A New York High Court Decision on Domestic Violence:
Can a Parent Be Guilty of Neglect Simply Because She Is Victimized in the Presence of Her Children?

By JOANNA GROSSMAN
lawjlg@hofstra.edu
----
Tuesday, Dec. 28, 2004

The New York City Administration for Children's Service (ACS) was alleged to have had a policy dictating that children be removed from mothers who were victims of domestic violence. Federal District Court Judge Jack Weinstein characterized this claimed policy as a "pitiless double abuse": These women were forced to suffer the battering, first, and the loss of their children, second.

In a federal lawsuit brought on behalf of a class of mothers and their children, Judge Weinstein granted a preliminary injunction to stop the practice. He did so in part because he ruled there was a likelihood that constitutional violations would be proven at a trial on the merits.

On appeal, however the U.S. Court of Appeals for the Second Circuit sought to avoid considering the difficult constitutional questions the case presented. Accordingly, it certified several questions of statutory interpretation to the New York Court of Appeals.

(In some circumstances, federal courts may "certify" - that is, address - questions of state law to the highest court in a given state, which in New York is the Court of Appeals. This can occur when the questions are of "first impression," meaning there is no controlling state precedent on them. The idea behind the doctrine is that federal courts should defer to state courts on questions of state law.)

The federal court hoped that if the New York court were to say that the policy violated state statutes, then the difficult constitutional questions could be avoided for now. And that's exactly what the New York Court of Appeals did say, in Nicholson v. Scoppetta.

There, it held that removals are not authorized when the sole allegation is that a child witnessed his mother's being abused. As a result, just last week, the parties to this long-running class action reached a settlement.

The settlement represents a concession by New York City that automatic removal of the child in these cases is not justifiable under the state's abuse and neglect law. However, the settlement doesn't dictate how ACS should handle cases like this in the future.

The Lawsuit's Path: How It Began, and How It Progressed

Nearly five years ago, Sharwline Nicholson brought a federal lawsuit on behalf of herself and her two children under Section 1983 -- a federal statute that provides a private right of action for, among other things, violations of federal constitutional rights.

Nicholson's suit was later consolidated with others, and eventually certified as a class action. The class consisted of mothers and their children who were separated because the children were deemed neglected by virtue of their exposure to their mothers' being battered. The children in these cases had not themselves been battered, nor did they appear in danger of becoming abused. And in each case, ACS had done an "emergency" removal without any prior court authorization.

The class action lawsuit revolved around the allegation that ACS, as a policy, removed children in this situation because the mothers, as victims, were alleged to have "engaged in domestic violence."

The federal district court found that ACS had routinely removed children from mothers who had engaged in no violence themselves and, worse still, it had failed to ensure that the victim-mother had access to necessary social services.

Other findings the court made included that the agency had failed to return children when ordered by a court; that it had provided inadequate training for case managers; that it had failed to consider alternatives short of removal that might have been less harmful to the children; and that it had been unable to reform the system in a timely fashion. One caseworker had testified that it was common for the agency to wait a few days after removal before going to court because "after a few days of the children being in foster care, the mother will usually agree to ACS's conditions for their return without the matter even going to court."

On these findings, the District Court found likely violations of constitutional rights. These rights were rooted in principles of substantive and procedural due process, as well as in the Fourth Amendment's protections against unreasonable search and seizure.

On appeal, the Second Circuit addressed the question whether the District Court had abused its discretion in finding that ACS' removal practices amounted to a policy of the agency and, as such, could effect constitutional violations that were attributable to the city as a whole. ("Abuse of discretion" is the standard of review for federal appellate courts' review of federal district court's factual findings.)

The Second Circuit held there had been no abuse of discretion, and therefore let Judge Weinstein's findings stand. However, the Second Circuit stopped there. It did not, that is, reach the sticky question of whether the state could constitutionally intervene in the parent-child relationship under those circumstances. (One judge dissented, however, believing there was no proof that the actions in individual cases amounted to a "policy" of ACS.)

Instead of reaching the constitutional issues, as noted above, the Second Circuit certified several questions to the New York Court of Appeals.

Is it "Neglect" to Allow a Child to Witness Domestic Violence?

The first certified question went to the heart of the case: Is it "neglect," under New York law, for a victim of domestic violence to permit her children to be exposed to her abuse?

New York's Family Court Act defines a neglected child as one "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 parent or other person legally responsible for his care to exercise a minimum degree of care. . . ."

The New York Court of Appeals interpreted this definition to require a showing of harm (actual or imminent) and a showing that the harm is a consequence of the parent's failure to exercise proper care of supervision.

The state definition of neglect is important, as it marks the constitutional line between parent and state. Within bounds, parents have a constitutionally protected liberty interest in raising their children as they see fit. Parents are presumptively entitled to exercise complete discretion over the care, custody, and control of their children.

But there are limits to parental discretion. When parental behavior or decisions threaten the well-being of a child, the state can sometimes intervene without infringing on the constitutional rights of parents. Removal of a child under a "neglect" statute is one of the ways the state intervenes.

