New York Criminal Attorney Blog

Tilem & Campbell senior partner Peter H. Tilem was on Channel 2 News tonight talking about the "Bus Matron" case. The case, which had gotten media attention in the past, has been getting additional attention due to the unusual age and procedural history of the case. This misdemeanor case which is more than 5 years old has been twice dismissed by the trial Court and twice restored by the Appellate Court who reversed the dismissals.

Back in 2006 the case was dismissed after the trial Court suppressed audio tapes that were the result of what the Court considered to be illegal eavesdropping. Then in 2009 a second judge in the Criminal Court in Brooklyn dismissed the case based upon what the trial judge found to be a violation of New York's speedy trial statute.

At Tilem & Campbell, our lawyers are used to taking on Child Protective Services and the maddening delays and confusion associated with the State Child Abuse Registry. A federal lawsuit filed in 2004 and just settled, challenged the Office of Children and Families for delaying fair hearings usually over a year while people on the registry either lost or could not get jobs. Others were simply denied hearings altogether because New York State arbitrarily decided that the people who requested the hearings sometimes waived them. In a settlement approved by Federal District Judge Shira A. Sheindlin last week, The New York State Office of Children and Families has agreed to complete hearings within 4 months for everyone whose job is affected by the finding and 8 moths for everyone else.

In a sign that the Office of Children and Families is attempting to reduce some of the backlog, this firm has already received at least one call from the State indicating that they will not be going forward on a hearing against one our clients and therefore agreed to an amendment of the finding of Inadequate Guardianship.

In our experience, the State rarely wins these hearings if they are challenged and the tactics of delay and confusion are nothing more than an attempt to deny people their right to a hearing. This settlement should be welcome news for anyone who finds themselves entangled in the Child Abuse system in New York.

In addition, we find that often after we timely demand a hearing by certified mail, return receipt requested that the State often notifies the firm that our request for a hearing is too late.

In sum, navigating the New York Child Abuse system can be a nightmare. Without an experienced child abuse attorney in can be almost impossible. Hopefully, this settlement will be a step in the right direction. If you have any questions or comment, do not hesitate to contact us.

Tilem & Campbell senior partner, Peter H. Tilem won a huge Court victory after his client was found not-guilty of all charges in connection with an Attempted Rape in the First Degree case stemming from a 2008 incident in Queens. The client had been facing up to 15 years in prison if convicted of Attempted Rape and up to one year in jail if convicted of Endangering the Welfare of a Child. The victim was less than 10 years old at the time of the alleged incident. The incident was not reported to the police until January of 2009.

An investigation by Tilem & Campbell during the pendency of the case revealed numerous inconsistencies in the statements made by the alleged victim to police officers, prosecutors and doctors. A Queens County Assistant District Attorney became an important defense witness in the case.

Mr. Tilem represented the client at trial, but Managing Partner John Campbell handled all pre-trial litigation, and Associate Jean Melino successfully handled motion practice which directly resulted in the preclusion of key prosecution evidence.

Although the client was originally charged with Rape in the First degree, the prosecutor only sought an indictment for two counts of Attempted Rape in the First Degree and Endangering the Welfare of a Child. "The prosecution seemed to change their theory", according to Tilem. The defense strategy relied heavily on the many inconsistencies in the alleged victim's story.

Tilem & Campbell is a New York criminal defense firm located in White Plains, New York. You can contact the firm by calling 888-ANY-CRIME.

