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.

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