Big Changes in Child Protection Policies?

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

The case arose initially when the children of plaintiffs Sharwline Nicholson, Sharlene Tillett and Ekaete Udoh were permanently or temporarily removed from their custody by New York City's Administration for Children's Services (ACS), at least in part because the custodial mothers had been assaulted by other individuals and had failed to prevent their child or children from being exposed to that incident of violence. The suits were brought separately and consolidated into a class action with two classes: subclass A, the battered custodial parents and subclass B, the children removed from their care. The defendants are Nicholas Scoppetta, the ACS commissioner, Gov. George Pataki and a number of other city and state officials. (The class was limited to cases in which the children themselves were not battered, threatened or neglected by the non-battering custodian and where protection of the children's best interests could arguably be accomplished by separating the alleged batterer from the custodian and children or by some other measure short of separation from the non-battering custodian.)

In June 2001, the plaintiffs moved for a preliminary injunction, prompting a 24-day hearing on the issue over the course of 5 months. The hearing involved the testimony of dozens of witnesses, including the parents, ACS representatives and child-welfare advocates with regular interaction with ACS. At its conclusion, the court found that it was likely to find constitutional violations of both subclasses' rights in ACS's methods. See In Re Nicholson, 2001 WL 1338834 (E.D.N.Y. Oct. 25, 2001).

The main determinant in the District Court's decision was that in many removals by ACS, the only substantiated basis for a finding of neglect was that the custodial mother allowed the child to witness her own abuse by another adult. In many cases, the District Court found, the removal was perhaps unnecessary to prevent the child from witnessing further abuse, but ACS focused on the mothers and neglected to attempt to work with or remove the abusers. These were not isolated cases, the court noted, but a widespread practice. Specifically, it found, among other things, that battered custodians were charged with neglect by reason of a child witnessing their own battering in approximately 234 cases each year. Looking at the year 1999, the court found that about 80 children (and by some counts, twice that many) were removed from the battered custodian although no additional basis for neglect was cited. Even though many of the removals were only temporary, pending hearing on the matters involved, the District Court noted that such hearings could often last or be delayed for months, exacerbating the harms that children experience as a result of removal.

The District Court determined that top personnel at ACS knew of the practices alleged but made little effort to change them; therefore, in accordance with 42 U.S.C ' 1983, ACS could be held liable for harm done due to its “official policy or custom.” The court then went on to consider the plaintiffs' constitutional claims. Noting that both parents and children have a procedural due process liberty interest in maintaining the family relationship, the court held that a governmental entity must prove that a parent is unfit, not simply presume it. It also identified possible substantive due process violations in ACS's practices, and violations against the children's rights under the Fourth Amendment to be free from unreasonable seizures. Based on these findings, the court issued a preliminary injunction against defendants carrying out ex parte removals solely because the mother is the victim of domestic violence. This appeal followed.

Court of Appeals Has Questions

The Second Circuit agreed that in some circumstances the removals might raise questions of federal constitutional law, but declined to reach the constitutional questions, finding that some state law questions needed to be answered first. “Given our strong preference for avoiding unnecessary constitutional adjudication, as well as the importance of child safety to the State of New York, and the integral role New York's own courts play in the removal process, we choose to certify these state-law questions to the New York Court of Appeals,” the court stated.

Questions Certified for Clarification

What questions did the court certify for clarification? First, the Family Court Act defines a “neglected child” as one “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent … to exercise a minimum degree of care.” N.Y. Fam. Ct. Act ' 1012(f)(i). The Second Circuit felt that a “fundamental question to be answered before any constitutional question should be reached was what conduct satisfies the broad, tort-like phrase, 'a minimum degree of care.'”

The court noted that, to date, several of New York's lower courts, and even its appellate division, have made rulings indicating that removal is appropriate even if the only evidence of neglect is that the battered parent allowed the child to witness the assault or assaults. Still, the court refused to accept this case law as dispositive of the state's interpretation of the law. “The [New York] Court of Appeals has not yet addressed that question, which would be critical to defining appropriate parental behavior,” the majority wrote.

