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ACS Cases

Sunday, October 5, 2014

Court to Weigh Whether Methadone During Pregnancy Equals Child Abuse

In a case closely watched by child safety advocates across the country, the New Jersey Supreme Court is slated to decide whether a pregnant mother who underwent methadone maintenance therapy during gestation should be found guilty in family court of abuse and neglect of her infant son, who was born dependent on the drug.

In Division of Youth and Family Services v. Y.N., both the trial court as well as the state's appellate division have ruled the mother's conduct was a form of abuse and neglect, given the child was born with withdrawal symptoms characterized as severe. He had to be hospitalized for an additional 47 after he was born.

Our Brooklyn ACS defense attorneys recognize the legal reasoning and outcome here could be important for local courts in determining how to proceed in similar cases.

While other courts have held mothers who abuse drugs during pregnancy can be held accountable in criminal and family courts, this case is somewhat unique in that the mother's use of the drug was under the supervision of a doctor. At the time she conceived, she was abusing heroin and painkillers. When she learned she was with child, she began seeing a doctor. Several months later, she started on a methadone treatment program, and entered into a medical facility.

Physicians and other medical staffers warned her that if she immediately stopped using all substances, she could have a miscarriage. Not wanting to risk losing her child, she reportedly believed the best option was to undergo chemical dependency treatment under the care of a doctor.

However, both lower courts held it did not matter whether the drugs were taken legally or illegally. As the woman's criminal defense attorney would later argue to the high court, the appellate court's decision effectively held "medical treatment equals harm." Here, the mother had been told the safest course of action was methadone treatment.

Chief justices posed several possible scenarios:

Would a pregnant woman avoid liability for illegal use of drugs if a doctor told her to continue taking them because withdrawal would be too dangerous?

Would a mother who used methadone on her own, without consultation of a physician, be similarly protected?

Interceding as amicus, the National Advocates for Pregnant Women argued the woman should be cleared of any criminal wrongdoing, asserting methadone treatment overseen by a physician was reasonable for someone in her circumstances.

However, prosecutors representing the state's Division of Child Protection and Permanency, requested the finding be upheld. They say at its core, the case is about the serious risk of harm to the fetus. It was noted the mother had a six-year history of drug abuse, and used other illegal substances throughout part of her pregnancy. The prosecutor asserted to the court the mother was unwilling or unable to provide necessary protection to the child. She indicated other factors played into the final determination of abuse and neglect, but conceded the mother's methadone use was part of it.

It's worth noting there are methadone treatment centers in New York that specifically provide care to pregnant women.

Those who have undergone this treatment and are now enduring an ACS investigation should contact an experienced family law attorney as soon as possible.

Our Brooklyn ACS defense attorneys can be reached at (718) 864-2011.

Additional Resources:

Case Tests Whether Methadone Treatment During Pregnancy is Abuse, Sept. 10, 2014, By Michael Booth, New Jersey Law Journal

More Blog Entries:


Thursday, September 25, 2014

Adrian Peterson Case and the Legality of Corporal Punishment

Minneapolis Vikings' All-Pro running back Adrian Peterson is facing criminal child abuse charges that could lead to two years in prison and possibly the end of his football career after he was arrested for striking his 4-year-old-son with a "switch," or thin tree branch. He has been suspended indefinitely from the NFL while his case plays out in the criminal courts, and though not as widely publicized, there is likely a simultaneous family law case playing out as well, determining to what extent Peterson's custody or visitation schedule should be limited.

Brooklyn ACS appeals attorneys recognize that in all 50 states, including New York and Minnesota, corporal punishment is still technically legal. The problem is there is widespread misunderstanding about the law, and various cultural interpretations about what is socially acceptable when it comes to raising and appropriate disciplining of children.

There are those who will (and have) said Peterson's actions were excessive, the perpetuation of the generational cycle of abuse. But there are those who have just as quickly stated such actions are taken out of love, and necessary to raising a respectful child. It's how they were raised, too.

Statutes vary from state-to-state on the definition of what "abuse" is, but most say that to be considered "discipline," it must be "reasonable" or at least "not excessive." Delaware passed a law in 2012 indicating it may not "cause any pain or injury." Still, most courts have generally upheld parents' right to spank.

In New York just this past summer, the state's highest court determined a father's use of an open hand to discipline an 8-year-old son who used an expletive was "reasonable use of force."

Public opinion is generally overwhelmingly in favor of allowing parents to retain this right - within reason. Last year, a Harris poll indicated more than 80 percent of American parents found spanking children is "sometimes appropriate." Less than 20 percent found it is "never appropriate." While one-third said they had "never" spanked their child, two-thirds said they had done so at least once.