Leaving a young child home alone can and often does lead to a parent being charged with Endangering the Welfare of a Child under the New York Penal Law. But at what is age is a child old and mature enough to be left home alone in New York? While some prosecutors choose to charge parents who leave young children (and even teenagers) home alone with Endangering the Welfare of a Child, the reality is, there is no set age in New York for a child to be left alone. The determination is based upon several factors including the age of the child, the maturity of the child and the length of time the child is left alone.
In fact, the City Court of Mt. Vernon has held that leaving a six-year-old child at home alone for one hour during the night, without more, is not criminal and does not support a charge of Endangering the Welfare of a Child. (See People v. Seward, 173 Misc. 2d 1020 (City Ct. Mt. Vernon 1997). The Seward decision cited Augustine v. Berger, 88 Misc. 2d 487 (1976), where the Suffolk County Supreme Court held that leaving a one and a two year old alone for a half hour at night did not amount to maltreatment under the Family Court Act. Similarly, the Kings County Criminal Court has held that leaving a five, seven, twelve and thirteen year old home alone without more supporting facts is insufficient to support a charge of Endangering the Welfare of a Child. People v. Smith, 178 Misc. 2d 350 (1998).
For more information about this, and other criminal law issues, please contact Tilem & Campbell toll-free at 1-877-377-8666 or visit the web at www.tilemandcampbell.com.

The number one concern of parents/guardians who find out they are the subject of a child protective services (CPS) abuse and/or maltreatment (neglect) investigation is whether CPS can remove their children from their home. To summarize, as I wrote in my previous blog, your child can be taken without a court order by CPS when they have reasonable cause to believe that letting the child remain with you would pose an imminent threat to the child’s health or life and there is not enough time to obtain a court order. (See NY Fam. Ct. Act §1024; Soc. Serv. Law § 417).

However, what many people don’t realize is that hospitals and other similar institutions can hold your child under certain circumstances. New York Soc.Serv. Law § 417(2) authorizes hospitals and other institutions to hold your child for twenty-four hours if “the facts so warrant.” The “imminent danger” necessary for CPS to remove your child is not necessary for a hospital to hold your child for twenty-four hours.

The authority for a hospital to hold a child for twenty-four hours is much broader than the authority granted CPS to remove a child from his or her parents/guardian since “imminent danger” need not exist. This “twenty-four-hour hold” period gives hospitals time to contact CPS and hold the child until a CPS investigator can arrive. It prevents a parent/guardian from simply leaving with the child where it is apparent to that parent that hospital medical staff has concerns about abuse and/or maltreatment (neglect). A hospital might hold a child when the child is brought in with suspicious injuries indicative of abuse or excessive corporal punishment.

And while this authority granted to hospitals and other similar institutions is referred to a as a “twenty-four hour hold”, in reality, the child can be held until the next regular weekday session of the appropriate Family Court. Therefore, if a hospital decides to hold a child on a Friday night, the hospital is authorized to hold that child through Monday morning.

If you are the subject of a Child Protective Services or Administration for Children’s Services investigation involving allegations of child abuse and/or maltreatment (neglect), contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com

Our firm represents many parents and guardians who are the subject of child abuse and/or maltreatment (neglect) investigations throughout New York City, Westchester, Rockland, Dutchess, Putnam and other downstate counties. The first question almost everyone who is the subject of such an investigation asks is: “Can they take my kids?”

Your child can be taken without a court order by the police, child protective services and even you doctor when they have reasonable cause to believe that letting the child remain with you would pose an imminent threat to the child’s life or health and they believe there is not enough time to obtain a court order. (See NY Fam. Ct. Act §1024; Soc. Serv. Law § 417). Therefore, before your child can be removed, there must exist an imminent danger to the child’s life or health and not enough time to obtain a court order. The person who removes a child from the home must make every reasonable effort to inform the parent or guardian where the child has been brought. (See NY Fam. Ct. Act §1024(b)(ii)).

The New York Court of Appeals has interpreted section 1024 of the Family Court Act strictly thus limiting the practice of emergency removals. See Nicholson v. Scoppetta, 3 N.Y.3d 357 (2004). It is not enough that the child “appear” to be in imminent danger; the child must in fact be in imminent danger. This eliminates any polices where Child Protective Services err on the side of “safety” and remove as matter of course.