A second and third question were also referred to the New York Court of Appeals: a) Can the injury or possible injury, if any, that results to a child who had witnessed domestic abuse against a parent or other caretaker constitute “danger” or “risk” to the child's “life or health,” as those terms are defined in the N.Y. Family Ct. Act '' 1022, 1024,1026-1028; and, b) Does the fact that the child witnessed such abuse suffice to demonstrate that “removal is necessary,” (N.Y. Family Ct. Act '' 1022, 1024, 1027), or that “removal was in the child's best interests,” (N.Y. Family Ct. Act '' 1028, 1052(b)(i)(A), even if the child protective agency offers no additional, particularized evidence to justify removal?

These questions, if answered in the affirmative, would probably not render the actions of ACS employees in removing children from these homes unconstitutional, the Second Circuit opined.

Procedural Due Process

For instance, on the issue of procedural due process with respect to ex parte removals in plaintiffs' cases, the court looked to Second Circuit precedent to find that New York's definition of what is appropriate in such situations could affect the constitutionality of the social workers' actions.

In the Second Circuit's 1999 decision in Tenenbaum v. Williams, the court stated, “As a general rule … before parents may be deprived of the care, custody, or management of their children without their consent, due process — ordinarily a court proceeding resulting in an order permitting removal — must be accorded them.” Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir., 1999). An exception to this rule, of course, is when the child appears to be in imminent danger. In Tenenbaum, the Second Circuit defined such “danger” as being present “where the state officers making the search or seizure have reason to believe that life or limb is in immediate jeopardy.” Still, the court in the present case questioned its own apparently narrow definition of “danger” as enunciated in Tenenbaum, noting that in earlier decisions such as Hurlman v. Rice, 927 F.2d 74 (2d Cir. 1991), the Second Circuit had found threat of imminent sexual abuse to constitute a danger worthy of a child's ex-parte removal from the home. Therefore, despite the definition of “danger” the court itself gave in Tenenbaum, it was willing to consider here that if the state of New York, after careful deliberation, had determined that witnessing violence against a parent, even for a short time, put that child in danger, it might accept as constitutional removal of that child without judicial order. “In short, then, we think there is a strong possibility that if New York law does not authorize ex parte removals, our opinion in Tenenbaum at least arguably could weigh in favor of finding procedural due process violation in certain circumstances. If New York does authorize such removals, Tenenbaum likely does not prohibit us from deferring to that judgment,” the court stated.

The Second Circuit appeared more willing to find ACS in violation of the Fourth Amendment protection against unreasonable seizures, even if the State of New York authorizes ex-parte seizure of a child, when the only “neglect” charge is that the child witnessed the custodial parent being beaten or otherwise abused. Pointing to a Ninth Circuit decision, Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000), which held that “[o]fficials may remove a child from the custody of its parent without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury,” the Second Circuit here questioned whether it, too, would be satisfied only with imminent threat of physical harm to overcome a Fourth Amendment challenge to seizure of a child. But the Second Circuit declined to address the issue at this juncture head-on, stating that if “New York law does not authorize ex parte removals based on the danger that a child will witness domestic violence, we would not need to reach that question. That is, if the Court of Appeals were to hold that removals based only on exposing a child to domestic violence are unlawful, then presumably ACS would not have probable cause to remove in such circumstances.”

The court's decision addressed the constitutional questions separately for ex-parte versus judicial removal situations, but in both cases found that ultimate determination of each constitutional question might be avoided by the New York Court of Appeals' interpretation of New York law. Accordingly, the Second Circuit took no further action pending receipt of answers to their three questions from the New York Court of Appeals.

The Dissent

The sole dissenter, Chief Judge John M. Walker, Jr., disagreed with the majority's decision to certify any question to the New York Court of Appeals, as he found nothing amiss in ACS's policies or in the way they were carried out.