Those who are Southern, African-American and religiously conservative Christians were far more likely to approve of spanking than those in other groups, according to another national General Social Survey.

In the Peterson case, news reports showed photographs of the boy with some half-dozen welts on his legs. Peterson would later say he was trying to discipline, not injure. It was the way he was disciplined as a child, he noted. He would later concede, however, that he "caused an injury that I never intended or thought would would happen."

Under New York law, "children" are defined as being up from birth up to 18 years (or up to 21 if he or she has a handicapping condition). Abuse upon a child is defined as that which is inflicted on this category of individual which causes serious physical injury (such as fractures, burns, head trauma and other internal injuries) creates a substantial risk of serious physical injury or impairment of emotional health other than by accidental means.

However, while corporal punishment is legal in New York, this does not mean the New York Administration of Children's Services Won't get involved in cases of legal discipline. What one family perceives as discipline, another may perceive as abuse, and the government may intervene simply as a preventative measure. But the process can be overwhelming for the family at the center regardless.

We're here to help.

For Brooklyn ACS help, call our offices at (718) 864-2011.

Additional Resources:

Corporal Punishment: Legal and Common, By Tracy Connor, Sept. 16, 2014, NBC News

More Blog Entries:

Corporal Punishment in New York City: Discipline vs. Abuse, Feb. 18, 2014, Brooklyn ACS Lawyer Blog


Saturday, September 13, 2014

In re A.E. - Brooklyn ACS Lawyers Discuss Spanking as Discipline

Parents have the fundamental right to discipline their child as they see fit - within the confines of the law. However, our Brooklyn ACS lawyers recognize problems can arise when definitions of appropriate discipline vary.

Often a parent's cultural background and personal upbringing play a role in their views on discipline. In a place diverse as New York City, sometimes the chasm between interpretations can be wide.

The same might be said of Los Angeles, where the case of In re A.E. played out before the California Court of Appeal for the Second Appellate District, Division Eight. This case involved a young mother and father, both raised in rural Texas, who had moved to L.A. with their 3-year-old daughter.

One evening last summer, a neighbor called police after hearing a young child being spanked. The county sheriff's department responded, and found the young girl had two, six-inch welts on the back of her right leg, as well as several more on her buttocks.

The father, seemingly without hesitation, admitted he had struck the girl with his belt because she was misbehaving that day. Both parents considered spanking to be an appropriate form of discipline, though the mother denied knowing anything about welts on her daughter's legs.

The father was arrested for child abuse. After being red his Miranda rights, he told police the incident occurred when his daughter disobeyed her mother for the fourth time in less than one hour. The father was quoted as saying he did not act out of sport or fun, but "So that one day, just as I thank my parents for their care of me, she will do the same."

He indicated that he disciplined her with his belt on her butt. However, she turned at the last second, and he mistakenly struck her leg.

Following his arrest, a case worker with the state's family services agency opened a file on the family. The caseworker noted no signs of mental illness, drug abuse or any other circumstance that might indicate a danger to the child. The mother's uncle, who was temporarily living with the family, told the caseworker the parents were "good people" who were "doing their best" to raise the girl. He told the caseworker he had never seen either parent inappropriately discipline the girl.

The condition of the home was found to be safe and clean and all the child's needs were being met.The caseworker even noted the father was cooperative and motivated to change. He had even purchased a parenting book and later conceded to understanding why the discipline was not proper, and how he would react differently in the future.

And yet, a petition was filed by the state agency indicating the father was a danger to the child and should be removed from the home.

The court initially only allowed monitored visits between father and child, with the requirement he attend parenting courses. However, he was not permitted to have overnight visits in the family home.

He appealed on grounds that he was not a substantial danger to the child's physical and mental well-being. The appellate court agreed, finding the lower court failed to find by clear and convincing evidence the girl's health, safety, protection or physical or emotional well-being were in danger.

These kinds of cases can result in a substantial and unnecessary emotional and financial burden being placed on a family. Our attorneys are committed to helping your family achieve a swift and just solution to your ACS case that is in the best interest of you and your children.

For help with a Brooklyn ACS case, call our offices at (718) 864-2011.

Additional Resources:

In re A.E. , Aug. 4, 2014, California Court of Appeal for the Second Appellate District, Division Eight

More Blog Entries:

In re J.T. - Grandparent Visitation Rights in New York, Sept. 1, 2014, Brooklyn Family Law Attorney Blog


Monday, August 4, 2014

In re M.E. - Child's Health Trumps Parental Preference of Care

The right of a parent to decide the kinds of medical treatments and therapies given to their children has long been a cannon of family law. However, when those choices run counter to the child's well-being, particularly where parents refuse life-saving medical treatment for the child, courts are increasingly stepping in to take charge.

