Tuesday, May 17, 2016

A message to parents persecuted by Social Services in New York: bow low to DSS fabricating cases against you, and you may win

An interesting decision in a child neglect proceeding came out of Kings County, New York.

The court actually dismissed the petition based on a rarely used statute, Family Court Act 1051(c), before trial, because "the court's aid is no longer needed".

Child neglect petitions are very rarely dismissed, and even more rarely dismissed before trial, so the case must have really suck for the judge to have dismissed it.

Interestingly enough, while the petition was clearly frivolous, and child neglect proceedings are "civil" proceedings subject to the frivolous conduct rule, Social Services and their attorney were not sanctioned.

Here is the gist of the case - a single working mother had two children at home, one of them a baby.  The mother was the only adult watching the children on a certain day.

The mother needed to go to the bathroom down the hall from the room where the baby lay on the bed.

The mother arranged pillows around the baby as protection from falling and went to the bathroom.

The baby still fell from the bed and got a bump on her head.

The baby was not otherwise showing signs of suffering from an injury, and the mother whose job fed her family of 4 (including the two children) could not skip work and bring the child to the doctor.

The mother brought the child to the doctor only 4 days later.

This is it.  All of it.

The hospital called DSS.

The mother, frantic about the possibility of losing her children to DSS, spoke to DSS (which she did not have to do), "cooperated" with DSS by participating in any "services" DSS required her to do (which she did not have to do), and told DSS that she is ready to "do anything" that DSS would require her to do - whether DSS had any claim of child neglect against her or not.

DSS still filed the petition.

Put in a "service provider" visiting the mother's home.

Required mother to attend parenting class - while delaying referral to those parenting classes for months, despite mother's readiness and court directive that the referral be made within a couple of weeks of the court date.

Opposed the mother's motion to dismiss.

Offered the mother an ACD (adjournment in contemplation of dismissal), obviously with "admission of guilt" as DSS usually does, to forego the sticky issues from being tried, because trial is skipped if ACD is accepted, and, even if the ACD agreement is violated, the case returns to a dispositional stage because the trial was waived when the ACD was accepted.

The mother - I will give credit to her young attorneys, law students from Family Law Clinic, and their supervising attorney - rejected the ACD and proceeded with the motion.

And won.

I put some interesting points into a table, since the decision is so long (16 pages).

How the case started
A mother brought a young child to the hospital with a bump on the child’s head, the hospital personnel asked the mother how did the injury happen, the mother admitted that she stepped away from the child to the bathroom while the child was on a bed, the child fell and hurt her head

The hospital personnel, mandatory reporters of child neglect, called social services

Was a child neglect petition filed?

Yes, on October 6, 2015

What was alleged in the child neglect petition

Neglect of the child that caused the injury

Medical neglect of the child in delaying to bring the child to the hospital for 4 days after the injury

The child was losing weight, and the mother failed to keep pediatrician’s appointments to monitor the child’s weight

Derivative neglect of the other child of the same mother

The weight monitoring allegation had to come from a conversation with the child’s pediatrician.

Such conversations could only occur if the mother gave social services authority to talk to the child’s pediatrician.

Specifically, the mother had to have signed a HIPAA release for social services to talk to the child’s pediatrician.

The allegation of missing medical appointments for weight monitoring were in social services’ case notes.

The doctor himself denied those allegations in a sworn affidavit in support of the mother and claimed the mother never missed medical appointments for the child.

Was the mother a single parent?


Was the mother working?

Yes, on probation period

Were mother’s family situation and work situation known to social services?

Most likely, yes

Were allegations legally sufficient to file a child neglect petition?

No – the threshold for filing an Article 10 petition under New York Family Court Act is for a caregiver to fail to provide a minimum degree of care for the child, and thus putting the child in imminent danger of harm;

A sole parent’s trip to the bathroom while the child is unattended, but, as the petition alleged, surrounded on the bed by pillows, is not failing to provide a minimum degree of care

A sole working parent’s missing of an appointment for a young child who had a bump on her head, and delaying treatment for a bump on the child’s head by 4 days is not failing to provide to the child a minimum degree of care a parent is required to do

The alternative to what the mother did was to take both children with her to the bathroom.

If that occurred, most likely, the mother would have been charged by DSS for sexual abuse of children because she exposed in front of them.

Moreover, an adult female has private needs to be taken care of in the bathroom that children do not need to see, it’s the mother’s privacy issue.

DSS was imposing conditions upon the mother of another adult caregiver to take care of children when mother was in the bathroom, which mother, most likely, could not afford

Did social services seek removal of the child or children from home?


Did social services refer the mother to “services”?


What kind of “services” did DSS refer the mother to?
Preventive services in the mother’s home, individual counseling with preventive services provider throughout the pendency of proceedings

DSS sought referral to parenting skill classes

How did court handle the proceedings?
Court Attorney instructed DSS, at a conference on November 15, 2015, to refer the mother to parenting classes within one week of the conference

Did Court Attorney have a right to make decisions in the case?


Was referral to parenting skill classes on mother’s consent?