Emotional harm or the risk of emotional harm will almost never be a sufficient reason for the emergency removal of a child. Nicholson Some example which could result in removal would be where the parents were assaulting the child; the child was not being fed; the child was not being provided shelter or needed medical care; or the child was left alone at a young age.

If your child has been removed or if you are the subject of a Child Protective Services investigation, contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

Generally, our medical records and our children’s medical records are private and our medical providers may not them. (See NY CPLR 4504(a)). This “privacy” or privilege from disclosure is based upon what is referred to as the “doctor-patient” privilege. However, in New York, when a mandated reporter makes a report of suspected child abuse or maltreatment/neglect that actually results in an investigation by a Child Protective Services agency, that mandatory reporter must comply with CPS’s request for records “relating to such report” including the medical records of any patient or client of that mandatory reporter that are “essential for a full investigation” of the suspected child abuse, maltreatment or neglect. (See Soc. Ser. Law 415)).
This applies to doctors or other quasi-medical personal who report suspected child abuse, neglect or maltreatment. In other words, if you take your child to the doctor and the doctor finds a bruise that leads him or her to suspect abuse (even though the bruise was from a football game in the backyard) and file a report, your doctor must comply with a subsequent CPS request for any records of any of his or her patients or clients which relate to the report the doctor filed.
Therefore, not only might the doctor have to provide that child’s records, he might also have to provide the medical records of your other children if they would be essential to a full investigation by CPS. Furthermore, should your child be older and thus going to your doctor, your medical records might be turned over to CPS if they are deemed essential to a full investigation by CPS of the suspected abuse, maltreatment or neglect of your child.
Being the subject of a CPS investigation can be terrifying. You will realize immediately that the rights you thought this Country cherished simply don’t exist. Many New York Child Protective Service agencies and their investigators push the outer limits of the law with many actually operating outside the law.
If you even suspect you might be the subject of a CPS investigation in New York, call Tilem & Campbell toll free at 1-877-377-8666 for a free consultation or contact us through our website.

In addition to the mandatory reporters I previously discussed, the Social Services Law specifically authorizes “any person” to make a report of suspected abuse or maltreatment when they have reasonable cause to believe a child is the victim of abuse or maltreatment. (Soc. Ser. Law § 414). While seemingly supported by good intentions, the ability of anyone to make a purely anonymous report of abuse or maltreatment poses a tremendous problem because New York treats any complaint, whether from a known source or a purely anonymous caller, the same. Each triggers what can probably be described as the most intrusive, humiliating, frightening and, far too often, constitutionally improper investigations into the inner most private workings of a family. And to repeat, this can all be triggered by a purely anonymous “tip”.
It is because New York treats anonymous reports the same as reports from known mandatory reporters; the nosey neighbor, the angry neighbor, the spurned ex-lover, the “do-gooder” we all can’t stand, the disgruntled parent, grandparent, uncle, aunt or any variety of wackos can throw one’s life into turmoil with a simple anonymous report to an abuse hotline. There have been cases where families have gone through entire investigations and hearings because a passing motorist saw a child “unattended” in the driveway of a home. Imagine you are watching your child from the porch, just 10 feet away, and because some passing motorist sees only your child, you become the subject of an abuse or neglect investigation.
If the allegations contained in the report, whether anonymous or from a know source, “could reasonably constitute a report of child abuse or maltreatment”, or “if true would constitute child abuse or maltreatment”, the report must be transmitted to the appropriate local child protective agency for investigation (Social Services Law § 422[2][a], [b] ). Therefore, as long as the false report made by an anonymous ex-boyfriend, disgruntled ex-spouse, nosey neighbor or whomever, makes out a plausible claim of abuse or maltreatment, you will be investigated. I have personally handled cases where a single parent has been the subject of repeated false anonymous reports all of which resulted in an investigation.
If you have been notified that you are the subject of a child abuse, neglect or maltreatment investigation by a child protective services agency or by the police, you have rights and you must know them. Contact Tilem & Campbell toll free at 1-877-377-8666 for a free consultation or visit www.tilemandcampbell.com.