Brooklyn ACS lawyers know that in addition to intervention by state child welfare workers, there have even be some cases in which criminal charges, such as child endangerment, child neglect or even manslaughter have been filed when children became gravely ill or died as a result of parental refusal to seek medical treatment for a child, contrary to a physician's orders.

Many of these cases involve assertions by the parents that such treatments run counter to their religious faith, citing their First Amendment protection of religious freedom. The advocacy group Children's Health Care is  Legal Duty estimates about 300 children have died in the last 25 years as a result of deprivation of medical care by their parents on religious grounds.

However, there have also been cases where parents simply deemed the health care directives too invasive, or they didn't fully understand the doctor's orders or the severity of the situation. A language barrier could be a significant factor in this, and health care officials have a duty to ensure they have adequately conveyed the message to the parents before action is taken in the courts.

Most parents do act in what they believe to be the child's best interests. But courts are increasingly less willing to give parents the benefit of the doubt when the child's welfare is at stake. 

One recent example involves the case of In re M.E., before the Maine Supreme Judicial Court. This was a case involving parents who emigrated to the U.S. from Uzbekistan several years prior to giving birth to their daughter. Their primary language is Russian, though they do understand some level of English.

The girl was born in the spring of 2012, weighing 7 pounds, three ounces, which put her in the 50th percentile for height and weight. However, over the next several months, the child's weight on the growth charts began to consistently decline.

At four months, her weight had fallen to the 10th percentile. At six months, she had fallen to just below the 3rd percentile. When she reached nine months, a doctor with the facility spoke through Russian interpreters with the family to explain the girl was not thriving and needed to be consistently eating solid foods. He recommended breast feedings be spaced out, and the child be supplemented with formula.

The parents were asked to return with the child the following week. However, the parents did not return with the child until more than  a month later. At that time, the child was still not gaining weight. The doctor, again through interpreters, explained the child was at risk for permanent brain damage and cognitive and motor development delays.

The parents, however, insisted the child was simply small for her age. The doctor countered that her lack of weight gain was due to the fact that she wasn't getting enough to eat. He explained that if she didn't start gaining weight, she would have to be hospitalized.

The parents returned the following week, and the mother explained she had to stop feeding the girl formula because she'd had an allergic reaction to it. The girl was hospitalized, and a feeding tube was inserted in her nose.

She remained in the hospital for a week, and gained a "substantial" amount of weight.

Staffers then prepared to release the girl home, and through interpreters, explained how to feed the girl using the tube. The staff explained how important it was that a feeding schedule be followed, and of the need to seek help if the tube was accidentally removed.

The parents returned to the hospital several times to have the tube reinserted. On one of those occasions, the doctor learned the parents had missed some feedings because either they or the child had fallen asleep.

Soon after, the parents missed a scheduled doctor's appointment, and a visiting nurse went to the home and found the feeding tube had been taken out several days earlier and not reinserted.

At the insistence of state child welfare officials, the parents brought the girl into the doctor's office, where the father insisted he would not force-feed his daughter. The girl was losing weight. When the department initiated proceedings to put the girl in protective custody, the father became livid and threatened suicide. He was admitted to an involuntary psychiatric unit for treatment.

A subsequent hearing found the child was in jeopardy and removed her to state custody.

The parents appealed this order, but the appellate court affirmed, finding the parents could not be trusted to keep the child safe.


Tuesday, May 20, 2014

Brooklyn Child Custody Cases Can be Impacted by Drug Abuse

Alcohol or drug abuse by parents can have a significant impact on the outcome of a Brooklyn child custody claim. Many times, such issues are at the root of why the claim was brought in the first place.

But drug use or even abuse is not grounds enough to terminate a person's parental rights. Brooklyn ACS attorneys know that the courts will be looking closely at the impact substance abuse had on the child, the parent's ability to meet the child's needs and whether the parent has taken steps to curtail his or her use.

The recent case of In re Interest of J.S., before the Iowa Supreme Court, underscored that a parent's status as an addict is not grounds enough on which to adjudicate a child as one in need of state assistance, which is the first step in potential termination of parental rights.

According to court records, the case involves a 9-year-old and a 5-year-old whose mother had, according to state social workers, used methamphetamine intravenously while caring for her daughters. The social worker indicated that the residence maintained by the mother for the girls was clean, and the mother appeared to be "very nurturing" to the 9-year-old. The younger girl was staying with her grandmother in order to finish her school year in their previous hometown in Nebraska.

