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Articles Posted in CHILD ABUSE

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New York Criminal Defense Attorneys Tilem & Associates in a high profile case in Westchester County successfully negotiated a plea deal for a client charged with criminally negligent homicide in the death of a 6 year old and helped the client avoid a jail sentence.

Homicide. Murder. Negligent homicide. Manslaughter. In the wake of the loss of a life, one may wonder, exactly what the difference in the terms mean? While the words can be confusing, there is an important difference between each charge. Homicide means conduct which causes the death of a person. The difference between murder, negligent homicide and manslaughter all depend on the culpable mental state alleged to be involved with the death of another. In another words did the person intentionally cause the death of someone or did they do so recklessly or with criminal negligence.

The statute, N.Y. Pen. Law § 125.10, spells out criminally negligent homicide in New York. Criminally negligent homicide represents the least serious of all homicide offenses in New York and in fact is the lowest level felony in the New York Penal law. The charge of criminal negligence means that person has failed to perceive a substantial and unjustifiable risk that a particular result will occur or that a particular circumstance exists. The risk is usually of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. This charge is used when the accused lacked the intention of killing the victim, but should have known better than to complete acts which resulted in the victim’s death.

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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.

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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.

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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 Peter Tilem handled all pre-trial litigation, and Associate Jean Melino successfully handled motion practice which directly resulted in the preclusion of key prosecution evidence.

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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.

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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.

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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.

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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.

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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.

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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.