Because of the constitutional protection for parental rights, state neglect statutes typically require a showing of harm to a child before authorizing removal. The New York statute follows this model. In the words of the statute, a parent must only exercise a "minimum degree of care" to avoid a finding of neglect, and the presence or absence of "ideal," or even "good," parenting is not relevant.

The New York statute also requires a causal link between parental behavior and the harm, since removal of a child would certainly be unwarranted when harm befalls a child despite a parent's best efforts to avoid it.

A child may suffer crippling injuries in a car accident, for example, but that would not result in a finding of "neglect" unless, at a minimum, the parent's recklessness was the cause of the accident. The harm must be "clearly attributable" to the parent's failure to exercise the "minimum degree of care" in order to qualify as neglect.

Likewise, parents may sometimes behave recklessly in ways that do not result in actual or imminent harm to a child. Then, too, removal of the child would not be authorized.

In an earlier New York case, for example, the Court refused to uphold a removal of a child based solely on the fact that a newborn tested positive for a controlled substance at birth. While the mother had caused this situation, it was not clear whether the substance would lead to impairment or imminent risk of impairment, as required by the statute.

How Do These Standards Apply to Battered Mothers?

With respect to domestic violence in the household, it is often the mental or emotional (as opposed to physical) health of a child that could potentially be impaired. But what is the "minimum degree of care" required from a battered mother in terms of shielding her children from the abuse?

According to Scoppetta, "[c]ourts must evaluate parental behavior objectively: [asking] would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing." Of course, for a battered mother, this is a loaded inquiry.

As the Scoppetta court recognized, an assessment of the reasonableness of such a mother's actions must take into account: "risks attendant to leaving, if the batterer has threatened to kill her if she does; risks attendant to staying and suffering continued abuse; risks attendant to seeking assistance through government channels, potentially increasing the danger to herself and her children; risks attendant to criminal prosecution against the abuser; and risks attendant to relocation."

Simply recognizing the many factors that might affect a mother's decision whether to leave a household or relationship in which she was being abused reflects poorly on ACS' past practice of automatically removing children from a victim-mother. As Professor Justine Dunlap has explained, the ACS policy incorporated outdated views of battered women, in which they are presumed to be helpless and incapable of making reasonable decisions.

Because of the fact-intensive nature of a determination of "reasonableness," the New York Court of Appeals concluded that "neglect" cannot be proven by a mere allegation that the mother has been abused and that the child has witnessed the abuse.

This much was a significant victory for the plaintiff class members. But the court did not rule out the possibility of finding "neglect" by a battered mother that centers around the problem of domestic violence.

By way of example, the court noted that "neglect might be found where . . . the mother acknowledged that the children knew of repeated domestic violence by her paramour and had reason to be afraid of him, yet nonetheless allowed him several times to return to her home, and lacked awareness of any impact of the violence on the children." Yet, there, the court explained, the "neglect" does not flow directly from the abuse suffered by the mother, but from her failure to take even minimal steps to shield the children from it.

Where to Go From Here: Scoppetta's Implications In New York and Elsewhere

The decision in Scoppetta not only produced the settlement in that case, but also, commentators predict, will have far-reaching implications. In New York, emergency removals due to domestic violence are now significantly less likely to occur. And removals after due process are also less likely, given the court's view that greater scrutiny must be given to the merits of any proposed removal. (In the only appellate decision in New York since Scoppetta, a removal was upheld; but, there, the parent was the instigator of the violent episode and was already subject to supervised visitation.)

In addition, the original injunction in the case caused New York City to offer better training on domestic violence to its workers, and to review individual cases more carefully - in order to assess the actual or imminent impact of parent-to-parent violence on children in particular households.

Scoppetta is likely to have implications outside of New York, too. Many states have struggled with the treatment of domestic violence in the context of custody, visitation, and abuse and neglect. New York's approach might well cause other states to revisit harsh approaches to removals of children from the battered parent.

This would indeed be a good effect, given the tremendous harm such a removal can cause a child. While there is no doubt that a child can be harmed by living in a household plagued by violence, separation from the victim-parent and placement in foster care is rarely an appropriate solution.

Scoppetta and the changes it might induce are a victory for battered women, as well. The practice of removing children from the victim of domestic violence invokes stereotypes about mothers and battered women - stereotypes eloquently described by Professor Elizabeth Schneider in her 2000 book, Battered Women and Feminist Lawmaking. Mothers, Schneider argues, are wrongly assumed to be responsible for all harm that befalls their children, even when it comes from another source.

And, ironically, as Professor Dunlap points out, due to ACS' practice of removing children when it learned of their mothers' abuse, the very women who sought help from social services for their own victimization were "most likely to become entangled in the child welfare system."

Both Scoppetta, and New York's willingness to abandon its practice of automatic removal, are, at least, steps in the right direction for these mothers and their children.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her other columns on other family law topics -- and on trusts and estates, and discrimination, including sex discrimination and sexual harassment -- may be found in the archive of her columns on this site.

Ads by FindLaw