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Saturday, August 17, 2013

ACS cases and the removal of children under Article 10 of the Family Court Act

An attorney dealing with abuse and neglect cases definitely has to be strong willed and creative. ACS and the Courts generally tend to be very cautious and err on the side of caution when it comes to the safety of children.  I thus have to fight very hard to convince the courts that the person accused is fit enough to have their child at home with them.

I have represented not only people that in my opinion where clearly innocent of the charges against them but I have also represented people who committed the Acts as accused.  My role as an Attorney however never charges, my job is to zealously represent my clients. My strategy however does change depending upon the case.  I often have to wear many hats.  Abused and neglected children come from dysfunctional homes.  When I represent someone whose home life is in shambles, because of domestic violence perpetrated against them, drug use by them or a significant other or mental health problems, I have to not only Act as a attorney, but as life coach and social worker.  The Judge very often wants to see parents implicated by ACS make progress in their lives prior to deciding to return a child home to them.  I often find myself encouraging my clients and rooting them on to make positive changes in their life.  I have helped my clients create resumes to find new jobs and give tips on their interAction with system. I help clients set up appointments and keep appointments. I stay in constant contAct with them.  ACS cases tend to entail a lot of work but when I see a child reunited with their biological parent and the parent thanks me for believing in her, there is nothing that compares to this joy.

Article 10 establishes procedures to help protect children. Section 1011 of the Family Court Act states “this article is designed to establish proceedings and procedures to help protect children from injury or mistreatment and to help safeguard their physical mental or emotional well-being. It is designed to provide a due process of law for determining why Family Court may intervene against the wishes of parents on behalf of a child so that the child’s needs are properly met.”

Tantamount to Article 10 is the idea that the child is to be protected, it is not intended to be punitive in nature. The purpose of the statute therefore is not to punish the accused parent but to protect the child.
 

Placement of the Child Temporarily during the pendency of Article 10 Proceedings

When a child comes into the system the issue of placement frequently comes up.
 A child can be placed in the hands of ACS in a number of different ways. Children removed without Court Order especially concerns me, because a child is placed in the system prior to hearing and a finding made a Judge.


A.      Placement by Consent

One way is temporary placement with consent. For example a call comes in about a neglected, abused or injured child. Police call ACS and a caseworker arrives. After making an assessment of the child, it appears that it would not be the best interest for the child to stay in the home. One thing the caseworker and the police can do is pursuant to the Family Court Act Section 1021, ask the parent to sign consent to release the child into ACS custody. This consent must contain notice about the parent’s ability to go to court to seek return of the placed child. The person signing the consent also must be notified of the right to counsel and the right to be assigned counsel. The agency must file a petition in Family Court within three days after this consent is signed. If  possible, before consenting to agreeing to place your child with ACS, speak to an Attorney like myself so that you can be advised of your rights.

B.      1022 Placement of Child Under Emergency Situations

Another way of another way a child is placed is removal prior to the filing of a petition under Family Court Act Section 1022. Here ACS can seek an Order from a Judge directing the temporary removal of a child from his residence prior to the filing of a neglect Petition.  Generally, the law requires a Petition for abuse or neglect be filed prior to the request of removal is made by the Agency.  The filing of the Petition affords a parent a very important due process right, Notice and Opportunity to be heard.  This gives a parent an opportunity to hire or get assigned a lawyer and make arguments as to why the child should not be removed at a hearing (see Family Court Act 1027).  Under this section, an Order of Temporary Removal can be made without the parent having an opportunity to argue against it.  There are limited circumstances when a 1022 Order can be pursued:

  1. The parent or other person legally responsible for the child's  care is absent or, though present, was asked and refused to  consent to the temporary removal of  the  child  and  was informed  of  ACS’  intent to apply for an Order; and
  2. The child appears to suffer from the abuse or neglect of his or her  parent or other person legally responsible for his or her care that his or her immediate removal is necessary to avoid  imminent  danger  to the child's life or health; and
  3. There is not enough time to file a petition and hold a preliminary hearing under section 1027 (see below).

 

Furthermore, and very importantly, where appropriate,  ACS has to make a showing that reasonable efforts were made prior to the date of  the application to prevent or eliminate the need of removal.

For example, ACS receives a call that a child in a residence is improperly fed. One question the Judge may ask ACS is if they gave food stamps to the family. This would constitute a reasonable effort. The court must make particular fActual findings when determining whether or not to issue or decline to issue an Order of removal. ACS must within three days of the issuance of the Order of removal file an Article 10 Abuse or Negelct petition.

The 1027 hearing must be held no later than the next court day following the filing of the petition if the respondent is not present or was present but unrepresented.

C.      1024 Emergency Removal without Court Order

 

A common type of removal is section 1024 of the Family Court Act, which is an emergency removal. This is an emergency removal is without Court Order. Basically it entails the government taking away a child without Order and without consent. This is allowed under certain circumstances. The statute allows police officers and other officials to take all necessary measures to protect a child's life or health if there is reason to believe the child's life or health is in imminent danger and there is not enough time to apply for an Order under section 1022.  The law protects the individual person that affects removal from liability (being sued) as long as that person was acting in good faith when making the removal. Many parents I meet want to sue ACS because they feel the removal was unwarranted. Under most circumstances they would have a hard time with this lawsuit because it is difficult to prove that the person was not acting in good faith. The point of this protection from suit (immunity) is so that peace officers and other officials do not have to worry about getting sued if they've reasonably believe the child's health or safety is threatened. The threat of a lawsuit would have a chilling effect on removals (because police officers and other officials might not make the removal over fear of being sued) which potentially could endanger the health and safety of a children. D.        1027 Removal by Court Order Under 1027 the court can make an Order of removal if after a hearing it is determined that removal  is  necessary to avoid imminent risk to the child's life or health.   If the court makes such a determination that removal is necessary,  the  court  shall  immediately inquire  as  to  the  status  of  any  efforts  made by the local social services agency  to  locate  relatives  of  the  child,  including  any
non-respondent  parent  and all of the child's grandparents.
 
The court may direct that the child reside with a relative or other suitable person who has indicated a desire to become a foster parent for the child.  ACS will be directed to commence an investigation of the relative or other suitable person within 24 hours.
 
In determining  whether  removal  or  continuing  the removal of a child is
necessary to avoid imminent risk to the  child's  life  or  health,  the
court  shall consider and determine in its Order whether continuation in
the child's home would be contrary to the best interests  of  the  child
and where appropriate, whether reasonable efforts were made prior to the
date  of  the  hearing  held to prevent or eliminate the need for removal of the  child  from  the  home and,  if the child was removed from his or her home prior to the date of the  hearing  held  that  reasonable efforts were made to make it possible for the child to safely return home.
 
 
In all cases involving neglect the court may Order, an examination of the child by a  physician appointed  or  designated  for the purpose by the court. 
 
At the conclusion of a hearing where it has been determined that a child should be removed from his or her parent or other  person  legally responsible,  the  court  shall  set  a  date  certain  for  an  initial permanency hearing.
 
Dealing with the removal of your child from your home is one of the worst things that can happen to a family.  If you are being investigated by ACS, you should call an attorney immediately because when ACS is involved, removal is always a possibility. I have successfully represented parents for years in these kinds of cases.  Give me a call at 718 864 2011 if you are being investigated by ACS and especially if ACS is trying to remove a child from your home.  

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