Posted On: December 2, 2012 by Stephen Bilkis

Court Discusses Excessive Corporal Punishment

Respondent is the mother of the two subject children, the son, born April 30, 1994 and the daughter, born March 28, 2001. A New York Family Lawyer said Respondent also has an older daughter, currently a third year student at, visits the home on some weekends and during school vacations. A Bronx Order of Protection Lawyer said that, respondent was arrested and New York City Children's Services removed the two subject children (son and daughter) from her care pursuant to Family Court Act § 1024 prior to the filing of a petition. The NYCCS filed petitions against respondent in Kings County Family Court. The petitions allege that the mother neglected the child (now 16-year-old son), by inflicting excessive corporal punishment upon him. Specifically, the petitions allege that, NYPD responded to a 911 call made from a business near the case address after her son left the home because his mother beat him with a belt. The petitions further allege that the son reported that the beating took place after his mother learned that he had failed a number of classes. When he tried to get away, the mother allegedly grabbed him, tied him to the chair and hit him again. He also reported that his mother had used physical discipline in the past although this time was worse than other times. Finally, the petitions allege that the daughter is a derivatively neglected child by virtue of the neglect of respondent’s son.
A Bronx Order of Protection Lawyer said that, on the day the petitions were filed, the judge granted the request of NYCCS for a removal of the children and temporarily released them to their maternal aunt. The Judge entered a temporary order of protection against respondent on behalf of the children directing that she refrain from the use of corporal punishment. The Judge also ordered that the mother have liberal supervised visitation at the aunt's home.

A New York Custody Lawyer said two days after the incident, the mother enrolled in a number of programs offered by Family Dynamics. She immediately started a 16 week parenting support program and thereafter attended every Saturday. She never missed a session. She also started a 12 week anger management program which she attended every Saturday. She never missed a session. She started individual counseling and later found her son a therapist as well. She visited the children every day. She did their laundry, made them lunch and had two meals each day with them whenever possible. She checked their homework and was present for all of their doctors' appointments.

A Nassau Family Lawyer said that, the Judge granted the mother unsupervised visitation with both children on the consent of NYCCS and the Attorney for the Children. With the consent of all parties, the court changed the children's status from a temporary release to the maternal aunt to a restrictive remand with the children to reside with a family friend of six years. The maternal aunt had indicated that she was having difficulty transporting the children back and forth from her home in Manhattan to Brooklyn where they attended school and extra-curricular activities. The maternal aunt was a den mother for the son’s Boy Scout troop and lived close to the children's school in Brooklyn. She had a separate bedroom in her home for each of the children and agreed to transport them to and from school and their other activities. The case was transferred to this Part and, on the consent of NYCCS and the Attorney for the Children; the children were temporarily released to the mother under NYCCS supervision. The following month, she completed the parenting support and anger management programs.

The fact-finding hearing commenced and continued over the course of 28 months on numerous court dates. The court declined to continue the temporary order of protection that the Judge had entered against the mother prohibiting the use of corporal punishment. The Court had determined that an order of protection was no longer necessary to ensure the safety of the children. During the fact-finding hearing, a Bronx Family Lawyer said that respondent moved by notice of motion, to dismiss the petition pursuant to Family Court Act § 1051 (c).

A Nassau County Custody Lawyer said in support of the motion, respondent asserted that she had found the necessary services on her own, that she had completed them in 2008 and that she and her son continued attending therapy voluntarily. She further asserted that she had a warm and loving relationship with the children, that she had benefited from the services provided and that the issues leading to the underlying incident had been or were being addressed. The mother also emphasized that she had been the sole custodial parent for the children since they were born and that she was their only means of support. She asserted that she had provided for all of their needs, including health insurance, which had enabled her and Robert to attend and remain in therapy. She asserted that she had been informed by her union that she would probably lose her job if a finding of neglect were entered against her. She stated that if she lost her job it would have far-reaching consequences for the entire family. At a minimum, they would lose their only means of financial support and their health insurance. Finally, she asserted that the children had been home for an extended period of time without further incident and that the petition should, therefore, be dismissed since the aid of the court was no longer required.

The Attorney for the Children strongly supports respondent's motion, which is opposed by NYCCS. In the report and during summation, NYCCS reiterated the request for a finding of neglect as to respondent’s son and a derivative finding as to the daughter. In addition, NYCCS requested a dispositional order releasing the children to the mother with six additional months of supervision. As a condition of the release, NYCCS requested an order prohibiting the mother from using corporal punishment, directing that she ensure that the son remained in therapy and directing that she cooperate with unannounced visits.

The issue in this case is whether in this child protective proceeding, the aid of the court is still required.

The Court in deciding the case cited the provisions of the Family Court Act § 1012 (f) (i) (B) defines a "neglected child" as a child less than 18 years of age 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 or other person legally responsible for his care to exercise a minimum degree of care; in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment or by any other acts of a similarly serious nature requiring the aid of the court.

In the instant case, the evidence adduced is sufficient to establish neglect by the mother as to her son based on her use of excessive corporal punishment. The allegations of derivative neglect have also been established by the requisite quantity of evidence. By inflicting excessive corporal punishment upon her son, the mother demonstrated a sufficiently flawed understanding of the duties of parenthood to warrant a finding of derivative neglect.