The mother indicated that she had retained a retail store job, but was fired when she and her daughter became sick and she missed too much work. She admitted prior methamphetamine use, saying she was clean for seven years, but then relapsed in 2012. She conceded that authorities had removed her children before due to her drug use. She later completed a court-ordered program, and the children were returned. She admitted to another relapse in March 2013, but said the girls were not present.

Later, after a period of time during which social workers could not reach her, she came into the offices at the agency's request. She indicated the girls were with her mother, she had been staying with a boyfriend and had been using. Social workers noted her odd behavior during the interview, which involved wildly swinging emotions, from laughing to crying to anger. A drug test confirmed substances in her system, and staffers who administered the test believed she was under the influence at the time.

Child protection workers arrived at the grandmother's home the next day. They found the residence to be spacious, clean, appropriately furnished and the children appeared well taken care of.

The mother stated she visited the children with the grandmother's supervision, but that she ultimately wanted the girls back in her care. She said she changed her phone number, ended a number of unhealthy relationships and was willing to attend inpatient treatment.

She did later attend outpatient treatment, but then relapsed again and was admitted for residential treatment. At this point, the state filed a petition alleging that the girls should be classified as "children in need of assistance." This essentially would take formal custody away from the mother.

The mother was not represented by an attorney in court. She did not object to any of the state's exhibits and she presented no evidence of her own. The court declined immediate adjudication, instead calling for another hearing. Yet again, the mother had no legal representation, and did not refute any of the items the state entered into evidence. 

Subsequently, the court ordered the girls to be formally placed in the care of their maternal grandmother.

At that point, the mother retained a lawyer and appealed. The appellate court reversed, finding that the state failed to meet its burden of proof to show that the girls needed to be adjudicated as children in need of assistance. The state then sought review from the Iowa Supreme Court.

The high court indicated that simply showing that a parent was a methamphetamine addict - without more - isn't sufficient evidence to establish that there is an immediate risk of physical injury to the child.

In New York, there have been cases where a parent with a history of substance abuse was chosen to be a more fit parent than other relatives. An example is Worowski v. Worowski, a 1983 decision rendered by the Appellate Division of the Supreme Court of New York, First Department. Here, the court ruled that a mother with a history of alcoholism who was improving was a more fit parent than a 74-year-old father who had little to no meaningful interaction with the child.

This is not to say that New York family courts will turn a blind eye to children who suffer as a result of a parent's addiction. However, addiction alone is not necessarily enough to warrant stripping the parent of custody rights. Every case will be different.

Consulting an experienced family law attorney is the best way to determine your options.

If you need assistance in dealing with New York ACS, call our offices at (718) 864-2011.

Additional Resources:

In re: Interest of J.S., April 25, 2014, Iowa Supreme Court

More Blog Entries:

Failure to Follow Brooklyn Child Custody Orders Can Result in Sanctions, May 1, 2014, Brooklyn ACS Attorney Blog


Wednesday, May 14, 2014

Brooklyn Child Custody Cases Can be Impacted by Drug Abuse

Alcohol or drug abuse by parents can have a significant impact on the outcome of a Brooklyn child custody claim. Many times, such issues are at the root of why the claim was brought in the first place.

But drug use or even abuse alone is not ground enough to terminate a person's parental rights. Brooklyn ACS attorneys know that the courts will be looking closely at the impact that substance abuse has had on the child, the parent's ability to meet the child's needs and whether the parent has taken steps to curtail his or her use.

The recent case of In re Interest of J.S., before the Iowa Supreme Court, underscored that a parent's status as an addict alone is not grounds enough on which to adjudicate a child as one in need of state assistance, which is the first step in potential termination of parental rights.

According to court records, the case involves a 9-year-old and a 5-year-old whose mother had, according to state social workers, used methamphetamine intravenously while caring for her daughters. The social worker indicated that the residence maintained by the mother for the girls was clean, and the mother appeared to be "very nurturing" to the 9-year-old. The younger girl was staying with her grandmother in order to finish her school year.

The mother indicated that she had retained a retail store job, but was fired when she and her daughter became sick and she missed too much work.


Tuesday, March 18, 2014

Expunging a Brooklyn ACS Case: Clearing Your Name

If a report of child abuse or neglect has ever been made against you to the New York Administration for Children's Services - even if your child was never taken away and the case was closed - there may still be a report against you on file in the New York State Central Register. 

