The first thing that parents must understand is that Child Protective Services (CPS)may remove a child from a home and place the child in protective custody at any time during the investigation process. If state investigators reasonably believe that a child is in danger, the law empowers them to place children in emergency protective custody.
For parents accused of child abuse or neglect, one of the most important way to protect themselves and their families is to understand the terms and process when Child Protective Services opens a case and seeks to involve the New York Family Court.
Defining Child Abuse and Neglect Cases in New York
What is child abuse or neglect?
- Child abuse means a parent or a person responsible for the child seriously injures the child or places the child at risk for serious injury.
- Child neglect means a parent or a person responsible for the child harms the child physically, mentally, or emotionally or places the child at risk of harm by failing to care for the child or by failing to supervise him properly, or by abandoning the child.
The Abuse or Neglect Case- Step-by-Step
- The initial report and investigation:
An initial report is generated by someone (sometimes a teacher, doctor or other child care professional) who reports neglect or abuse to Child Protective Services. Social workers from Child Protective Services will then investigate the report. This is done by them interviewing potential witnesses, involved persons and the child. If there is "some credible evidence" that the report is true, the report is "indicated". If there is no credible evidence, the report is unfounded. Indicated reports are kept in the Statewide Central Register of Child Abuse and Maltreatment. Employers who work with children and agencies for foster care and adoption have access to that Registry. Any indicated report can be reviewed at the request of the accused parent to have the report changed to unfounded and/or sealed from potential employers.
- Services offered by CPS:
CPS will offer and provide services to the family when the report is indicated. The services are meant to help alleviate concerns and rectify circumstances that prompted the report and findings.
- Court process:
CPS has the ability and authority to commence a family court case by filing a neglect or abuse petition against the parent or person responsible for the child. Court actions are more likely when the circumstances are severe or if the parent refuses to cooperate with “preventative services” after there is an indicated CPS report.
- Removal Hearings: CPS may seek to take the child away from the parent and place the child with relatives or foster parents. The parent is given an opportunity to cooperate with the plan. However, if the parent does not agree with this plan, the parent can choose to have a removal hearing where the Court decides whether there is "imminent risk of harm" to the child and whether CPS made "reasonable efforts" to keep the family together in a safe way.
- The judge will make a “finding of facts” to decide, either by agreement or by trial, whether the allegations in the neglect or abuse petition are true. If the court concludes there was abuse or neglect, then the Court will determine, either by agreement or trial, where the child should live and the responsibilities of the parent.
- If the child remains with relatives or foster parents, the Court will hold a permanency hearing to determine the goals of the case, services for the parent and child, and any visitation plan. A permanency hearing is held eight months after the child is initially placed and then every six months.
- Children may be returned to the parent's care at any point in this process. Parents will sometimes need to complete parenting classes and/or substance abuse or mental health treatment prior to the Court approving a return.
- If the child remains in foster care for 15 of the most recent 22 months, CPS must file a petition to terminate the parent's rights. It is less likely that CPS will file that petition if the children are placed with relatives who are not foster parents, but it is still possible. The Court will have a trial to decide whether the parent's rights should be terminated or if the parent should have more time to work toward the child's return to the parent. At that time, the parent may choose to surrender his or her parental rights with or without conditions for post-adoption contact with the child.
The Parent Right to an Attorney
A parent has the right to an attorney when facing a neglect or abuse petition and a petition to terminate parental rights. Additionally, the child has a right to a lawyer and an Attorney for the Child will be assigned to represent the child throughout the process.
Stephen J. Riebling, Jr. is a Family Law attorney and partner with Riebling & Payton, PLLC, located in Westchester County, NY and has been practicing for nearly 25 years. To learn more about Mr. Riebling and the firm, visit Riebling & Payton, PLLC at www.RieblingPaytonLaw.com.