The Court said that, Article 10 of the Family Court Act was enacted "to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being". The statutory scheme is intended to be remedial, not punitive in nature. That purpose is subverted when it is used to punish parents in the name of child protection. Consistent with that purpose, Family Court Act § 1051(c) was enacted requiring the Family Court to dismiss a child protective proceeding even though there is sufficient evidence to support a finding of neglect where the court determines that "its aid is not required on the record before it". Although this provision has been contained in the Family Court Act since its initial passage in 1962, such motions are not frequently granted. As a result, there is not a great deal of case law to elucidate its meaning and application. Nevertheless, a review of the limited existing case law establishes that the dispositive issue is whether the facts and circumstances establish that there is a likelihood of present or future neglect. In order to answer that question, the courts have considered a number of overlapping factors, including but not limited to, the nature of the original allegations, whether the underlying problems have been resolved and whether the respondent has complied with and completed all recommended services.

The courts have considered the nature of the original allegations to the extent that they indicate a likelihood of future neglect. Accordingly, Family Court Act §1051(c) has been applied in a number of cases involving allegations of medical and educational neglect where the underlying problems that led to the original filing were resolved by the time of the fact-finding hearing. Nevertheless, relief under Family Court Act § 1051(c) is not limited to cases involving medical or educational neglect. In fact, "no matter how serious the neglect, if the court concludes its aid is not required on the record before it, the court shall dismiss the petition".

The courts have also considered whether the use of excessive corporal punishment was an isolated instance or the parent regularly used excessive force. Although a single incident involving a parent's use of physical force may suffice to warrant a finding of neglect, there are instances where the record does not support such a finding, even where the parent's use of force was inappropriate. The courts have also considered whether the parent's use of physical force resulted in impairment or imminent risk of impairment to the child’s physical mental or emotional condition. The Family Court properly dismissed a neglect petition where the father struck his 11-year-old, five foot seven inch tall son in a family court waiting area after the child disappeared for 30 minutes, then refused to answer a question the father asked, the father slapped him, the son punched the father and a fight ensued; this isolated incident did not result in impairment or imminent risk of impairment sufficient to establish neglect.
In considering a motion under Family Court Act § 1051(c) courts have also focused on whether the parent has successfully completed all necessary services. For example, in one case, the court granted a § 1051(c) motion where the parent had completed services and the child was at home. In that case, the child was initially removed due to the mother's arrest. Nevertheless, by the time of the fact-finding hearing, the child had been returned home with preventive services in place and the mother had completed all services. Accordingly, the court found no basis to conclude that the child’s interests required protection or that continued supervision by a child protective agency was appropriate. Where respondent or the family continue to require supervision by a child protective agency, a Family Court Act § 1051 (c) motion must be denied because there can be no further supervision once the petition is dismissed. Accordingly the court must determine whether ongoing supervision is necessary to protect the children's interests. In deciding whether "the aid of the court is required," the courts have also considered whether services are available to the family without a dispositional order and whether a dispositional order is necessary to ensure compliance.
Consideration of these factors in light of the facts at bar leads this Court to conclude that dismissal of the petitions is warranted pursuant to Family Court Act § 1051 (c). In reaching this conclusion, this Court is cognizant of the fact that this is a case involving serious and disturbing acts of excessive corporal punishment. Many of the allegations in the petition have been established by a fair preponderance of the credible evidence, which included the mother's testimony. The allegations of derivative neglect have also been established by the requisite quantity of evidence. Nevertheless, "no matter how serious the neglect, if the court concludes its aid is not required on the record before it; the court shall dismiss the petition". Having concluded that there is no basis for continued supervision or for requiring the mother to participate in referrals made by NYCCS; dismissal is mandated by the statute.
The Court said that, although the problems in this family have not been eliminated, the mother's ability to address those problems has changed. During the last three years these changes have been repeatedly demonstrated by the mother's responses to stressful situations involving her son, including his use of internet pornography, stealing money from a family friend and lying to his mother about these events. The mother never resorted to corporal punishment. She had learned not to respond in moments of anger, stress or disappointment. Instead, she gave herself and her son time to cool off until those feelings subsided. She was then able to talk to him about his behavior and her feelings without blowing up. She learned to rely on the strong support system she built involving members of her family and her church, and she and her son continued to discuss these difficult issues in therapy.
The children have now been home for an extended period of time and ongoing supervision by NYCCS is no longer necessary to monitor the mother's conduct, supervise the home or otherwise ensure the Court that the children are being adequately protected. The Court does not question the mother's commitment to therapy and to doing whatever else may be necessary to ensure that the children's needs are met. The Court is fully satisfied that the children's interests are being protected by the mother and that dismissal is in their best interests.
For each of the forgoing reasons, the Court hereby ordered, that the subject children are released to respondent mother; and it is further ordered, that the petitions are dismissed pursuant to Family Court Act § 1051.
If you are involved in a similar case at bar, seek the advice of a Bronx Child Custody Attorney and Bronx Order of Protection Attorney in order to defend your right as regards the custody of your child. We can help you at Stephen Bilkis and Associates, by providing competent Bronx Family Attorney to handle your case.