Brooklyn ACS attorneys know that it is important to seek sealing or expungement of any old ACS records. These files could be accessed by a future employer if you ever decide to apply for a job working with children. They may also be dredged up if you ever want to foster or adopt a child or even if you try to seek custody of your own children. 

No one from the state is going to contact you to inform you that these records exist, or to let you know that you have the right to seek expungement. But chances are, if there has ever been an allegation of abuse or neglect made against you - no matter how erroneous - a file exists. 

ACS cases in New York generally follow this track: Reports of neglect and abuse of children are made to the SCR. Officials with that agency make the determination of whether a report should be investigated. If a positive determination is made, the case is then forwarded to ACS (formerly the Bureau of Child Welfare). From the time that report is forwarded, ACS personnel have two months in which to complete an investigation. 

These investigations can involve social workers conducting home visits, interviewing the children at the home and talking with teachers, doctors, relatives or clergy. 

At the close of the investigation, a social worker will make the determination that the allegation was either "unfounded," meaning there is not enough evidence to suggest the allegation was true, or "indicated," meaning there is some believable evidence that child neglect or abuse has occurred. 

In cases that are "indicated," the file is kept on file until the youngest child named in the report turns 28 years of age. An "indicated" report is available not only to potential employers and family courts, but also to police, district attorneys and child welfare agencies. 

Cases that are "unfounded" will still be kept on file until the youngest child turns 28, but they will be automatically expunged at that time. Prior to that, they will still be available to police or ACS officials if they launch another investigation into the welfare of children in your care. 

The first thing to do is to find out if the SCR has a report on you. If so, you can request to have the report sealed or expunged. However, it's possible the agency could deny your request. In this case, you have the right to request a hearing. 

In some cases, it can also be valuable to request records from any clinics, hospitals or doctors from whom you or your children received treatment in the course of your case. Some agencies can take a long time filling these requests, and if you don't make them to the proper party, they can take even longer. Here again is a good reason why having an attorney with experience. 

Be mindful that you have 90 days from the time you receive notice that your name is on an SCR file in which to initiate the process to have the case sealed or expunged. That's why a lot of times, people who make the request are told their request was not filed timely. An attorney can help you in this matter by reminding the agency of a 1988 policy memo indicating that denial of a late notice requires ACS to prove they did in fact send the notice to you of the expungement process within 90 months. In many cases, this is enough to convince the agency to reconsider your request. 

Unfounded reports are often - but not always - expunged on the first request. 

Those with indicated reports can request an administrative review to have an administrative law judge consider expungement or sealing. At this review, the court will consider your request and may even come to the conclusion that the original report was unfounded. In this case, your records can be sealed right away. If not, however, you can request an administrative hearing. 

At the hearing, the two issues to be decided will be:

  • Did neglect or abuse occur?
  • Whether that neglect or abuse is relevant and reasonably-related to your working with or caring for children?

You can have witnesses testify on your behalf at the hearing. You can present medical evidence. Educational evidence. Employment evidence. Reports on therapy or rehabilitation. Anything that would show that whatever led to the maltreatment has been addressed. 

At that point, the administrative law judge overseeing the proceedings will make a decision. Even if the judge decides against you, you have the right to an appeal. An appeal in these cases can be brought on the grounds that the decision was arbitrary, capricious or not in line with the law. 

If you need help expunging a Brooklyn ACS case, call our offices at (718) 864-2011.


Tuesday, February 18, 2014

Corporal Punishment in New York City: Discipline vs. Abuse

A mother in Massachusetts was recently arrested after patrons at a supermarket called police to report she had abused her 5-year-old son.

Witnesses say she began to spank the child while in the check-out line of the store. Onlookers urged her to stop,  but she continued. Roughly a dozen patrons then followed her out to the parking lot, wrote down her license plate number and called police. She explained she had merely been disciplining her son, an "active" child. However, she was arrested on charges of assault with a dangerous weapon on a child under 14. Local social services have opened a case file on her and her family.

Our Brooklyn family law attorneys know that parents of young children will at some point inevitably lose their temper. In some families, corporal punishment is considered a moral and effective form of discipline. There are some who argue it isn't used enough, which explains some of our societal failures.

But is corporal punishment legal in New York?

The answer is yes. However, that does not necessarily mean that the New York Administration of Children's Services won't  get involved in cases of legal child discipline. What one family perceives as perfectly normal, another may deem harsh.

These kinds of claims will often arise in child custody battles, where one parent interprets the corporal punishment as discipline, while another deems it abusive.

In the end, it's often social workers who are tapped to make the judgment call. Such a determination, even if it doesn't result in arrest, can have a profound impact on an individual and a family.