In an effort to identify those children who might be the victim of abuse or neglect, certain individuals who are in a position to observe signs of abuse and/or neglect are required by law to make a report when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is abused or maltreated. These individuals are referred to as “mandatory reporters”. (See Soc Ser. Law § 413).
Almost all reports of abuse or maltreatment are made by “mandatory reporters”. The list of mandatory reporters is quite long and includes physicians, dentists, nurses, social workers, school officials, substance abuse counselors, police officers, and assistant district attorneys. When one of these mandatory reporters has reasonable cause to believe your child has been abused or maltreated, they are required by law to report such suspected abuse or maltreatment in accordance with Soc. Ser. Law § 413(1)(b) & (c).
Employers of mandatory reporters must provide new hires with written information explaining their mandatory reporting requirements. (See Soc Ser. Law § 413(2)). Any state or local agency that licenses or issues certificates to day care facilities shall provide the licensee with written information regarding mandatory reporting requirements. (See Soc Ser. Law § 413(3)). Finally, any agency, employer or other organization that employs mandatory reporters who travel, in the normal course of their duties, to where children reside must provide those mandatory reporters with information or how to recognize an unlawful methamphetamine laboratory. (See Soc Ser. Law § 413(4)). As a result of mandatory reporting laws, most reports of child abuse, neglect and/or maltreatment are made by school employees or doctors who observe signs of abuse, neglect and/or maltreatment.
If you are the subject of a Child Protective Services, Administration for Children’s Services or a police investigation, contact Tilem & Campbell toll free at 1-877-377-8666 or visit www.tilemandcampbell.com for more information. You do have rights and you should know them.

The New York Post printed a full page article yesterday on the dismissal of the bus matron case that was defended by New York criminal defense firm Tilem & Campbell. As explained in our last blog the case involved a school bus matron charged in Brooklyn Criminal Court with failing to assist and taunting an autistic boy as he banged his head against a school bus window in Brooklyn.

Kings County Criminal Court Judge Gilbert Hong dismissed all charges against the bus matron earlier this week after criminal defense lawyers Peter Tilem and John Campbell argued that the Brooklyn District Attorney's Office had violated the bus matron's speedy trial rights during the three and a half years that the case was pending.

Tilem & Campbell had this case effectively dismissed back in 2006 after another Brooklyn Criminal Court Judge suppressed the tape recordings as illegal wiretap evidence but the Appellate Term of the Supreme Court reversed and the case was eventually scheduled for trial. The Brooklyn DA's office then failed to be ready for trial on four different occasions in Court leading to the dismissal, this week. Contact Tilem & Campbell for more information or for a free consultation on any criminal case.

New York Criminal Defense firm, Tilem & Campbell scored a complete dismissal on all charges in a hard fought Endangering the Welfare of a Child case in Brooklyn, earlier today. The case involved a former school bus matron who was charged with standing by and taunting a young autistic boy as he banged his head on a school bus window. The case received national attention and spurned two changes in New York State law. The case was dismissed because the Kings County District Attorney's Office violated the bus matron's New York State speedy trial rights.

The case against the bus matron was brought in Brooklyn Criminal Court in April 2006 and was based upon an incident on a school bus that was alleged to have occurred in September 2005. The case was struck a fatal blow in July of 2006 when Kings County Criminal Court Judge Ruth Smith ruled that an audiotape that was secretly placed in the boys backpack and which recorded the events on the bus amounted to an illegal wiretap under New York law and suppressed the use of the recording. After the Kings County District Attorney's Office said they could not prove the case without the recording the District Attorney's Office appealed Judge Smith's ruling.

A panel of the Appellate Term of Supreme Court overturned Judge Smith's ruling in January 2008 and Tilem & Campbell appealed to the New York Court of Appeals, New York State's highest court. After the Court of Appeals refused to hear the case, the case was returned to Brooklyn Criminal Court and after some additional motion practice was set down for trial.

