Articles Posted in Child Abuse & Neglect

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April 19,2017

In October of 2017, the Administration of Child Services (ACS) filed an Article 10 proceeding on behalf of the child Donnisha, against the paternal grandmother and uncle.

A petition for neglect states that Ms. PW (grandmother), and Mr. S (uncle), are responsible for the child’s care under Family Court Act (FCA 1012). The petition alleges that the defendants are failing to properly care for the child (neglect), and are inflicting corporal punishment.

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In Re: T.G. a Minor Allegedly Neglected by P.G. – No. NN-20507/15

This matter came to the court on inquest after the respondent failed to appear on three different occasions. The petition alleges that the respondent neglected her child and failed to provide proper guardianship and supervision.

In a child neglect case, the petitioner is required to prove by a preponderance of material and relevant evidence that the subject child’s emotional, physical and mental well-being was impaired (FCA 1046 (b)(1). It must also be proven that the harm to the child was directly caused by the respondent’s failure to provide a minimum degree of care (Nicholson v. Scopetta, 3 NY 3d 357, 368 (2004).

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In a child neglect proceeding brought pursuant to Family Court Act article 10, the parties stipulated to have the Nassau County Department of Probation investigate the underlying circumstances relating to the alleged child neglect and to thereafter issue a report, including its recommendations. The parties further agreed to allow the court to use the Probation Department’s report “to aid it in rendering a decision” in the matter.

The Probation Department, which was not a party to the stipulation, produced a report which did not, however, contain any recommendations. By order dated April 30, 1984, then Family Court Judge PC, before whom the proceeding was pending, directed the Probation Department to make a definite recommendation. When the Probation Department informed Judge PC that it did not consider it appropriate for it to make recommendations prior to the court’s making of a finding of neglect, Judge PC reiterated her order. The Probation Department thereupon commenced the instant proceeding in the Supreme Court to annul Judge PC’ order, to prohibit its enforcement, and to obtain a declaration that Family Court Act §§ 1047 and 1048 preclude it from furnishing reports to the Family Court prior to completion of a fact-finding hearing. Judge PC cross-moved to dismiss the petition, inter alia, on the ground that a CPLR article 78 proceeding in the nature of prohibition is not available to obtain the relief sought.

Initially, appellant (Judge PC) raises the question as to whether a CPLR article 78 proceeding is the appropriate vehicle to challenge the Family Court’s direction since prohibition is an “extraordinary remedy” that is available against a court only when it acts without jurisdiction or exceeds its authorized powers. Purported errors of law, which are not properly reviewable by a CPLR article 78 proceeding in the nature of prohibition, are often incorrectly asserted to have been made in excess of jurisdiction

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The Presentment Agency moves, pursuant to a motion for summary judgment, for an order adjudging an after-born child to be permanently neglected, upon the ground that the parents of the two older siblings of the after-born child have previously been adjudicated unable to provide proper and adequate care for them.

The facts of the case is as follows: On March 27, 1998, the two older children of the parties, SH and MH, ages four years and two years respectively, were removed by Nassau County DSS and an application for return pursuant to FCA §1028 was filed by the parents. The Court tried that matter from April 24, 1998 through May 8, 1998, resulting in a denial of the application to return.

Thereafter, the fact finding hearing concerning the two older children was commenced on August 31, 1998 and did not conclude until May 7, 2001. The reason for the lengthy hearing was that counsel for one of the parties had an extended illness, that the Mother had been committed to Pilgrim State Hospital for a long period of time and that the Father had been a voluntary resident at various times at the Northport VA Hospital, psychiatric unit.

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In an action in which a judgment of the Supreme Court, Kings County, was entered, Inter alia, granting plaintiff and defendant a divorce, defendants appeal from an order of the same court, dated July 27, 1978, which, upon plaintiff’s motion, “resettled and clarified” the judgment of divorce, by (1) amending and reducing defendant H’s visitation privileges, and (2) amending a provision whereby plaintiff would be responsible for certain hospitalization expenses incurred by defendant.

By judgment of the Supreme Court, plaintiff, Mr. H, and defendant Mrs. H were both granted a divorce. That judgment awarded temporary custody of the couple’s son to plaintiff. Mrs. H was to have visitation on the first, second and fourth weekends of each month, as well as on certain other days. The judgment further provided as follows:

“ORDERED, ADJUDGED and DECREED, that the plaintiff will pay any hospitalization fees in the event that the defendant is committed to a psychiatric hospital by a duly certified psychiatrist; that the plaintiff’s attorney shall receive a doctor’s prescription of the defendant’s need and a further copy furnished to this Court”.

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