Justice Walker noted that 17 months before the District Court issued its injunction, ACS had promulgated and put into operation revised “Principles For Addressing Domestic Violence in Children's Services.” Under these principles, ACS's written policy allows removal of children only when “domestic violence creates an immediate danger of serious physical harm or serious emotional impairment to a child” when “safety planning with the non-abusive parent and/or criminal justice intervention does not reasonably provide for children's safety.” Another stated policy is that when “domestic violence creates an immediate danger of serious physical harm or serious emotional impairment to a child, every effort should be made to provide for safety without separating the non-abusive parent and child.” The dissent disagreed that ACS's practice in the field contradicted this policy in any but a few isolated cases. And Justice Walker questioned the majority's discounting of these stated policies in favor of finding that ACS's real policy was that announced in its general mission statement, which calls on caseworkers to resolve any “ambiguity regarding the safety of the child … in favor of removing the child from harm's way.” Judge Walker wrote, “There is no ACS policy — formal, informal or sub rosa — to take children from their parents solely because the parent has been a victim of domestic violence. The most that can be said of the four instances presented at trial is that when such conduct occurs, it arises from a 'specific act of a governmental officer' making a decision in a particular case. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Thus, to the extent that the injunction was based on the district court's factual finding that ACS removes children solely because the child has been exposed to domestic violence, it cannot stand.”

Conclusion

What will the Court of Appeals do with the Second Circuit's certified questions, and what will the Second Circuit in turn do with the answers? Experts disagree on which conclusion will better protect children from emotional harm; removing them from a volatile situation, or taking from arguably their best coping mechanisms during times of stress – mother and a familiar home. The outcome of this case could change the way social workers respond when children are caught up as bystanders in domestic violence situations. In the meantime, until a decision is rendered, the preliminary injunction against the defendants stands.

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

The case arose initially when the children of plaintiffs Sharwline Nicholson, Sharlene Tillett and Ekaete Udoh were permanently or temporarily removed from their custody by New York City's Administration for Children's Services (ACS), at least in part because the custodial mothers had been assaulted by other individuals and had failed to prevent their child or children from being exposed to that incident of violence. The suits were brought separately and consolidated into a class action with two classes: subclass A, the battered custodial parents and subclass B, the children removed from their care. The defendants are Nicholas Scoppetta, the ACS commissioner, Gov. George Pataki and a number of other city and state officials. (The class was limited to cases in which the children themselves were not battered, threatened or neglected by the non-battering custodian and where protection of the children's best interests could arguably be accomplished by separating the alleged batterer from the custodian and children or by some other measure short of separation from the non-battering custodian.)

In June 2001, the plaintiffs moved for a preliminary injunction, prompting a 24-day hearing on the issue over the course of 5 months. The hearing involved the testimony of dozens of witnesses, including the parents, ACS representatives and child-welfare advocates with regular interaction with ACS. At its conclusion, the court found that it was likely to find constitutional violations of both subclasses' rights in ACS's methods. See In Re Nicholson, 2001 WL 1338834 (E.D.N.Y. Oct. 25, 2001).

The main determinant in the District Court's decision was that in many removals by ACS, the only substantiated basis for a finding of neglect was that the custodial mother allowed the child to witness her own abuse by another adult. In many cases, the District Court found, the removal was perhaps unnecessary to prevent the child from witnessing further abuse, but ACS focused on the mothers and neglected to attempt to work with or remove the abusers. These were not isolated cases, the court noted, but a widespread practice. Specifically, it found, among other things, that battered custodians were charged with neglect by reason of a child witnessing their own battering in approximately 234 cases each year. Looking at the year 1999, the court found that about 80 children (and by some counts, twice that many) were removed from the battered custodian although no additional basis for neglect was cited. Even though many of the removals were only temporary, pending hearing on the matters involved, the District Court noted that such hearings could often last or be delayed for months, exacerbating the harms that children experience as a result of removal.