The District Attorney's Office filed a Statement of Readiness for trial in May of 2008 but then inexplicably served the defendant's copy of the Statement of Readiness on a former address that Tilem & Campbell had moved from more than a year before. According to a statement filed by the District Attorney's Office, once the Statement of Readiness for trial came back undeliverable, the District Attorney's took no further action to serve it on Tilem & Campbell. Notably, the District Attorney's Office admitted in its court filings that it had been notified of the change of address and had sent at least one letter to the new address.

In addition, the Court scheduled trial dates in November 2008, February 2009, April 2009 and May 2008. On each date, the Kings County District Attorney's Office told the Court they were not ready for trial and requested another date.

Kings County Criminal Court Judge Gilbert Hong ruled earlier today that the Statement of Readiness for Trial was ineffective since it was never served on the defense attorneys, Peter Tilem and John Campbell. The net effect of that ruling, combined with the fact that the District Attorney was not ready for trial on four dates spanning a seven month period was that the District Attorney's office was ready for trial for the first time in July 2009, approximately 3 and 1/2 years after the bus matron's initial appearance and arraignment of these charges.

New York Law, as well as the New York State and United States Constitution require that individuals accused of a crime be given a speedy trial and a public trial. The New York State Law requires that when a person is accused of the class "A" misdemeanor of Endangering the Welfare of a Child the District Attorney's Office must be ready for trial within 90 days. New York State Law excludes many periods of time from those 90 days including motion practice and appeals.

Judge Hong ruled that the District Attorney's Office used more than 200 days before they were ready for trial in this case and dismissed all charges against the bus matron.

In addition to the mandatory reporters I previously discussed, the New York Social Services Law specifically authorizes “any person” to make a report of suspected abuse or maltreatment when they have reasonable cause to believe a child is the victim of abuse or maltreatment. (Soc. Ser. Law § 414). While seemingly supported by good intentions, the ability of anyone to make a purely anonymous report of abuse or maltreatment poses a tremendous problem because New York treats any complaint, whether from a known source or a purely anonymous caller, the same. Each triggers what can probably be described as the most intrusive, humiliating, frightening and, far too often, constitutionally improper investigation into the inner, most private workings of a family. And to repeat, this can all be triggered by a purely anonymous “tip”.

It is because New York treats anonymous reports the same as reports from known mandatory reporters; the nosey neighbor, the angry neighbor, the spurned ex-lover, the “do-gooder”, the disgruntled parent, grandparent, uncle, aunt or any variety of wackos can throw one’s life into turmoil with a simple anonymous report to an abuse hotline. There have been cases where families have gone through entire investigations and hearings because a passing motorist saw a child “unattended” in the driveway of a home. Imagine you are watching your child from the porch, just 10 feet away, and because some passing motorist sees only your child, you become the subject of an abuse or neglect investigation.

If the allegations contained in the report, whether anonymous or from a know source, “could reasonably constitute a report of child abuse or maltreatment”, or “if true would constitute child abuse or maltreatment”, the report must be transmitted to the appropriate local child protective agency for investigation (Social Services Law § 422[2][a], [b] ). Therefore, as long as the false report made by an anonymous ex-boyfriend, disgruntled ex-spouse, nosey neighbor or whomever, makes out a plausible claim of abuse or maltreatment, you will be investigated. I have personally handled cases where a single parent has been the subject of repeated false anonymous reports all of which resulted in an investigation.

If you have been notified that you are the subject of a child abuse, neglect or maltreatment investigation by a child protective services agency or by the police, you have rights and you must know them. Contact Tilem & Campbell toll free at 1-877-377-8666 for a free consultation or visit www.tilemandcampbell.com.

In an effort to identify those children who might be the victim of abuse or neglect in New York, certain individuals who are in a position to observe signs of abuse and/or neglect are required by law to make a report when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is abused or maltreated. These individuals are referred to as “mandatory reporters”. (See Soc Ser. Law § 413).

