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Articles Posted in CHILD ABUSE

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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.

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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 Peter Tilem 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.

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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.

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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.

Published on:

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.

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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.

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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.

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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.

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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.