Setting aside the various moral arguments for and against spanking, let's focus here on the legal aspects.

Corporal punishment for children in New York is legal. However, parents should be mindful of N.Y. FCT. Law 1012. This law holds that a child (that is, a person under the age of 18) could be considered "neglected" when his physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired due to his parent or caregiver "unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereto, including the infliction of excessive corporal punishment."

This law is painfully broad, and is open to a wide degree of interpretation.

The state's criminal law, specifically N.Y. Pen. Law 35.10, is a bit narrower in its definition of justification for use of physical force against children. This law states that a parent, guardian or person entrusted with the care and supervision of a person under the age of 21 can use physical force (but not deadly physical force) upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.

The key work here is "reasonably," and that is open to interpretation of the court.

Some states have taken these laws a step further by specifically defining "how hard is too hard." In Texas, for example, disciplinary spanking is confined to the buttocks. A bare hand may be considered abusive, but the use of an instrument, such as a belt, may not so long as injury does not occur. A child who is bruised or requires medical attention may be considered abused.

However, New York doesn't offer up such specifics.

What is clear is that the standard for proving child abuse stemming from corporal punishment is much higher in criminal cases than in family court. So even if hitting or spanking a child for disciplinary purposes may not land you in jail, it could very well impact your ability to maintain custody of your children. The family court judge may require you to attend parenting classes or some type of anger management course - at your own expense, of course. 

In some cases, ACS may petition the court to have your children removed from your home, resulting in trauma to both you and the children.

Successfully fighting back against these sorts of ACS actions requires the assistance of an attorney who is experienced in New York family law.

Contact the Brooklyn Family Law Office of George M. Gilmer at (718) 864-2011.


Tuesday, February 18, 2014

What should I do if ACS is knocking on my door? By Brooklyn, NY CPS Attorney

In my years of representing clients in ACS cases (Administration for Children’s Services, the Child Protective Service (“CPS”) of New York City) on abuse and Neglect cases, a common thread of fact patterns generally arise.  Generally ACS opens a case based upon an anonymous tip or phone call to the child abuse hotline.  The next thing the parent knows, a full blown investigation is occurring and the parent is being called to court with the threat that their child or children is going to be placed into foster care.  Many parents come to me when they have been called to Court, perhaps even having their children already removed from the home. The parent asks me with dismay, “how did this happen?”

To me, after interviewing the client, I completely understand why the parents are in the trouble they are in.  They talked too much at the onset of the investigation. Below is a list of the Pros and Cons when dealing with ACS.

1.       ACS knocks on your door should you let them in?

 

PROS:  If you let them in, it will perhaps make them less suspicious and if a false complaint was filed against you they may quickly realize this once they interview you and your children (see my advice about allowing your children below) there is nothing wrong and may close the case quickly.

 

CONS: If you let ACS in, especially if you let them in when the house is disheveled, you’re arguing with your spouse, you are intoxicated, or before speaking to an experienced attorney,  It can open up a can of worms.  I have represented many clients, accused of a very minimal charges by ACS initially, who, by letting in ACS in caused greater problems.  For example, in one case, a client of mine was accused of neglect because a call came in that they were smoking marijuana in front of their child.  ACS was allowed into the apartment and upon being interviewed by the Case Worker the parents admitted to smoking marijuana and drinking on occasion.  The parents, who were not drug or alcohol abusers, who did not smoke in front of their child, where forced into substance abuse treatment over the threat of losing their kid. This is because they both admitted to smoking marijuana. When one of the parents missed a couple of appointments at the treatment program, their case was called into court.  Although the case was resolved without removal, their bad judgment in letting ACS in and then disclosing all of their personal information here while not under oath was not a good move. Not everyone that smokes marijuana on occasion or drinks is a bad parent, but it is the Agency’s job to make out a case against you and paint you in a bad light.

 

Thus, unless ACS is accompanied by the police or armed with a Court Order, do not allow them into your home. Send them away and tell them and call a Child Protective Attorney, like myself.   If they have grounds to enter your home the can obtain a court order to do so.  You never know what ACS will find when you let them in, so be careful.  Furthermore, unless there is a Court Order to do so, you do not have to speak with ACS and you do not have to answer their questions.

 

Remember, if you don’t let them in, it may arouse suspicions and ACS may come back with a Court Order or come with the Police to get in or a Court Order for you to appear in Court. At this point you will have to either let them in or go to Court. You will have to use your judgment, but in my opinion, if the allegations against you are not that serious, the PROS outweigh the CONS in not letting them in.