Almost all reports of abuse or maltreatment are made by “mandatory reporters”. The list of mandatory reporters is quite long and includes physicians, dentists, nurses, social workers, school officials, substance abuse counselors, police officers, and assistant district attorneys. When one of these mandatory reporters has reasonable cause to believe your child has been abused or maltreated, they are required by law to report such suspected abuse or maltreatment in accordance with Soc. Ser. Law § 413(1)(b) & (c).

Employers of mandatory reporters must provide new hires with written information explaining their mandatory reporting requirements. (See Soc Ser. Law § 413(2)). Any state or local agency that licenses or issues certificates to day care facilities shall provide the licensee with written information regarding mandatory reporting requirements. (See Soc Ser. Law § 413(3)). Finally, any agency, employer or other organization that employs mandatory reporters who travel, in the normal course of their duties, to where children reside must provide those mandatory reporters with information or how to recognize an unlawful methamphetamine laboratory. (See Soc Ser. Law § 413(4)). As a result of mandatory reporting laws, most reports of child abuse, neglect and/or maltreatment are made by school employees or doctors who observe signs of abuse, neglect and/or maltreatment.

If you are the subject of a Child Protective Services, Administration for Children’s Services or a police investigation, contact Tilem & Campbell toll free at 1-877-377-8666 or visit www.tilemandcampbell.com for more information. You do have rights and you should know them.

As I have explained in my previous blog, the common law, the Penal Law and the Family Court Act all, in theory, allow a parent to inflict reasonable corporal punishment. This does not mean, however, that a parent may freely beat his or her child. To the contrary, “a parent may use some physical force in disciplining their children, but it has to be reasonable and in no way gives them permission to cruelly beat their children.” People v. Prue, 219 A.D.2d 873 (4th Dept. 1995). Similarly, in Matter of Rodney C., 91 Misc. 2d 677 (1977), the Family Court of Onondaga County held that parents do not have an unlimited license to use physical force against their children.

In Monroe v. Blum, 90 A.D.2d 572 (3rd Dept.1982) the Appellate Division, Third Department held that marks on a 16 year-old child's lower back and buttocks, caused by the father striking the child with a plastic cord and belt, in addition to the fact that the father threw milk on the child, amounted to substantial evidence of excessive corporeal punishment.

In Matter of Jonathan C., 195 A.D.2d 554, 600 N.Y.S.2d 480 (2nd Dept.1993), the Appellate Division, Second Department upheld a finding that a mother had neglected her child where she admittedly struck her five-year-old son, causing him to lose consciousness. The Court concluded that the child's physical condition was impaired by the unreasonable infliction of excessive corporal punishment and upheld the placement of the child with the Commissioner of Social Services for a period of nine months.

As shown by the above cases, a parent would be ill advised to dispense unreasonable, unnecessary and excessive corporal punishment thinking they can rely on their common law and statutory right to inflict corporal punishment. Further, what many parents don’t realize is their right to utilize reasonable corporal punishment is in reality a defense under New York law. That means that the parent doesn’t avoid the prosecution for assault on their child or the finding of abuse or neglect by simply telling investigators they were simply disciplining their child. That’s not how it works at all. In reality, the slightest indication of corporal punishment will result in a Child Protective Services investigation and possible police investigation. The parent can really only utilize the “corporal punishment defense” after they have been indicated as an abuser or neglecter or charged with some type of criminal assault against their child. And while the parent might win in the end, it will take months if not years to do so and during that time, orders of protection will be issued, the parent and/or child might be ordered to counseling and the parent might be excluded from the home. So the question becomes, does a parent’s common law and statutory right to inflict reasonable corporal punishment amount to anything more than hollow, worthless words?

