By Joseph H. Nivin, Esq.

Introduction

In the child protective part of New York Family Court, jurists face dueling responsibilities when called upon to determine whether domestic violence constitutes child neglect.[1] First, the Family Court must execute the purposes of N.Y. Family Court Act (FCA) Article Ten, which are “to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being.”[2] However, when determining whether to interfere with parental behavior, courts must be cognizant of the risk of “unwarranted state intervention into private family life.”[3]

The cause of action for child neglect based upon domestic violence is particularly complex, given the absence of statutory guidance.  While the statute mentions several specific causes of action for child neglect,[4] courts have instead held that domestic violence fits within the so-called “catch-all” phrase of FCA §1012(f)(i)(B).[5] This catch-all phrase provides a cause of action for “any other acts of a similarly serious nature requiring the aid of the court.”[6]

This article focuses on the analysis that courts have used to determine whether children are neglected based upon impairment or imminent risk of impairment to children’s mental or emotional conditions caused by domestic violence by their parents or other persons legally responsible.[7]

An Overview of Child Protective Proceedings

N.Y. FCA Article Ten governs child protective proceedings.  The purpose of Article Ten is, to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being.  It is designed to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met.[8]

A child protective proceeding may be initiated by a child protective agency, or by a person on the court’s direction.[9] Upon the filing of a petition alleging child neglect, the Family Court has the authority to order that a child be temporarily removed from the care of the parent or person legally responsible[10] to avoid imminent risk to the child’s life or health.[11] The Family Court also has the authority to issue temporary orders of protection,[12] or release the child to the custody of his parent or person legally responsible under the supervision of the child protective agency pending a final order of disposition.[13]

A hearing to determine whether the child is an abused or neglected child is called a “fact-finding hearing.”[14] At a fact-finding hearing, the petitioner has the burden to prove that a child is an abused or neglected child by a preponderance of the evidence.[15] If the Court finds that facts sufficient to sustain the petition are established, the Court shall enter an order finding that the child is an abused or neglected child, unless the Court finds that the aid of the Court is not required.[16]

Upon the entry of an order finding that the child is an abused or neglected child, the Court schedules a “dispositional hearing.”[17] At the dispositional hearing, the Court may enter one of several dispositional orders.  The Court may suspend judgment,[18] release the child to the custody of his parents or other person legally responsible,[19] enter an order of protection,[20] place a respondent under the supervision of a child protective agency, social services agency, or duly authorized agency,[21] or issue an order of custody to relatives or other suitable persons.[22]Additionally, the Court may place the child with the local commissioner of social services, a duly authorized agency, or with a relative or other suitable person.[23]

This article examines the factors which courts consider in determining whether children are neglected children, based upon acts of domestic violence committed by their parents or other persons legally responsible.  First, the article will explore judicial analysis of whether expert testimony is necessary to prove that domestic violence caused impairment, or imminent risk of impairment, to the child’s mental or emotional condition.  Second, the article will examine the “severe or repetitive standard” created by the Supreme Court of New York, Appellate Division for the Second Department.[24]

Is expert testimony necessary to prove impairment, or risk of impairment, of the child’s mental or emotional condition?

Prior to the Court of Appeals’ landmark decision in Nicholson v. Scoppetta,[25] both the First Department and the Second Department held that expert testimony was not necessary to prove impairment or imminent risk of impairment of a child’s mental or emotional condition within the meaning of FCA §1012(f).[26] The Nicholson court followed the reasoning of the First and Second Departments.[27]