 2.       ACS after obtaining access to your apartment wants to speak with your children alone, should you let them?

 

PROS:  Once again, allowing CPS in and allowing them to talk to your children alone may decrease the aggressiveness of the agency in its investigation of you and may lead to a quick resolution of your case if nothing incriminating is found during the interview process.

 

CONS:  “Kids say the darndest things.”  I have had many clients who have allowed ACS to interview their child alone and their child throws them under the bus to the caseworker.  Kids, especially young ones, make up stories and lord knows this is the wrong time for a story to be made up.  I have had a case where a child said to the caseworker that “my mommy is an alcoholic.” The child was five years old and probably didn’t even know what that was but most likely heard daddy and mommy arguing and repeated what he heard.  The original investigation was not opened because of daddies or mommies drinking, it was for some unrelated allegation.  The child’s statement, however,  opened up a can of words an gave ACS more to investigate.

 3.       ACS wants to get HIPAA medical authorizations for you and your children, should you sign them?

 

CONS:  I would never advise anyone under any circumstances to sign HIPPA authorizations without proper legal counsel and/or without Court Order.  Very often people are forced to sign blank documents which give ACS carte blanche to conduct a fishing expedition into someone’s medical record.

 

 4.       ACS asks you if you drink or use alcohol, should you answer them?

CONS:  No, see above example. Don’t lie, just refuse to answer the question and tell them that you want to speak to an attorney.  Your admitting to use will always be used against you.

If you have a drug or alcohol problem, by all means get help for it. See a therapist go to AA meetings but as soon as you involve your use with your children, ACS will make your life very difficult.

 5.       ACS asks you if you have a prior history of mental illness.

 

See answer to Number 5. If you have mental health issues, and you know it, get help. It is your duty as a parent to do so. The Court cannot deny your rights as a parent so long as you are seeking out help for your condition. If ACS gets involved however, and you either admit to them a mental illness, you allow them into your medical history where they find it out (see the section about signing HIPPA releases) or by your actions it’s clear, you could lose your children.

What should you do if ACS is knocking on your door?

Ask them for details about the allegations. Many times, ACS will knock on your door and not even tell you what you are being accused of. If this is the case, and they do not have a Court Order, do not let them in. You have the right to know what you are bring accused of.  Ask the Case Worker to also provide paperwork to you concerning the case.  When an investigation is started on an ACS case, the agency generates a letter informing you that you are the subject of an investigation.  From the date of this letter the time starts to tick on the investigation. ACS has 60 days to complete their investigation. You want to see a copy of this letter.  If you can, try not to let them in until you talk to an attorney, if they do not have a Court Order to gain entry you have this right.

 If you have any further questions, please contact me, a Brooklyn, New York City ACS lawyer at 718-864-2011


Friday, January 24, 2014

Fighting New York Neglect and Abuse Allegations

There are perhaps few things in this world more agonizing for a parent than an allegation of abuse or neglect of a child. 

It's true the state has a veritable interest in protecting children from caregivers who are cruel or fail to meet their needs. However, our Brooklyn ACS attorneys have become familiar with a number of cases in which good parents were either falsely accused or made a genuine mistake for which they were thereafter held to unrealistic expectations in order to regain custody. 

No matter what the situation, effectively appealing an indicated ACS finding of abuse or neglect will require strong representation from a legal team with extensive experience in the field. 

The recent case of In re: K.N.D., reviewed by the Texas Supreme Court, provides a solid example of the uphill battle parents face. 

In this case, the mother appealed a family court decision to terminate her parental rights to her infant daughter and make the state the sole conservator of her daughter's care. While the appellate court upheld the state's appointment as sole managing conservator, it reversed the judgment terminating the mother's parental rights, deeming the evidence legally insufficient. However, the state supreme court reversed that ruling on the basis of the mother's care of her previous child. 

According to court records, caseworkers with the state filed a referral to the court against the mother for neglectful supervision - just one day after the woman had given birth, and while she was still in the hospital. The woman was 37 weeks pregnant when she went into labor with the child, after reportedly falling down (or possibly being pushed) during an altercation with a male roommate. 

Caseworkers indicated that the woman was a prostitute, living with both her pimp and another prostitute. Her female roommate told investigators that the pregnant woman had gotten into an argument with the pimp, he put his hands around her neck and she ran from him, causing her to fall. 

An apartment worker would later tell investigators he had witnessed the incident and that after the pregnant woman managed to get up and run into the apartment, the male kicked in the door. He had to be forcibly removed by police while the woman was transported by ambulance to the hospital, where she gave birth. 

