Article 10 of the Family Court Act - Neglect of a Child

Upon an investigation by Child Protective Services (CPS), their findings may be referred to the local County Attorney for the filing of a neglect petition in the New York State Family Court. Once a neglect petition is filed the County can ask for the subject of the petition, usually the parents, to comply with certain directives such as drug/alcohol treatment and/or seek removal of the children into foster care. An Article 10 proceeding under the Family Court act is very serious and a skilled family law attorney is necessary.

Removal of children into foster care is every parent’s worst nightmare. With respect to neglect it is important to understand what needs to be proved in a neglect proceeding. Below is the law as it pertains to neglect and examples where neglect was found in two cases.

Most recently, at the Rockland County Family Court our family law attorneys had a neglect petition dismissed in the middle of trial as the Rockland County Attorney and CPS could not prove that the children were neglected. In that matter a report had been made to CPS that the parents abused drugs and alcohol and drove drunk with their children in the car. Fortunately, our family court attorneys were able to challenge the evidence by CPS and prove that the report was not credible and there were no safety concerns regarding the children. The children that had previously been removed from their parent’s care were immediately returned.

To understand neglect, a child is neglected when his or her physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his or her parent to exercise a minimum degree of care in providing the child with proper supervision or guardianship by misusing a drug or drugs or alcoholic beverages to the extent that the parent loses self-control of his or her actions. FCA 1012(f)(i)(B).

For a finding of neglect, there must be proof of actual or imminent physical, emotional, or mental impairment to a child, and proof that any such actual or imminent impairment is a "consequence of the parent's failure to exercise a minimum degree of parental care" (Matter of Christian J.S. (Jodi A.F.), 132 A.D.3d 1355; Matter of Afton C. [James C.], 17 NY3d 1, 9, 950 NE2d 101, 926 NYS2d 365 [2011]; see Family Ct Act § 1012 [f] [i]).

As the Court of Appeals has explained, "[t]he statute . . . imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence . . . First, there must be proof of actual (or imminent danger of) physical, emotional or mental impairment to the child . . . Second, any impairment, actual or imminent, must be a consequence of the parent's failure to exercise a minimum degree of parental care . . . This is an objective test that asks whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances" (Matter of Afton C. [James C.], 17 NY3d 1, 9, 950 NE2d 101, 926 NYS2d 365 [2011] [internal quotation marks omitted]).

Neglect has been found by the New York Family Court in cases such as Matter of Nicolette I. (Leslie I.), 110 A.D.3d 1250 in that matter the Family Court took judicial notice of the prior neglect proceedings against the father that had involved, among other things, allegations of substance abuse and had led to an order requiring "strict compliance." A DSS caseworker testified that the child stated that she had found the father asleep on the kitchen floor and was frightened as she could not waken him. The following day, the caseworker made an unannounced visit to the home. The father initially refused to answer the door, and when he did so at the child's urging, the caseworker smelled alcohol, the father admitted to drinking several beers, and his behavior was erratic and belligerent. The father acknowledged using alcohol on the day of this visit and on at least one other occasion while the child was in his custody; his testimony regarding how often this had occurred was notably contradictory and inconsistent. He further acknowledged use of marihuana during the pertinent time period. Both a former friend and the mother testified that the father had used alcohol and/or drugs in their presence during the subject period.

In a similar matter, the New York Family Court found neglect when presented with facts from the caseworkers that the child had reported that, as a result of respondents' drinking, they would pass out and she would have to care for her younger brother, and each of her parents would drink and drive with the children in the vehicle. The child’s testimony as to the respondent driving while intoxicated with the children in the vehicle was also corroborated by an independent source. The testimony of caseworkers also established that the father admitted to, at times, drinking a six-pack of beer a day and occasionally becoming intoxicated and that the mother recognized that their drinking was a problem and admitted to sometimes drinking up to six glasses of wine a day and occasionally becoming intoxicated. One caseworker testified that she made an unannounced visit to respondents' home at which time she observed the father asleep on a couch and the mother smelled of alcohol, had glassy eyes, slurred speech and her emotions were varied and mixed. At this visit, the mother informed the caseworker that, prior to her arrival, she had driven the children to a relative's home, and the child later reported that the mother had driven them after consuming alcohol. The child also reported to the caseworker that her parents would often pass out from drinking, forcing her to care for the minor children, and they had each operated motor vehicles in an erratic fashion with the children as passengers while, or soon after, consuming alcohol to the point of intoxication. Further, the child testified as to the history of her parents' excessive drinking habits and intoxication as she observed them. The mother testified and admitted that she drinks two to six glasses of wine per day and that the father assaulted the mother and at the time of the assault, the father had been drinking heavily. See, In re Megan "G", 291 A.D.2d 636.

If you or a loved one is the subject of a CPS investigation, has in indicated finding by CPS or a Family Court case brought against them, call our law office for a free initial consultation to fight the allegations.