Prior to Nicholson, in In re Lonell J., the First Department reversed the Bronx County Family Court, which held that because domestic violence was not enumerated as a cause of action in FCA §1012, expert testimony was necessary to establish that the children were traumatized as a result of witnessing domestic violence.[28] The Lonell J. court found this reasoning unpersuasive for several reasons.  First, the Court noted the “catch-all provision” of FCA §1012(f)(i)(B), which establishes a cause of action for “any other acts of a similarly serious nature requiring the aid of the court.”[29] The Lonell J. court held that the provision highlighted the Legislature’s goal of protecting children from all types of maltreatment, not just those which were specifically enumerated in the statute.  The Court held that the lower court’s narrow interpretation would fail to serve the Legislature’s goal.[30] Second, the Court noted FCA §1046(a)(viii), which provides that proof of impairment of emotional health, or impairment of mental or emotional condition, may include competent opinion or expert testimony.  The Lonell J. court held that a requirement for expert testimony in domestic violence cases would be inconsistent with this provision.[31] Third, the Court held that because the youngest children are unable to communicate with an expert, a requirement for expert testimony would deny protection to the most vulnerable children.[32] Accordingly, the Court reversed the lower court’s dismissal of the petition, and entered a finding of neglect on behalf of the children.[33]

For these same reasons, the Lonell J. court rejected the reasoning of the Rockland County Family Court in In re Bryan L.,[34] which held that because a finding of “imminent danger” required proof that the danger was “near or impending, and not merely possible,” proof of imminent danger of mental or emotional impairment required expert testimony in domestic violence cases.[35] In 1998, seven years after Bryan L., the Second Department in In re Deandre T.[36] held that expert evidence was not necessary to prove impairment, or imminent risk of impairment, of a child’s mental or emotional condition in domestic violence cases.[37]

In Nicholson v. Scoppetta,[38] the Court of Appeals explicitly followed the reasoning of the Lonell J. court in holding that expert testimony is notrequired to prove impairment or imminent risk of impairment to a child’s mental or emotional condition in domestic violence cases.[39] At the same time, the Court stated that in some cases, it might be difficult for a presentment agency to prove such impairment without expert testimony, or prove that such impairment is clearly attributable to a respondent’s failure to provide a minimum degree of care.[40]

Since Nicholson, courts have consistently affirmed lower court finds of neglect, citing the lack of a need for expert testimony to sustain petitions alleging child neglect based upon domestic violence.[41] Therefore, in spite of the Nicholson court’s finding that the absence of expert evidence may make it difficult for the presentment agency to prove neglect based upon domestic violence, New York courts have generally sustained such petitions without expert evidence.

The “severe or repetitive” standard

In In re Todd D.,[42] the Second Department held, “While domestic violence is. . .a permissible basis upon which to make a finding of neglect. . ., such findings are generally made where the domestic violence is so severe or repetitive that it creates an imminent danger that the child’s physical, mental, and emotional health would be harmed[.]”[43] Like the Todd D. court, many courts have looked more to the nature of the violence to determine whether a child suffers impairment or imminent risk of impairment in domestic violence cases, rather than requiring independent evidence of such impairment.  These courts presume that certain acts or patterns of violence, by their very nature, create impairment or imminent risk of impairment within the meaning of FCA §1012(f).

This section will examine (1) when a single act of domestic violence constitutes child neglect, and (2) when a pattern of domestic violence constitutes child neglect.

When does a single act of domestic violence constitute child neglect?

The Second Department has held that an isolated instance of domestic violence outside of the child’s presence is insufficient to establish child neglect.[44] The First Department has followed the Second Department’s reasoning, and reversed lower courts’ neglect findings based upon single instances of domestic violence outside of the children’s presence.[45]

Nevertheless, all four appellate departments have held that a single act of domestic violence in the child’s presence can constitute child neglect.[46] Courts have found that these single acts constitute neglect where they are particularly violent.[47]

As outlined below, decisions by the First Department, and by lower courts in the Second Department, have suggested that some single acts of domestic violence, when the acts are particularly violent, constitute neglect even where they take place outside of the child’s presence.

Does a finding of poor parental judgment, demonstrated by violent acts, establish imminent risk of impairment?

The First Department has recently suggested that some acts of domestic violence are so violent that the perpetrator’s impaired parental judgment, in itself, places the child’s mental or emotional condition in imminent danger of impairment.  As stated by, ironically, the First Department, in In re Daphne G.,[48] such reasoning suggests that single acts of domestic violence do not have to take place in the child’s presence to constitute child neglect.[49] After all, a single act of domestic violence even outside of the child’s presence can also demonstrate impaired parental judgment.

