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Big Changes in Child Protection Policies?

By Janice G. Inman
November 01, 2003

On September 23rd, the U.S. Court of Appeals for the Second Circuit certified to the New York Court of Appeals three questions for clarification whose answer could become of major importance to New York child-welfare professionals and the families they work with. The responses to these questions and the ultimate decision in this case could have a significant impact on the way in which children can be removed from homes where one adult has domestically abused another.

In this interlocutory appeal in the case of Nicholson v. Scoppetta, N.Y.L.J. 9/23/03, DOI Pg. 26, the City of New York and its chief child-welfare administrator challenged the determination of the U.S. District Court for the Eastern District of New York (Weinstein, J.) that the manner in which they have chosen to carry out the task of protecting children against those who would harm them, intentionally or not, violates the U.S. Constitution. The District Court had found below that the city was at least inattentive to the custom or practice of its officers in removing children from the custody of a parent who had been battered by a spouse or paramour, based on the theory that the battered parent's failure to protect the child from witnessing the abuse was itself a form of child neglect. This practice, the District Court concluded, contravened protected substantive due process and procedural due process liberty interests of parents and children in staying together as a family. That court also held that the removals were unreasonable seizures, contrary to the safeguards of the Fourth Amendment.

The Case in Question

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