For more information about child abuse and neglect cases including any criminal charges resulting from the alleged abuse or neglect of a child, contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

While virtually all investigators with Child Protective Services, members of law enforcement, prosecutors and even judges have chosen to totally disregard a parent’s right to use reasonable corporal punishment, New York law permits parents to use reasonable corporal punishment to maintain discipline. Indeed, Penal Law 35.10(1) states in substance that a parent may use “physical force ... when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of [the child]”. Furthermore, the Family Court Act only prohibits the infliction of “excessive corporal punishment” (Family Court Act § 1012(f)(i)(B)). Therefore, corporal punishment that is not excessive does not run afoul of the Family Court Act. What this means is that a parent who uses reasonable corporal punishment in New York should not find themselves criminally charged with Assault or the subject of a child abuse investigation.

Perhaps New York Child Protective Services, the New York City Administration for Children’s Services, members of law enforcement, doctors, nurses, school teachers and those nosey neighbors next door should be reminded that “[i]t is important that we not lose sight of a parent's common-law privilege to use reasonable physical force to discipline his or her children.” In re Peter G., 6 A.D.3d 201, 206, 774 N.Y.S.2d 686, 689 (1st Dept. 2004).

However, parents would be ill advised to believe they can actually inflict reasonable corporal punishment. Despite the fact that the Family Court Act only prohibits excessive corporal punishment, and despite the fact that a parent’s right to utilize reasonable corporal punishment is as old as mankind, and despite the fact that the Penal Law allows a parent to use physical force to maintain discipline or to promote the welfare of their child, almost any allegation of corporal punishment brought to the attention of your child’s teacher, doctor, other mandatory reporters or just your nosey neighbor will undoubtedly result in an investigation by Child Protective Services and maybe even the police.

The reality is, the Department of Social Services, Child Protective Services, the Administration for Children’s Services, social workers, pediatricians, law enforcement, school administrators and others have simply chosen ignore a parent’s right to inflict reasonable corporal punishment. Unfortunately, a parent’s right to utilize reasonable corporal punishment had devolved into nothing more than meaningless words. Very rarely will a courageous judge find that the parent was inflicting permissible corporal punishment thereby exonerating that parent. But even in such a situation, that parent will have already gone through a year or more of a living hell tangled up in the Family Court and/or Criminal Court before he or she was exonerated.

If you have any questions regarding child abuse and neglect or if you are the subject of a child abuse or neglect investigation, contact Tilem & Campbell toll free at 1-877-377-8666 for a free consultation or visit us on the web at www.tilemandcampbell.com. You do have rights and you should know them.

As previously discussed, New York Child abuse cases that allege that a child was "abuse" as opposed to neglected may be difficult to prove since abuse requires proof of the infliction of a physical injury caused by other than accidental means that causes a substantial risk of death or other or serious or protracted disfigurement, or a protracted impairment of the child’s physical or emotional health or the protracted loss or impairment of the function of any bodily organ. 18 NYCRR § 432.1(a)(1); Fam Ct. Act § 1012(e)(i).

Clearly, to meet the definition of an abused child due to the infliction of a physical injury, the physical injury must be fairly serious. Indeed, it must cause a substantial risk of death or other serious and/or protracted injuries. Therefore, excessive corporal punishment that does not cause a substantial risk of death or the other serious and protracted conditions listed in the definition of “abused child” found in 18 NYCRR § 432.1(a)(1) and Fam Ct. Act § 1012(e)(i) but did otherwise constitute excessive corporal punishment would most likely be deemed a form of neglect as defined in Fam. Ct. Act § 1012(f)(i)(B) or maltreatment as defined in 18 NYCRR § 432.1(b)(1)(ii).

For example, in the Matter of Rodney C., 91 Misc.2d 677, 682, 398 N.Y.S.2d 511, 516 (Fam.Ct., Onondaga Co., 1977), the Court ruled on three separate cases of alleged abuse. In evaluating the first case, the Court held that 26 marks on the back of a seven year old boy still visible three days after his mother beat him were not so excessive as to be life-threatening or likely to cause permanent disfigurement and therefore the child was not an abused child but was instead a neglected child.