The District Court determined that top personnel at ACS knew of the practices alleged but made little effort to change them; therefore, in accordance with 42 U.S.C ' 1983, ACS could be held liable for harm done due to its “official policy or custom.” The court then went on to consider the plaintiffs' constitutional claims. Noting that both parents and children have a procedural due process liberty interest in maintaining the family relationship, the court held that a governmental entity must prove that a parent is unfit, not simply presume it. It also identified possible substantive due process violations in ACS's practices, and violations against the children's rights under the Fourth Amendment to be free from unreasonable seizures. Based on these findings, the court issued a preliminary injunction against defendants carrying out ex parte removals solely because the mother is the victim of domestic violence. This appeal followed.

Court of Appeals Has Questions

The Second Circuit agreed that in some circumstances the removals might raise questions of federal constitutional law, but declined to reach the constitutional questions, finding that some state law questions needed to be answered first. “Given our strong preference for avoiding unnecessary constitutional adjudication, as well as the importance of child safety to the State of New York, and the integral role New York's own courts play in the removal process, we choose to certify these state-law questions to the New York Court of Appeals,” the court stated.

Questions Certified for Clarification

What questions did the court certify for clarification? First, the Family Court Act defines a “neglected child” as one “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent … to exercise a minimum degree of care.” N.Y. Fam. Ct. Act ' 1012(f)(i). The Second Circuit felt that a “fundamental question to be answered before any constitutional question should be reached was what conduct satisfies the broad, tort-like phrase, 'a minimum degree of care.'”

The court noted that, to date, several of New York's lower courts, and even its appellate division, have made rulings indicating that removal is appropriate even if the only evidence of neglect is that the battered parent allowed the child to witness the assault or assaults. Still, the court refused to accept this case law as dispositive of the state's interpretation of the law. “The [New York] Court of Appeals has not yet addressed that question, which would be critical to defining appropriate parental behavior,” the majority wrote.

A second and third question were also referred to the New York Court of Appeals: a) Can the injury or possible injury, if any, that results to a child who had witnessed domestic abuse against a parent or other caretaker constitute “danger” or “risk” to the child's “life or health,” as those terms are defined in the N.Y. Family Ct. Act '' 1022, 1024,1026-1028; and, b) Does the fact that the child witnessed such abuse suffice to demonstrate that “removal is necessary,” (N.Y. Family Ct. Act '' 1022, 1024, 1027), or that “removal was in the child's best interests,” (N.Y. Family Ct. Act '' 1028, 1052(b)(i)(A), even if the child protective agency offers no additional, particularized evidence to justify removal?

These questions, if answered in the affirmative, would probably not render the actions of ACS employees in removing children from these homes unconstitutional, the Second Circuit opined.

Procedural Due Process

For instance, on the issue of procedural due process with respect to ex parte removals in plaintiffs' cases, the court looked to Second Circuit precedent to find that New York's definition of what is appropriate in such situations could affect the constitutionality of the social workers' actions.

In the Second Circuit's 1999 decision in Tenenbaum v. Williams , the court stated, “As a general rule … before parents may be deprived of the care, custody, or management of their children without their consent, due process — ordinarily a court proceeding resulting in an order permitting removal — must be accorded them.” Tenenbaum v. Williams , 193 F.3d 581, 593 (2d Cir., 1999). An exception to this rule, of course, is when the child appears to be in imminent danger. In Tenenbaum , the Second Circuit defined such “danger” as being present “where the state officers making the search or seizure have reason to believe that life or limb is in immediate jeopardy.” Still, the court in the present case questioned its own apparently narrow definition of “danger” as enunciated in Tenenbaum , noting that in earlier decisions such as Hurlman v. Rice , 927 F.2d 74 (2d Cir. 1991), the Second Circuit had found threat of imminent sexual abuse to constitute a danger worthy of a child's ex-parte removal from the home. Therefore, despite the definition of “danger” the court itself gave in Tenenbaum, it was willing to consider here that if the state of New York, after careful deliberation, had determined that witnessing violence against a parent, even for a short time, put that child in danger, it might accept as constitutional removal of that child without judicial order. “In short, then, we think there is a strong possibility that if New York law does not authorize ex parte removals, our opinion in Tenenbaum at least arguably could weigh in favor of finding procedural due process violation in certain circumstances. If New York does authorize such removals, Tenenbaum likely does not prohibit us from deferring to that judgment,” the court stated.

