No Removal of Children Who Witness Abuse

New York's highest court, the Court of Appeals, recently issued a ground-breaking opinion, holding that a battered woman's failure to prevent her children from witnessing her own abuse does not automatically give protective agencies license to remove the child. Nicholson v. Scoppetta, 113, Oct. 26, 2004.

Three Key Questions

In response to three questions posed by a federal appellate panel, the court recognized that removing a child from home can be every bit as detrimental as allowing one to remain in a less-than-ideal environment. It said that domestic violence can indeed result in a child's removal, but only after thorough examination and specific evidence of physical or emotional danger.

The decision appears to impose new burdens on both child welfare administrators and Family Court judges. It rejects a one-size-fits-all approach to the problem of domestic violence vis-'-vis its impact on children, requiring the assessment of individual cases.

The case began in the Eastern District federal court, where Judge Jack B. Weinstein enjoined the City of New York from removing children merely because they were witness to the abuse of their mothers. Weinstein held that removing children who witness abuse, without proof of physical or psychological harm, violates the constitutional safeguard against unreasonable searches and the right to due process.

His ruling resulted in an interlocutory appeal to the 2nd U.S. Circuit Court of Appeals, which certified three questions to New York's highest court:

1. Does the definition of a “neglected child” in the Family Court Act include “instances in which the sole allegation of neglect is that the parent” or guardian “allows the child to witness domestic abuse against the caretaker?”

Chief Judge Judith Kaye concluded that the question must be answered in the negative. The city or any agency claiming neglect on those grounds must show by a preponderance of the evidence that the child's physical, mental or emotional health has been compromised or is in imminent jeopardy, and that the actual or potential harm is attributable to a parent's failure to exercise a minimum degree of care.

The judge explained at length the type of circumstances that could warrant removal, eg, when children are repeatedly exposed to maternal abuse, and officials intervene on several occasions and caseworkers testify to the actual fear and distress suffered by the children.

The next question from the federal appeals court was:

2. Can the harm or potential harm suffered by a child who witnesses domestic abuse constitute a “danger” or “risk” to the child's life or health as defined in the act?

The court interpreted that as asking whether an emotional injury from witnessing domestic violence can ever warrant removal based on an “imminent danger” or “risk” to a child's health. Its answer: sometimes.

The final question was:

3. Is the fact that the child witnessed abuse sufficient to show that removal is necessary and in the best interests of the child, or “must the child protective agency offer additional, particularized evidence to justify removal?”

The court said particularized evidence was necessary to justify the determination, including, where appropriate, evidence of efforts made to prevent or eliminate the need for removal and the impact of removal on the child is required.

All sides claimed victory. Advocates for women and children called the decision a landmark in New York and possibly nationwide, describing it as a hands-down victory for the federal class action plaintiffs. The city, which according to the plaintiffs has already settled 20 of the damage actions for amounts generally ranging from $100,000 to $200,000 including costs, said the ruling vindicates its practices and policies.