As a Brooklyn, New York based ACS Defense Attorney I have successfully represented parents in all five boroughs with mental illnesses and parents alleged of having mental illness and as a result accused by Administration of Children’s Services (ACS) of neglecting their child.This representation has taken place in Family Court and before the Office of Children and Family Services (OCFS) for parents indicated for neglect. Just because a parent has a mental illness does not mean their child is in danger because of this mental illness and it does not mean that their child will be taken from them. This article summarizes the law regarding mental illness and what factors a New York Family Court or OCFS may look at in determining whether to make a neglect finding.
The United States Supreme Court has held that the “…primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” In this decision the Court held that the ability of parents to make decisions for their children is a “fundamental right” protected by the Due Process Clause of the Fourteenth Amendment and this right is more important than any other property right. Furthermore, this Court held that the ability of families to live together without governmental interference is a constitutional right. The government however is allowed to step in if a parent is abusing or neglecting their child.
The Social Services Law defines Mental Illness as
“an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act” (Social Services Law § 384–b[6][a] ).
It has been shown that a large part of the population suffers from serious and life long mental illnesses. The mental illness diagnosis cuts across class lines, affecting upper and middle class people as well as people in poorer communities. The problem is that it is rare to see parents charged in family court with mental illness unless they are poor. Upper and middle class people generally have the resources, including finances, medical insurance and family support that allows them access to optimal psychological care which is necessary for the management of a mental health condition. The lack of finances, support, insurance and access to services can put a poorer person at a disadvantage in a neglect proceeding.
Furthermore, the Court often assumes that because of a mental illness a parent may have, that they are a risk to their child. They can may make this determination even without expert testimony.
The Family Ct. Act § 1046(b)(1) provides that at a trial to determine neglect initiated by ACS through an Article 10 proceeding, “ …must be based on a preponderance of the evidence.” This is generally seen as a 51% probability that neglect occurred. These are not good odds, that is why it is wise to hire a New York ACS Defense Attorney to represent you in a neglect proceeding.
The Family Court Act defines a “neglected child” as a child, less than 18 years old, “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his or her parent or other person legally responsible for his or her care to exercise a minimum degree of care.” FCA § 1012(f)(i). “FCA § 1012(f)(i) requires the court to determine whether there is proof of actual or imminent danger of physical, emotional or mental impairment to the child before rendering a finding of neglect. A finding of neglect does not require actual injury but, rather, an imminent threat that such injury or impairment may result.”
The Court can consider prior neglect findings and the parent’s failure to address the mental health issues that lead to the prior finding to make another finding of neglect. Proof of ongoing mental illness and the parent’s failure to treat that mental illness can be the basis for a finding. The failure of the parent to treat their mental health condition is considered a fundamental defect in the parent’s understanding of the duties of parenthood.
The law also holds that a finding of neglect should be issued if there is a substantial probability of neglect.
Under FCA § 1012(f)(i)(B), persistent, untreated mental illness in a parent can lead to a finding.
Keeping your kids despite a mental health diagnosis
The law is daunting and because of that you need representation by a competent New York ACS Defense Attorney like myself to represent you. I have twenty years of experience and have argued in Court that the mere fact that a parent has a mental health disorder does not mean that they can’t care for their children. I have also successfully represented people who actually didn’t have mental illness but were accused of having it.
A parent must show a “failure to exercise a minimum degree of care” that places the child in “imminent danger” of their physical, mental or emotional condition becoming impaired. FCA § 1012(f)(i) in order to be found guilty. This does not mean perfect or even ideal care, it’s the minimum level of care. A psychiatric diagnosis or prior psychiatric hospitalization do not on their own prove neglect, although ACS may say it does. A finding may be based on a parent’s mental illness but proof of this illness alone will not support a finding. The evidence must show what they call a “casual connection” between this mental illness and harm to the children or potential harm to the children. This means that the mental illness you have been diagnosed with must have caused harm or could potentially cause harm to your children. The mental illness must affect the parent’s ability to care for their child.
For example, in one case in Brooklyn, New York, a parent was mentally unstable and suffering from hallucinations and delusions, and had refused treatment. The children were removed from their mother because of this by ACS. Despite the mother’s refusal to acknowledge her mental illness the Court ordered that her children be returned to her because the kids had near perfect attendance at school and were doing well academically prior to the initiation of the Article 10 neglect petition. The eldest child’s report cards indicated that he was performing well above grade level. Her children were up to date on medical appointments and vaccinations and were of appropriate height and weight. Since the children were thriving, the mother did not harm them and the fact that she was properly taking care of them prior to the filing of the Petition, there was no potential or risk of harm to the children.
In another case evidence was presented that the parent was in treatment for their condition and made hospital appointments for that condition prior to the initiation of proceedings, thus the case was dismissed against him.
In a case involving a two year old child, the petition was dismissed because the child was “healthy and intelligent” and had ample “food, clothing and shelter.”
Proving and disproving mental illness at Trial
As stated above proof of an untreated mental illness may lead to a finding of neglect because of harm or potential harm to the child. In order to prove mental illness, ACS may present various pieces of evidence.
ACS is allowed to use your statements to a mental health provider or social worker against you if you make an admission of mental illness during treatment if it is relevant to your treatment. They may use statements made by third parties (it could be your family or it could be a stranger on the street) made to mental health or social services professionals if made for the purpose of your treatment.
ACS may present testimony of a psychiatrist, therapist, or social worker to prove mental illness and harm or the imminent risk of harm to the child. They also may produce certified health records to prove mental illness. They may introduce school records to show that the children are not doing well in school or medical records to show that their needs are not being met because of your illness. They will submit case notes and have a case worker testify about your behavior.
This testimony may include evidence of a chronic and severe mental illness and an inability to manage it. It may include evidence of multiple hospitalizations, history of physical restraints, and an ongoing lack of awareness and insight into one’s condition. They may also show evidence of past hallucinations, hearing voices, prior institutionalizations, suicide attempts, paranoia and delusions. Evidence of a failure to follow a proscribed treatment plan can lead to a neglect finding. Evidence of an existing mental illness will certainly be introduced. A person’s denial of having a mental condition if they obviously have one will definitely be held against them at trial by ACS.
Your ACS Defense Attorney will present evidence that you are not mentally ill, if this is the case, by pointing out inconsistencies and problems with the testimony and reports submitted. If you do have a condition, this attorney will present evidence that your children were never harmed by you nor is there a risk of harm to them because of your condition.
My offices are located in Brooklyn, New York. As an ACS Defense Attorney I have been fighting on behalf of parents accused of having mental illness for twenty years. I have successfully done multiple neglect trials in New York Family Court. Although my offices are in Brooklyn, I cover all five boroughs in my representation. Call me if you need help with an Article 10 Neglect case or are having a hearing with the Office of Children and Family Services because you were indicated by ACS. ACS is quick to judge you if they believe you suffer from a mental illness and because of this your kids can be taken from you. Call me at 718-864-2011 for a free phone consultation.