The Second Circuit appeared more willing to find ACS in violation of the Fourth Amendment protection against unreasonable seizures, even if the State of New York authorizes ex-parte seizure of a child, when the only “neglect” charge is that the child witnessed the custodial parent being beaten or otherwise abused. Pointing to a Ninth Circuit decision, Wallis v. Spencer , 202 F.3d 1126 (9th Cir. 2000), which held that “[o]fficials may remove a child from the custody of its parent without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury,” the Second Circuit here questioned whether it, too, would be satisfied only with imminent threat of physical harm to overcome a Fourth Amendment challenge to seizure of a child. But the Second Circuit declined to address the issue at this juncture head-on, stating that if “New York law does not authorize ex parte removals based on the danger that a child will witness domestic violence, we would not need to reach that question. That is, if the Court of Appeals were to hold that removals based only on exposing a child to domestic violence are unlawful, then presumably ACS would not have probable cause to remove in such circumstances.”

The court's decision addressed the constitutional questions separately for ex-parte versus judicial removal situations, but in both cases found that ultimate determination of each constitutional question might be avoided by the New York Court of Appeals' interpretation of New York law. Accordingly, the Second Circuit took no further action pending receipt of answers to their three questions from the New York Court of Appeals.

The Dissent

The sole dissenter, Chief Judge John M. Walker, Jr., disagreed with the majority's decision to certify any question to the New York Court of Appeals, as he found nothing amiss in ACS's policies or in the way they were carried out.

Justice Walker noted that 17 months before the District Court issued its injunction, ACS had promulgated and put into operation revised “Principles For Addressing Domestic Violence in Children's Services.” Under these principles, ACS's written policy allows removal of children only when “domestic violence creates an immediate danger of serious physical harm or serious emotional impairment to a child” when “safety planning with the non-abusive parent and/or criminal justice intervention does not reasonably provide for children's safety.” Another stated policy is that when “domestic violence creates an immediate danger of serious physical harm or serious emotional impairment to a child, every effort should be made to provide for safety without separating the non-abusive parent and child.” The dissent disagreed that ACS's practice in the field contradicted this policy in any but a few isolated cases. And Justice Walker questioned the majority's discounting of these stated policies in favor of finding that ACS's real policy was that announced in its general mission statement, which calls on caseworkers to resolve any “ambiguity regarding the safety of the child … in favor of removing the child from harm's way.” Judge Walker wrote, “There is no ACS policy — formal, informal or sub rosa — to take children from their parents solely because the parent has been a victim of domestic violence. The most that can be said of the four instances presented at trial is that when such conduct occurs, it arises from a 'specific act of a governmental officer' making a decision in a particular case. County of Sacramento v. Lewis , 523 U.S. 833, 846 (1998). Thus, to the extent that the injunction was based on the district court's factual finding that ACS removes children solely because the child has been exposed to domestic violence, it cannot stand.”

Conclusion

What will the Court of Appeals do with the Second Circuit's certified questions, and what will the Second Circuit in turn do with the answers? Experts disagree on which conclusion will better protect children from emotional harm; removing them from a volatile situation, or taking from arguably their best coping mechanisms during times of stress – mother and a familiar home. The outcome of this case could change the way social workers respond when children are caught up as bystanders in domestic violence situations. In the meantime, until a decision is rendered, the preliminary injunction against the defendants stands.