In In re Jared S., in 2010, the First Department held, “A single incident of domestic abuse is sufficient to support a finding of neglect where the parent’s judgment was strongly impaired and the child was exposed to a risk of substantial harm, as here[.]”[50] Similarly, in In re Jennifer V.,[51]in 1999, the Court held, “[R]espondent’s tendency to violence presents an imminent danger to the child’s well-being.”[52] The Jennifer V. court recognized that the respondent committed acts of violence in the child’s presence, but the finding was based not upon the child’s exposure to the violence, but rather the respondent’s violent tendency.[53]

In In re Daphne G., the First Department recognized that such reasoning could lead courts to find neglect based upon single acts of domestic violence outside of the child’s presence:

While it cannot be gainsaid that a person who has committed acts of domestic violence is also capable of unreasonably inflicting or allowing to be inflicted harm or creating a substantial risk of harm to a child, a plain reading of the statute does not lend itself to so expansive an interpretation as to include the capacity to inflict harm.  Indeed, the danger of so broad an interpretation as to cover the incident that occurred here is that anyone found to have committed an act of domestic violence could be subject to a finding of child neglect irrespective of when the domestic violence occurred and whether the child was even exposed to it.[54]

Therefore, it is significant that the Jared S. court cited a parent’s impaired judgment as a ground to find impairment within the meaning of FCA §1012(f).  Because a single act of domestic violence, even outside of the child’s presence, can show impaired parental judgment, the Jared S.reasoning may signal a departure from the rule that such an act alone does not constitute child neglect.[55]

Departure from the Second Department rule in especially violent cases?

Kings County Family Court and Suffolk County Family Court have held that single acts of domestic violence, when they are especially severe, may constitute child neglect not only based upon the actual witnessing of the violence, but also based upon its aftermath.  Such reasoning suggests that a single act of domestic violence may constitute child neglect, even where the child did not witness the actual moment of impact, but witnessed the aftermath of the violent act.

In In re Crystal R. v. James R.,[56] the Suffolk County Family Court entered an order of fact finding based upon domestic violence, holding,

Crystal may or may not have witnessed the phone leave her father’s hand, or hit the back of her mother’s head, however viewing the aftermath of the violence and its effects may be worse than witnessing the act itself.  Clearly, it is not the awareness of the act causing their mother’s injuries,but the observation of her bleeding and crying that impacts upon Crystal and James.[57]

Therefore, the Crystal R. court held that the children suffered impairment, or imminent risk of impairment, of their mental and emotional conditions even though they may not have witnessed the moment of impact.  Rather, they suffered based upon their witnessing of the aftermath of the injury.[58]

In a particularly gruesome case, the Kings County Family Court held that the respondent father abused and neglected his three children, where he brutally murdered their mother and maternal grandmother while the children were present in the home.[59] The Court held that the subject children were abused and neglected because (1) they were placed in danger of physical harm,[60] (2) they witnessed the violence which resulted in the deaths of their mother and grandmother, (3) they were uprooted from their home, and (4) they may suffer lingering feelings of responsibility.[61]

In finding impairment based upon the latter two factors, Kings County Family Court hinted that even without witnessing the actual violent acts, the aftermath alone may cause impairment within the meaning of FCA §1012(f).

Therefore, the Crystal R. and Shanaye C. decisions leave room for courts to consider finding neglect based upon especially violent single instances of domestic violence, even where the children did not witness the actual moment of impact.  This could allow courts to find exceptions, in extreme instances, to the Second Department rule that isolated acts of domestic violence outside of the child’s presence do not constitute child neglect.[62]

The Analysis of Impairment in the Third Department: Emphasis on the Child’s Behavior

In evaluating whether a single act of domestic violence constitutes child neglect, the Third Department emphasizes the children’s reactions to the violence.[63] Other factors include whether the victim suffered physical harm,[64] whether the child witnessed the violence,[65] whether the child was aware of the violence,[66] and the duration of the violence.[67]

In In re Richard T., the Third Department affirmed an order of fact finding based upon a single instance of domestic violence.[68] Several months later, in reversing a lower court’s order of fact finding, in In re Daniel GG, the Third Department distinguished Richard T. as follows:

There, [in Richard T.], the incident occurred in front of the children, one child was brought into the skirmish, the altercation continued until the father was contacted and came to the scene and, importantly, the incident caused the children to become visibly upset.  By way of contrast, there is no evidence of any impact (emotional or physical) of this incident on Daniel and he ostensibly was not even in the same room as respondent and the grandmother when the incident occurred.  Moreover, the incident—which did not cause physical harm to the grandmother—was isolated and of short duration.[69]

The Daniel GG court, in reversing the fact finding order, emphasized that the child was not present during the incident.