In the second case, the Court ruled that punishment which required an 11 year old boy to hold his ankles and keep his knees straight for variable lengths of time causing him to scream, constituted excessive use of corporal punishment that did not rise to the level of abuse but instead constituted neglect. Id. In the final case, the Court ruled that punishing a ten-year-old boy by forcing him to stand in a contorted position causing him to scream and to vomit, did not rise to the level of abuse but did result in a finding of neglect. Id.

If you are the subject of a New York State Child Protective Services investigation or a police investigation involving allegations of child abuse or neglect, call Tilem & Campbell toll free at 1-877-377-8666 to schedule a free consultation.

Understanding the legal definition of relevant terms associated with New York child abuse or neglect allegations is imperative when you are the subject of a report alleging child abuse, maltreatment and/or neglect. These definitions are set forth in the Social Services Law, the Family Court Act and the Mental Hygiene Law as well as the Regulations of the Department of Social Services.

For purposes of an investigation by a Child Protective Services agency, there are several ways a child can be deemed abused. Here, I will discuss what is probably the most commonly alleged abuse; the infliction of a physical injury. An abused child is a child less than 18 years of age whose parent or other person who is legally responsible for his care inflicts or allows to be inflicted upon that child a physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ. 18 NYCRR § 432.1(a)(1); Fam Ct. Act § 1012(e)(i). Note, that the definition is similar but not identical to the definition of physical injury found in the New York Penal Law and pertains to assault charges.

Therefore, to meet this “physical injury” definition of “abused child”, the child must be less than 18 years of age, the abuse must be inflicted by the parent or other person legally responsible for the child; the child must suffer a physical injury not caused by an accident and that physical injury must cause or create a substantial risk of death, or serious or protracted disfigurement, or a protracted impairment of the child’s physical or emotional health or the protracted loss or impairment of the function of any bodily organ. In other words, based upon this definition, the physical injury must be fairly serious. In future blogs, I will review cases where abuse by physical injury was alleged.

If you have been contacted by Child Protective Services or the police regarding an allegation that you abused or neglected your child, contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

While not technically criminal in nature, New York Child Protective Service investigations often accompany criminal charges for Assault and/or Endangering the Welfare of a Child. In addition, these child abuse and neglect investigations can lead to New York Family Court actions. Did you know that just the slightest mark, scratch, bump or bruise on your child can trigger a most intrusive, terrifying and humiliating investigation of your parenting ability. This article will give you a very general introduction into the intended purpose of Child Protective Services in New York State.

The New York State Legislature has determined that maltreated children within the State are in urgent need of child protective services. The Legislature therefore developed laws to encourage, and even require, the reporting of suspected child abuse and maltreatment. Each county has a child protective service charged with “swiftly” investigating reports of abuse and/or maltreatment. Such investigations are supposed to be swift and competent and capable of preventing further harm to the child. Rehabilitative services are to be provided for the child as well as the parents involved. [See NY Social Services Law sec. 411]

In theory the purpose of child protective services sounds wonderful. In reality, these agencies routinely and needlessly invade the lives of decent families, accuse decent parents of baseless charges of abuse and/or neglect, impose their own beliefs as to what is proper parenting and operate with a total disregard of the constitutional rights of the parents and children. The American Family Rights Association maintains a website replete with horror stories involving CPS throughout the country. The America Family Rights Association website also lists Tilem & Campbell as one of "AFRA's Lawyer Friends" because of our work in this legal area.

If Child Protective Services contacts you, you should speak with an experienced and knowledgeable attorney. You have rights. Learn your rights from an attorney that cares about you. These so-called “investigators” sent by Child Protective Services will many times trample your rights, lie to you and threaten you. Know your rights; protect your family. For more information call the law-firm of Tilem & Campbell toll free at 1-877-377-8666.