LAW AND THE FAMIILY
An Abused Child's Emergency Removal From Home
By Joel R. Brandes and Carole L. Weidman
The New York Law Journal
February 27, 1996
T
HE CRIME against Elisa Izquierdo, the 6-year-old girl allegedly
murdered by her mother, brought forth a surge of interest in child abuse cases. The tale
is deeply troubling. In the past, this area has been given little more than the scantiest
sort of treatment.
Talking with social service workers, one finds that many of them genuinely care about
the tragedies imposed upon the young. But workers feel somewhat imprisoned themselves,
forced by a severely underfunded, understaffed system to keep costs down, work loads up
and have cases concluded. With nearly 358 reports alleging child abuse and neglect
received on the Department of Social Service's hotline daily, it is little wonder
caseworkers feel overwhelmed. Efforts are sweeping the state, however, as agencies shift
from purely mechanical organizations to proactive, entities implementing authority
delegated to them.
Article 10 of the Family Court Act (FCA) is designed to protect children from abuse and
neglect. When necessary it permits the removal of an abused child from a parent who
commits abuse or neglect. It is intended to protect children from injury or mistreatment
and safeguard their well-being. Its further mission is to provide a system for
guaranteeing due process of law when the state intervenes on behalf of the child against
the wishes of a parent so that the child's needs are properly met.1
While parents have a right to raise their children as they see fit, they must do so within
reason and with an eye toward the good of the child. Parents have an affirmative
obligation to protect their children. If they fail to meet that obligation, the state can
and will intervene to protect them.2
Jurisdiction for Abuse, Neglect
Article 10 proceedings include ''abuse'' and ''neglect'' proceedings, with abuse
encompassing the most serious acts or omissions to act that affect a child's health and
safety.3 Article VI §13(b)(1) of the New York State Constitution
grants the Family Court jurisdiction over proceedings involving the protection and
treatment of minors who need the Family Court's exercise of authority because of neglect
or dependency. The Family Court Act specifies that the Family Court has exclusive original
jurisdiction over abuse or neglect proceedings.4
The State Constitution however, grants the Supreme Court ''general original
jurisdiction in law and equity''5 and it may opt to exercise its
jurisdiction where allegations of abuse or neglect arise in the context of a matrimonial
proceeding.6 As a practical matter, the Supreme Court generally
declines to exercise this jurisdiction and defers to the Family Court.7
If a child is abused or neglected, a peace officer, a police officer or an agent of a
duly authorized agency may remove a child from the place where he or she is residing with
the written consent of the child's parent or other person legally responsible for the
child's care. If a child is removed with consent and not returned within three days from
the date of removal, the procedures in the Family Court Act for commencing a child
protective proceeding must be set in motion.8
Abuse and neglect proceedings may only be originated by a child protective agency or
''a person on the court's direction.''9 They are commenced by the
filing of a petition alleging sufficient facts to establish that a child under 18 is
abused or neglected.10 Thereafter, a summons is issued and served
with the petition.11 After the petition is filed, in cases involving
abuse, or where the child is removed with an order, the court must hold a preliminary
hearing to determine if the child requires interim protection during the pendency of the
proceeding and may make an appropriate order, including removal from the home.12
Where a child's life or health are in imminent danger, FCA §1022 provides for
obtaining an ex parte temporary removal order before the filing of an abuse or neglect
petition, where the parent or person responsible for the child's care refuses to consent
to temporary removal or is absent and there is not enough time to file a petition and hold
a preliminary hearing.
Imminent Danger to Child
Sometimes a situation may arise that is so imminently dangerous to a child's health
or life that only the immediate removal of the child from her residence can adequately
protect her. There may be no time to resort to the Family Court to file a petition or to
seek an ex parte order pursuant to FCA §1022 for the child's removal.
In such a case FCA §1024 permits the emergency removal of the child by specified
persons without a court order or the parent's consent.13 Peace
officers, police officers, law enforcement officials, agents of a duly incorporated
society for the prevention of cruelty to children, and designated employees of a city or
county Department of Social Service (DSS) are required by statute to take all necessary
and appropriate measures to protect a child's life or health.14
When appropriate they are required to take or keep a child in protective custody
without an order and without the consent of the parent or person legally responsible for
the child's care, if they have reasonable cause to believe that the child is in such
circumstance or condition that would present an imminent danger to the child's life or
health if the child remained in that person's residence or care and there is not enough
time to apply for a temporary order of removal under FCA §1022.15
This equates to a mandatory obligation that DSS take action when a child's welfare is
seriously endangered.
If a person authorized by FCA §1024 removes or keeps custody of a child, he or she
must16 bring the child immediately to a place approved for such
purpose by the local DSS, unless the person is a physician treating the child and the
child is or will be soon admitted to a hospital. He must also make every reasonable effort
to inform the parent or person legally responsible for the child's care of the placewhere
the child has been brought. When the child is removed, the authorized person must give
written notice to the parent or person legally responsible for the child's care of the
right to apply to the Family Court for the return of the child as provided in FCA §1028.
That responsible person must also inform the court and make a report pursuant to Title
6 of the Social Services Law, as soon as possible.17 The written
notice must be personally served upon the parent or other person at the child's residence.
If the person is not present at the child's residence when the child is removed, a copy of
it must be affixed to the door of the residence and a second copy mailed to that person at
his or her last known place of residence within 24 hours after the child's removal.18
If the child is removed from a place other than his residence, a copy of the notice
must immediately be personally served on the parent or person legally responsible for the
child's care, or a copy affixed to the door of the child's residence and a copy mailed to
such person at his or her last known place of residence within 24 hours after the child's
removal.19
A 1995 New York State Senate Report advises that the Child Abuse Hotline, operated by
the Department of Social Services, received 128,111 reports of abuse or neglect in 1994.