Two weeks prior to that incident, the mother had voluntarily relinquished her parental rights to an older child because she stated she could not care for the child. This was reportedly after the court made numerous demands for her compliance, which she failed to meet. 

However, she had made no indication that she couldn't or wouldn't care for this child. 

The appellate court found that for this reason, the evidence was not sufficient enough to justify terminating her parental rights. 

However, in the state supreme court's reversal and order to remand, the justices indicated that a reviewing court can weigh a parent's history with and care of other children as a possible factor of risks or threat of the environment. So her rights to the baby girl were terminated - even though the child had only been in her care for less than one day in a hospital setting. 

The state of New York takes termination of parental rights quite seriously, but parents should still prepare for a fight. Spiteful exes (or other relatives) and overzealous case workers can be a tough match.

Some of the grounds upon which a judge can revoke parental rights include:

  • Permanent abandonment of the child for at least on year by failing to maintain contact with the child and plan for the future;
  • Legal abandonment of the child for at least six months;
  • Severe or repeated abuse of the child;
  • The presence of a mental illness that would prevent a parent from caring for the child. 

Overcoming allegations of this nature can be an enormous challenge. To learn more about how we can help, call us today. 

To fight Brooklyn ACS allegations, call the offices of George M. Gilmer at (718) 864-2011.

Additional Resources:

In re: K.N.D., Jan. 17, 2014, Texas Supreme Court

More Blog Entries:

Brooklyn Child Support Attorneys Can Help Establish Voluntary Underemployment, Jan. 15, 2014, Brooklyn ACS Case Attorney Blog

 


Thursday, December 26, 2013

Fighting New York ACS for Child Reunification

For anyone sparring with New York's Administration for Child Services for reunification with their children, there is perhaps no time like the holidays to remind you why you're fighting.

December is one of the most difficult months for a family to be apart, and the new year is a reminder of how much precious time you are losing. In fact, Brooklyn ACS attorneys recognize that the more time passes with your child in foster care, the less likely reunification becomes.

The median length of foster care stay prior to reunification is six months. After that six months, though, research suggests the chances of a successful reunification begin to dwindle. However, there may be ways that you can expedite the process and bring your child home sooner. 

A recent report by the state's Child Welfare Advisory Board revealed that the number of children taken from their homes and placed in foster care has been significantly reduced over the last six years, from 12,000 foster care placements down to about 6,000. Officials attribute this to better training and lesser caseloads for child welfare workers responsible for making emergent decisions regarding child placements. 

But the truth is, mistakes still happen. That's why strong legal representation is important. 

The reasons for the foster care placement are going to be important in determining the strategy that will be employed. One of the best things an attorney can help you negotiate are realistic terms and conditions for reunification. Many parents are eager to have their children back, but find the benchmarks set by the court is sometimes out of reach.

Federal law requires that state agencies make reasonable efforts to provide assistance and services to parents to make removal a last-resort option in the first place. The idea is that if, for example, you are poor and can't buy food, you shouldn't be punished by having your children taken away. Rather, the state should make efforts to help you better provide food for your children. 

The same concept can be applied when it comes to requirements to become drug-free or to secure stable housing. 

The only time states aren't required to make reasonable efforts is when there are some mitigating circumstances, such as long-term incarceration, severe mental illness or abandonment. New York Soc. Serv. Law 384-b(7)(f) defines reasonable efforts, while Soc. Serv. Law 358-a(3)(a) spells out when they are required and Soc. Serv. Law 358-a(3)(b) spells out when they are not required.

But that is only relevant in a small number of ACS cases. Most of the time, the court's goal will be reunification.

Many times, reunification can be achieved more swiftly if the parent has an advocate from the start, beginning with the initial placement process. Even if ACS determines that a child must be removed from parental custody, placements with extended relatives tend to result in more successful reunifications because they keep parents and children connected. This is a powerful motivator for the court to eventually return the child to parental custody, as judges don't typically want to be known for keeping families apart. Having an advocate to argue this point for you at the outset can set the tone for the rest of your case. 

The next part of the process includes setting realistic goals. That might mean attending drug treatment. It could be adherence to probation requirements. It might be following through on efforts to secure gainful employment. Your attorney can help you determine what those might be for you so that they can be convincingly presented to the judge overseeing your ACS case. 

OurACS case attorneys in Brooklyn can be reached at (718) 864-2011.

Additional Resources:

Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children, Oct. 2012, Child Welfare Information Gateway

More Blog Entries:

New York City Child Custody Cases Must Afford Both Parties Due Process, Dec. 20, 2013, New York City ACS Case Attorney Blog


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