However, the same court, in In re Kaleb U., found neglect where the child did not witness the violent act.  The Kaleb U. court held that the child was neglected, because the child “was aware of [the violent act] and was frightened.”[70] Therefore, the dispositive factor is the evidence of the child’s emotion, rather than the nature of the act itself.  The Kaleb U. court also considered evidence of other acts of domestic violence, the respondent’s consumption of alcohol and marijuana, and the child’s special vulnerabilities.[71]

Thus, in evaluating causes of action based upon single acts of domestic violence, the Third Department’s emphasis on evidence of the child’s emotional state is distinguishable from the First and Second Departments’ emphasis on the acts’ level of violence.[72]

The Second Department: Drug use in conjunction with domestic violence.

The Second Department has also affirmed findings of neglect based upon single instances of domestic violence in the presence of the child, where there is also evidence of drug use by the respondent.[73] Therefore, the general rule in the First and Second Departments is that single acts of domestic violence outside of the children’s presence do not constitute child neglect.[74] In finding neglect based upon single instances of domestic violence, these departments emphasize the violent nature of the acts.[75] With regard to the most violent acts, courts in the First and Second Departments have suggested that they may constitute neglect even where the children do not witness the moment of impact.[76] In contrast, the Third Department has held that the children’s behavior, rather than the nature of the act, is dispositive in determining impairment.[77]

The next section will discuss judicial analysis of when patterns of domestic violence constitute child neglect.

When a pattern of domestic violence constitutes child neglect. The First and Second Departments generally find that repeated acts of domestic violence in the presence of children constitute child neglect.  In In re Athena M.,[78] the First Department held,

[T]he evidence of acts of severe violence between respondents in the presence of their children is sufficient to show, ‘as a matter of common sense’, that the children were in imminent danger of becoming impaired within the meaning of Family Court Act §1012(f)(i)(B), and indeed that the oldest child had already suffered actual emotional harm.[79]

Nevertheless, the Athena M. decision does not discuss what constitutes “severe violence.”

The Second Department has held that a pattern of domestic violence does not per se constitute child neglect, even where it takes place in the presence of the children.[80] Rather, the petitioner must present evidence of the nature or extent of the violence, or evidence of actual or imminent impairment of the children’s emotional or mental condition.[81] In any event, both the First Department and Second Department consistently affirm orders of fact finding based upon repeated acts of domestic violence in the presence of the children.[82]

The Third Department has held that evidence of repeated domestic violence is insufficient to prove child neglect, absent independent evidence of impairment or imminent risk of impairment of the child’s physical, mental or emotional condition.[83] In contrast, the Third Department affirmed a finding of neglect based upon a pattern of domestic violence, where there was evidence that the children were aware of, and disturbed by, the violent conduct.[84]

The Fourth Department has held that evidence of a pattern of domestic violence, combined with evidence of a single act of domestic violence in the child’s presence, established child neglect.[85]

Therefore, as a general rule, a pattern of domestic violence in the presence of the children constitutes child neglect, so long as some evidence exists of impairment or imminent risk of impairment of the child’s mental or emotional condition.[86]