These reports involved 210,997 children and included 131 reports of suspected
abuse-related deaths. Half of the hotline reports come from persons mandated by law to
report observed incidences of abuse or neglect.20
Who Is Authorized?
Physicians are among those authorized to help these young victims. Where a
physician who is treating a child has reasonable cause to believe that it would be an
imminent danger to the child's life or health to leave the child in the residence or in
the custody of the parent or person responsible for his care, and there is not enough time
to apply for a temporary order of removal under FCA §1022, he is required by law to
notify the DSS or appropriate police authorities to take custody of the child.21 Any physician keeping a child in custody pending action by the DSS
or police authorities has the right to keep the child in custody until the child's custody
is transferred to the police authorities or the social services official.22
Another overseer of a child's welfare is provided by SSL §417(2) under such
circumstances where a person in charge of a hospital or a similar institution may retain
custody of an abused or maltreated child until the next regular weekday session of the
Family Court in which a child protection proceeding can be commenced, regardless of
whether or not the child requires additional medical treatment during that period and
regardless of any request by the parent or guardian for the child's return.
Immediate notification must be given to the appropriate local child protective service,
which must immediately begin an investigation. If the child is in residential care, the
child protective agency must notify the appropriate state agency, which must immediately
commence an investigation. If no further medical treatment is necessary, the child
protective agency must take all necessary steps to protect the child's life and health,
including taking custody of the child if appropriate.
The child protective service must commence a child protective proceeding in the Family
Court at the next regular weekday session of the court or recommend to the court that the
child be returned to the parents or guardian.23 Where a physician
who is keeping a child in his or her custody pending action by the DSS or police
authorities is doing so in the physician's capacity as a member of the staff of a
hospital, the physician must notify the person in charge of the institution, or a
designated agent, who then becomes responsible for the further care of the child.24
If a social services official receives custody of a child pursuant to FCA §1024 the
official must promptly inform the parent or other person responsible for such child's care
and the Family Court of such action.25 Upon being informed that
there has been an emergency removal of a child from the child's home without a court
order, a child protective agency or the person designated by the court must26: make every reasonable effort to communicate immediately with the
child's parent or person legally responsible for the child's care and give the name and
address of the place where the child is being held.27
In cases that do not involve abuse, the protective agency or designated person must
return the child, if it concludes that it would not be an imminent risk to the child's
health to do so.28 In cases involving abuse, it must either
recommend to the court that the child be returned or that no petition be filed. The child
protective agency may, but need not, condition the return of a child under §1026 of the
Family Court Act upon the giving of a written promise, without security, by the parent or
other person legally responsible for the child's care that he or she will appear at the
Family Court at a time and place specified in the recognizance. It may also require such
person to bring the child with him or her.29
If for any reason the child protective agency does not return the child, or if the
child protective agency concludes that a petition should be filed under Article 10 of the
Family Court Act, it must have the petition filed no later than the next court day after
the child's removal. However, if good cause is shown, the Family Court may grant an
extension to file the petition for up to three days from the date of the child's removal.30
----------------------
Notes
(1) FCA §1011.
(2) Re Keith R. (1984) 123 Misc2d 617, 474 NYS2d 254.
(3) FCA 1012 (e) and (f) define ''Abused child'' and ''Neglected
child.'' Both sections apply only to a child younger than 18 years of age.
(4) FCA §115(a)(i); FCA §1013(a).
(5) NY Const Art VI §7(a). Paul B. S. v. Pamela J. S. (1987) 70
NY2d 739, 514 NE2d 382.
(6) See Schneider v. Schneider (1987, 1st Dept) 127 AD2d 491,
affd, ctfd ques ans 70 NY2d 739, 514 NE2d 382; Paul B. S. v. Pamela J. S., supra.
(7) People ex rel. McKay v. Barbaro (1970) 63 Misc2d 138.
(8) FCA §1021. Even if a child is removed with the parent's consent, a
hearing should be held before the child is returned. Teeter v. Pruiksma (1975, 4th
Dept) 47 AD2d 101.
(9) FCA §1032.
(10) FCA §1031.
(11) FCA §1035(a). In certain situations a warrant may be issued and
served, instead of the summons and petition. See FCA §1037(a).
(12) FCA §1027.
(13) FCA §1024.
(14) FCA §1024; SSL §417(a).
(15) FCA §1024(a); Soc Serv L §417(a).
(16) FCA §1024(b).
(17) See Soc Serv L §411 et seq. regarding the obligation to report
child abuse statutorily imposed on health professionals, school officials, and other
persons and public officials.
(18) FCA §1024(b)(iii).
(19) FCA §1024(b)(iii). An affidavit of service must be filed with the
clerk of the court within 24 hours, exclusive of weekends and holidays, after service is
made. However, failure to file the affidavit of service as required by the statute will
not constitute grounds for return of the child. The form of the notice is prescribed by
the chief administrator of the courts..
(20) http://www. Senate. State. NY. US-1995, CHF, Narrative, Child
Abuse, N 90704.
(21) FCA §1024(a).
(22) FCA §1024(e).
(23) Soc Serv L §417(2).
(24) FCA §1024(d).
(25) FCA §1024(e).
(26) FCA §1026.
(27) 22 NYCRR §205.81.
(28) FCA §1026(a)(ii); 22 NYCRR §205.81(b).
(29) FCA §1026(b); 22 NYCRR §205.81(c).
(30) FCA §1026(c); 22 NYCRR §205.81(d).