Yes, the mother stated that she will attend parenting classes as soon as she receives a referral
Possibly, a referral was needed for medical insurance, since the mother was

The mother was represented by two supervised student lawyers from a Family Clinic, so she must have been indigent or low-income

Did DSS do the referral


When did DSS do the referral
After mother made a motion to dismiss the petition, mother started to attend parenting skill classes on February 4, 2016, the return date for the motion to dismiss/for a summary judgment, was January 9, 2016

On January 9, 2016, 3 months into the case, while the child remained with the mother, DSS still did not refer the mother to parenting skills classes, even though it asked the court to direct such a referral, the court attorney did, and the mother consented to classes, but needed a referral

Apparently, DSS did not believe that either of the children were in imminent danger while remaining in the mother’s care
Did the child’s pediatricians express they feel safe for the child to remain in mother’s care?


Was the age of the other child listed in the court order?


Did the petition allege any neglect issues pertaining to the other child
There were allegations that in 2012 DSS filed a petition against the mother for “inadequate guardianship” and substance abuse, but DSS provided no evidence to the court as to how the case ended (Footnote 1 in the case).

Apparently, the previous petition was also legally insufficient, and DSS tried to pile up legally insufficient petitions, so that one would support the other – by sheer numbers.

Did the child have a disability?
Most likely, yes – the social worker who taught parenting skills classes refer to her class as “special needs” class

Did DSS oppose dismissal of the petition

DSS also offered an “adjournment in contemplation of dismissal” (ACD) settlement, on the returnable date of the motion to dismiss/for a summary judgment

Such settlements are usually offered with admission of guilt, so, if violated, the case returns to the court skipping the trial, to the dispositional stage.

Did the mother consent to the ACD?


Did attorney for the child oppose the mother’s motion to dismiss?

Yes in the pleadings in writing, but supported it orally at the hearing

Factors considered by the court in favor of the mother

·      Mother’s “cooperation” with DSS, participation with “services”;
·      Mother’s submission to social services, her statement that “she will do whatever DSS asked so the mother could keep her children at home and learn from that experience”;
·      Mother’s status as a single parent;
·      Mother’s status as the single wage earner for a family of 4;
·      The fact that no treatment was required for the injury
The court relied on another court case, in support of the dismissal where the parent, like the mother here, has “undertaken remedial action and completed all services that could have been part of any dispositional recommendations”.

Dispositional recommendations come when DSS have already proven that the parent neglected the child.

The mother agreed to “do whatever DSS asks” at the time of litigation when not only DSS did not prove yet that the mother neglected the child, but when DSS could not prove that based on the allegations and circumstances of the case

Aggravating factors that other courts suggested, the court considered and found not present
·      Infant was left unattended for an unreasonable amount of time under the circumstances – not present, mother only went for a short time to the bathroom, leaving the child surrounded by pillows on the bed for safety;
·      The sleeping condition of the area was unsafe – not present;
·      The contents of the sleeping area created an unsafe condition – not present;
·      The size of the sleeping surface in relation to the occupants (persons, pets and/or objects) created an unsafe condition – not present;
·      The temperature of the room or the sleeping area, including the infant’s clothing and bed coverings used, in which the infant was cared for was so extreme as to make it unsafe – not present;
·      The parent or other personal responsible for the child’s care was under the influence of alcohol or illegal drugs to the extend that such person’s judgment or physical ability was impaired to the point that such person was unable to adequately supervise the infant – not present;
·      A catchall, “another condition that a reasonable peson would understand to place an infant at risk of harm”

So, allegations in the petition made the petition legally insufficient, even if all of the allegations would be assumed as true and would be proven at trial,


Social services AND the court-appointed attorney for the child still opposed the mother’s motion to dismiss (attorney for the child – only initially, but still), pushing the court to allow DSS to prove their case at trial.

Yet, under such circumstances, proving the case at trial would have meant introduction of a surprise evidence or surprise witness which was not mentioned in the petition
Did DSS ever seek amendment of the petition by motion


Did the court recognize propriety of a summary judgment motion in a child neglect case?
Yes, but did not grant it

Did the court recognize propriety of a motion to dismiss before trial because the court’s aid is no longer
Yes, and granted the motion to dismiss

The good and bad.

It is, of course, good that the frivolous petition was dismissed.

It is bad that it was brought in the first place.

It is bad that not all parents have the benefit of the feisty law clinic representation.

It is bad that the judge did not toss the case on the legal insufficiency of claims (CPLR 3211), but instead took into account mother's cooperation with social services - at the time she was in litigation and did not have to even talk to DSS, especially that the petition was unsustainable.

The case gives hope and sets a precedent of a kind (it is not an appellate case, so it does not have full precedential power - unless, of course, DSS appeals and loses) in support of the use of FCA 1051(c) for pre-trial dismissals of child neglect petitions.

Of course, the attorneys thought they were doing their best for this particular client by bringing the motion to dismiss under FCA 1051(c) (where the focus of the court is that the court's "aid" is "no longer" needed), and not CPLR 3211 (where the pure insufficiency of pleadings would be the focus of the court)

Yet, the case sets a dangerous precedent encouraging judges to consider as factors in favor of a dismissal cooperation of parents with DSS that was obviously fabricating unsustainable neglect petitions against them, simply to support their budget for "services" (and the dismissed petition was not the first bogus petition DSS filed against that particular mother, and, since DSS did not tell the court how the first petition ended up, it is clear that DSS did not win the first petition either).

Considering positively, while reviewing motions to dismiss legally insufficient child neglect petitions, the factor of cooperation of parents out of fear to lose their children to do "anything social services require", as this particular mother did,  is encouraging DSS to proceed with fabricating cases against parents and ruling by sheer fear.

And that is plain wrong.

No comments:

Post a Comment