Conclusion

When the Family Court evaluates child neglect cases based upon domestic violence, the Court has to cope with the dueling responsibilities to protect children, and also to protect the sanctity of private family life.[87] As a result, New York courts have developed a variety of standards to evaluate whether domestic violence requires judicial intervention into families’ lives.  While the Nicholson court suggested that presentment agencies may have difficulty proving impairment without expert testimony,[88] appellate courts have consistently cited the lack of a requirement for expert testimony when sustaining child neglect petitions.[89] In evaluating domestic violence in the context of child neglect, the Second Department evaluates whether the violence is so severe or repetitive that it creates an imminent risk of impairment to the child’s physical, mental, or emotional condition.[90] In this vein, both the First and Second Departments have held that single acts of domestic violence outside of the presence of the children do not constitute child neglect.[91] However, courts in these departments have signaled a possible departure from this rule.  The First Department has found child neglect based upon domestic violence which indicates impaired parental judgment, a separate ground from the child’s actual exposure to the violence.[92] Additionally, lower courts in the Second Department have sustained child neglect petitions in particularly violent cases, based upon the children’s witnessing the aftermath of the violence, rather than the actual moment of impact.[93] The Third Department, rather than looking to the nature of the act, emphasizes evidence of the child’s emotional state.[94] Across the departments, where domestic violence is a pattern, it generally constitutes child neglect where there is any evidence of impairment of or imminent risk of impairment of the child’s mental or emotional condition.[95]

In domestic violence cases under FCA Article Ten, courts are called upon to apply statutory and common law principles to the most sensitive situations.  When interfering in family life, they hope to protect children from trauma, and enable them to overcome volatile childhoods.  As these common law standards evolve, New York courts hope to develop a framework to protect the sanctity of parental rights, while also making progress toward the ultimate goal of ending the cycle of child neglect.

Joseph H. Nivin owns a solo practice, The Law Offices of Joseph H. Nivin, P.C., based in Jamaica, NY, which focuses on family law.  He graduated from Brooklyn Law School in 2007, and the University of Pennsylvania in 2004.

