.


Children are removed in New York, and Family Court confirms such removals, based on hearsay evidence alone, which means that your child may be removed based on anonymous malicious gossip.  After the child is removed this way, the court will be cautious to return the child, even after a fact-fnding hearing held to allegedly a higher standard, but where hearsay is still admissible wholesale through the so-called "certified case notes" of the social services.


Such removals based on malicious rumors obviously do not comport with the Santosky v. Kramer clear and convincing evidence standard, yet they form the foundation for the future possible termination of parental rights.


Removal of adoptable children to foster care by social services based on hearsay evidence becomes even more suspicious when federal financial incentives to the states for adoption out of foster care are considered, see my previous post in this blog. 


If parents committed a crime against their children, then criminal proceedings, with their constitutional protections for parents, should be filed and prosecuted by the appropriate bodies.


It is my belief, based on my research and practice of law in child neglect cases that what exists at this time in New York in the form of child neglect/abuse proceedings is a monstrous civil/criminal hybrid which ruins people's lives, breaks families, destroys reputations and ruins chances of employment based on malicious rumors from disgruntled neighbors, competitors, ex-partners etc., certified as case notes of social services.


Moreover, by law New York State Family Court is not authorized to review issues of constitutionality of the statute through which the Family Court receives jurisdiction, only the Supreme Court of the State of New York has such power.


Thus, constitutional issues in Family Court child neglect proceedings get overlooked, not resolved, and then the appellate court rejects constitutional claims raised for the first time on appeal, because such claims were not raised in the court below, a court which has no authority to resolve such claims.


If a parent wants to raise constitutional issues in parallel federal civil rights litigation, a number of abstentions will immediately be raised, and many parents would be afraid to sue the Family Court and bring the court and the presiding judge into the federal lawsuit as a necessary party defendant, for fear of retaliation.


New York state child neglect/abuse proceedings are more like administrative proceedings in their wholesale admission of hearsay from any sources, including anonymous sources, while such proceedings resemble criminal proceedings in allowing the court to issue bench warrants for production of respondents if petitioner is unable to personally serve respondents or if respondents did not appear. 


Parents are brought to court in child neglect proceedings under the threat of a bench warrant, must testify in rebuttal in their defense, possibly incriminating themselves, while provided no immunity from future criminal prosecution by the court.


Moreover, in child abuse proceedings  in New York, the local district attorney is a necessary party in such proceedings, sitting there for purposes of picking up that incriminating testimony and using it in commencing and prosecuting criminal proceedings against such parents.


Thus, in child neglect and especially child abuse proceedings, the 5th Amendment right against self-incrimination goes out the door and the parent is faced with a truly "Hobson's choice", to testify and waive his or her constitutional rights in any criminal proceedings that may be brought against her based on her testimony, not only for endangering welfare of a minor, but, let's say, for perjury, fraud or any number of other crimes that the district attorney may choose to charge her for, or not to testify, allow the proceeding based on malicious rumors to go forward and lose her child.


Such a criminal/administrative hybrid, in my belief as an attorney, is monstrous and unconstitutional and calls to abolish the Family Court Act pertaining to child neglect proceedings and to rebuild and re-enact it, with respect to constitutional rights such proceedings infringe upon and with respect to procedural protections that such proceedings must provide to the parents and other respondents.

Feature	Criminal court proceeding	Quasi-criminal proceeding	Child abuse and neglect proceedings	Civil court proceeding	Administrative Proceeding
(1)     If the Defendant/Respondent cannot be found for personal service	A bench warrant is issued	Procedure is not set in New York	A bench warrant is issued	Plaintiff/Petitioner may be allowed to serve by substituted service and then enter a default	Same as in civil proceedings
(2)     What if the Defendant/Respondent was served and did not appear on the appearance date	A bench warrant is issued	Procedure is not set	A bench warrant is issued	A default is entered	A default is entered
(3)     Nature of procedure provided by statute or court ruling	Criminal proceeding	Procedure to define quasi-criminal proceedings is not set in New York	Civil proceeding	Civil proceeding	Civil proceeding
(4)     Standard of proof	Beyond the reasonable doubt	Procedure is not set	Preponderance of the evidence/ (there can be parallel criminal proceedings on the same evidence for endangering welfare of a minor, a misdemeanor in New York)	Preponderance of the evidence, or clear and convincing evidence in certain types of cases alleging criminal activity	Substantial evidence
(5)     Right to remain silent	Yes	Yes	Yes	Yes	Yes
(6)     Permission to the court to draw negative inferences if Defendant’Respodent remains silent	No	Procedure is not set	Yes	Yes	Yes
(7)     Availability of jury trial	Yes	Procedure is not set	No	Yes, with the exception of special proceedings	No
(8)     Admissibility of any hearsay at pretrial hearings	No	Procedure is not set	Yes	No	Yes
(9)     Admissibility of hearsay at the trial	No	Procedure is not set	Yes Any hearsay is admissible through certified notes of social services, child hearsay is admissible with easy corroboration by hearsay, Delaware County Family Court introduced “mandatory reporter hearsay exception”, affirmed on appeal	No, but common law and statutory exceptions apply	Yes
(10) Admissibility of statutory hearsay exceptions	Prohibited by the Confrontation Clause	Procedure is not set	As per Family Court Act: Child hearsay exception (requires corroboration, but corroboration is easily achieved); Social services records hearsay exception (as long as records are certified as social services business records, anything in them comes in for the truth, without regard to duty of declarants to report to the Social Services as part of the business);	CPLR 4518, business records exception	All hearsay is admissible
(11) Mandatory reporter of child abuse and neglect hearsay exception	No	Procedure is not set	Not in the statute, but is applied by Delaware County Family Court and was affirmed on appeal by the 3rd Department	No	Any hearsay is admissible
(12) For hearsay business records exception, requirement that declarant must have a duty to report truthfully in order to run the business properly	N/A Hearsay is not admissible in any format under the Confrontation Clause	Procedure is not set	No Social Services collects hearsay for its certified case notes from the general public that has no duty to report truthfully to Social Services; Mandatory reporters must report on a suspicion, without any investigation or knowledge of the  truth or falsity of allegations, under the threat of criminal prosecution for non-reporting and under protection of  immunity when report is made under a mere suspicion without investigation	Yes All hearsay exceptions exist under the notion that the hearsay declaration is truthful under the circumstances	No
(13) Applicability of the prohibition on hearsay prepared for purposes of litigation	Yes	Procedure is not set	No	Yes	No
(14) Hearsay by unknown declarants	No, confidential informants have to testify at criminal trial in open court, Confrontation Clause	Procedure is not set	Yes, indicated reports from New York State Office of Children and Family Services based on reports of anonymous reporters	No	Yes, all hearsay is admissible
(15) Is the damage to the public presumed?	Yes	Procedure is not set	Yes, in derivative neglect proceedings, for the original proceedings, the harm or imminent risk of harm must be proven, but is often presumed from the nature of activity	No, damages are an element of the tort/civil proceeding action, if damages are not proven, the case must be dismissed   Exceptions: harm is presumed in certain types of defamation actions once liability is established, but damages must still be established	Yes, administrative enforcement proceedings are mostly strict liability proceedings