[1] N.Y. Family Court Act (FCA) §1012(f)(i) defines a “neglected child” as “a child less than eighteen 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[.]”
[2] FCA §1011.
[3] Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 201 (2004), citing Besharov, McKinney Practice Commentary, FCA §1012 (1999).
[4] These causes of action include inadequate food, clothing, and shelter (FCA §1012(f)(i)(A)), educational neglect (FCA §1012(f)(i)(A)), medical neglect (FCA §1012(f)(i)(A)), excessive corporal punishment (FCA §1012(f)(i)(B)), substance abuse (FCA §1012(f)(i)(B) and FCA §1046(a)(iii)), and abandonment (FCA §1012(f)(ii) and N.Y. Social Services Law [SSL] §384-b(5)(a)).
[5] In re Lonell J., 242 A.D.2d 58, 61, 673 N.Y.S.2d 116, 117 (1st Dep’t 1998); see also In re Deandre T., 253 A.D.2d 497, 498, 676 N.Y.S.2d 666, 667 (2d Dep’t 1998).
[6] FCA §1012(f)(i)(B).
[7] FCA §§1012(f)(i), 1012(h).  FCA §1012(h) states that “impairment of emotional health” and “impairment of mental or emotional condition” include “a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy; provided, however, that such impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child.”
[8] FCA §1011.
[9] FCA §1032, see also FCA §1012(i).
[10] FCA §1012(g) defines a “person legally responsible” as “the child’s custodian, guardian, or any other person responsible for the child’s care at the relevant time.  Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child.”
[11] FCA §§1022(a)(i), 1027(b)(i).
[12] FCA §1029(a).
[13] FCA §§1027(d), 1054(a).
[14] FCA §1044.
[15] FCA §1046(b).
[16] FCA §§1051(a) and (c).
[17] FCA §§1045, 1047.
[18] FCA §§1052(a)(i), 1053.
[19] FCA §§1052(a)(ii), 1054.
[20] FCA §§1052(a)(iv), 1056.
[21] FCA §§1052(a)(v), 1057.
[22] FCA §§1052(a)(vi), 1055-b.
[23] FCA §§1052(a)(iii), 1055.
[24] In re Todd D., 9 A.D.3d 462, 463, 780 N.Y.S.2d 180, 182 (2d Dep’t 2004).
[25] 3 N.Y.3d 357, 787 N.Y.S.2d 196 (2004).
[26] In re Lonell J., 242 A.D.2d 58, 60-62, 673 N.Y.S.2d 116, 117-118 (1st Dep’t 1998); In re Deandre T., 253 A.D.2d 497, 498, 676 N.Y.S.2d 666, 666-667 (2d Dep’t 1998).
[27] Nicholson, 3 N.Y.3d at 383.
[28] Lonell J., 242 A.D.2d at 60.
[29] Id. at 61.
[30] Id.
[31] Id.
[32] Id. at 62.
[33] Id. at 63.
[34] 149 Misc.2d 899, 565 N.Y.S.2d 969 (Fam. Ct., Rockland Co. 1991).
[35] Id. at 904, quoting Besharov, McKinney Practice Commentary, FCA §1012 (1983).
[36] 253 A.D.2d 497, 676 N.Y.S.2d 666 (2d Dep’t 1998).
[37] Id. at 498.
[38] 3 N.Y.3d 357, 787 N.Y.S.2d 196 (2004).
[39] Id. at 383.
[40] Id.
[41] In re Niyah E., 71 A.D.3d 532, 533, 896 N.Y.S.2d 352, 353 (1st Dep’t 2010); In re Enrique V., 68 A.D.3d 427, 427, 888 N.Y.S.2d 747, 747 (1stDep’t 2009); Crystal R. v. James R., NN-20052-07 at 9 (Sup. Ct., Suffolk Co. 2008); In re Elijah C., 49 A.D.3d 340, 340, 852 N.Y.S.2d 764, 765 (1stDep’t 2008).
[42] 9 A.D.3d 462, 780 N.Y.S.2d 180 (2d Dep’t 2004).
[43] Id. at 463.
[44] In re Larry O., 13 A.D.3d 633, 633, 787 N.Y.S.2d 119, 120 (2d Dep’t 2004), see also In re Davin G., 11 A.D.3d 462, 462-463, 782 N.Y.S.2d 763, 764 (2d Dep’t 2004); In re Tali W., 299 A.D.2d 413, 414, 750 N.Y.S.2d 104, 106 (2d Dep’t 2002).
[45] In re Christy C., 74 A.D.3d 561, 562, 903 N.Y.S.2d 365, 366 (1st Dep’t 2010); In re Daphne G., 308 A.D.2d 132, 134, 763 N.Y.S.2d 583, 585 (1stDep’t 2003).
[46] In re Jared S., 78 A.D.3d 536, 536, 911 N.Y.S.2d 339, 339 (1st Dep’t 2010); In re Andrew Y., 44 A.D.3d 1063, 1064, 844 N.Y.S.2d 408, 410 (2d Dep’t 2007); In re Richard T., 12 A.D.3d 986, 987, 785 N.Y.S.2d 169, 170 (3d Dep’t 2004); In re Alfonzo T., 79 A.D.3d 1724, 1725-1726, 914 N.Y.S.2d 488, 489-490 (4th Dep’t 2010).
[47] Jared S., 78 A.D.3d at 536 (where the father placed two knives under a child’s chin at his throat, while threatening to kill the mother); In re Briana F., 69 A.D.3d 718, 720, 892 N.Y.S.2d 526, 527-528 (2d Dep’t 2010) (where the respondent asked a child to get a knife, and then held the knife to the mother’s throat in front of the child); Alfonzo T., 79 A.D.3d at 1725-1726 (where the father, wielding a knife, pushed the mother onto the bed where the six-month-old child was lying).
[48] 308 A.D.2d 132, 763 N.Y.S.2d 583 (1st Dep’t 2003).
[49] Id. at 135.
[50] Jared S., 78 A.D.3d at 536.
[51] 267 A.D.2d 41, 699 N.Y.S.2d 379 (1st Dep’t 1999).
[52] Id. at 41.
[53] Id.
[54] Daphne G., 308 A.D.2d. at 135.
[55] See In re Christy C., 74 A.D.3d 561, 562, 903 N.Y.S.2d 365, 366 (1st Dep’t 2010).
[56] NN-20052-07 (Fam. Ct., Suffolk Co. 2008).
[57] Id. at 11-12.
[58] Id. at 14-15.
[59] In re Shanaye C., 2 Misc.3d 887, 774 N.Y.S.2d 622 (Fam. Ct., Kings Co. 2003).