Child Neglect and Abuse Proceedings in Family Court
An Outline in Understanding Article 10 of the Family Court Act
By J. Douglas Barics
Revised August 2019
1. Child Neglect and Abuse
Child neglect and abuse proceedings are civil matters brought by an authorized agency against parents accursed of neglecting or abusing their children. These proceedings are governed by Article 10 of the Family Court Act, and are heard exclusively in Family Court. In New York City, the agency authorized to file neglect proceedings is the Administration for Children's Services (ACS). Elsewhere it is usually Child Protective Services (CPS). All neglect matters by a bench trial and determined by a Family Court judge; there is no right to a trial by jury. When the abuse or neglect is severe, there may be concurrent criminal charges filed against the parents as well, which occurs in a different court.
2. Initial Procedure for Child Neglect & Abuse Matters
When a case of suspected neglect or abuse of a child is reported, CPS or ACS will conduct an initial investigation. If it does not appear there is any imminent risk to the child, the child will remain with the parents, and the case will be further evaluated, resulting in one of three outcomes.
- Unfounded, which means there is no credible evidence of neglect.
- Indicated, which means there is some credible evidence of neglect, but not sufficient to commence a neglect petition.
- Indicated, which results in the filing of a neglect petition.
If the authorized agency determines that a child is at imminent risk, the agency is authorized to remove the child without a court order under Family Court Act Article 1024. If the child is removed, the parents are entitled to an emergency hearing to keep the child home. ACS or CPS are required to file a petition in Family Court, giving specific written notice to the parents as to what the charges are against them.
Once a petition is filed, the following procedure will be followed.
3. The Initial Court Court Date in Family Court
On the initial date in Family Court, the child protective agency will either consent to the child remaining with the parent(s) or request that the child be placed in foster care during the pendency of the proceeding. If the child remains with the parents, the court will adjourn the case for a fact finding hearing, or a conference control date.
4. Emergency Hearings under Family Court Act Article 1027 or 1028
If the agency requests that the child be remanded to foster care, a parent is entitled to an emergency preliminary hearing under either FCA 1027 or 1028. An Article 1027 hearing take place when the child has been removed without a court order and no later than one day after the filing of a petition. If a 1027 hearing did not occur, a hearing under FCA 1028 may be requested on the initial court date and must take place within three days of the request. A 1028 hearing cannot be waived, and failure to request a 1028 hearing at the initial court date does not prevent the parent(s) from requesting a 1028 hearing at any time prior to the fact finding hearing.
At a 1027 or 1028 hearing, it is the agency's burden to show that the child would be in imminent risk if left with the parent. Failure to show imminent risk will result in the child being returned to the parent. The agency is entitled to an automatic stay from any order returning a child in order to file an appeal, which if filed, is decided on an expedited basis.
a. Evidence at the 1027 or 1028 Hearing
The rules of evidence for a 1027 or 1028 hearing are relaxed. Pursuant to Family Court Act 1046(c), evidence must be material and relevant, which means hearsay is permitted.
b. Burden of Proof - Imminent Risk
If the agency shows there is imminent risk to the child, he or she will be removed from the parents accused of neglect and placed in foster care until there is a subsequent court order or until the final disposition of the case.
If the child is placed in foster care, the agency will attempt to place the child with a parent who is not changed with neglect. If both parents are respondents, or if the non respondent parent is unable to take the child, the agency will next tries to place the child with relatives. If there are no suitable relatives, the child will be placed in non kinship foster care.
5. The Fact Finding Hearing
The fact finding hearing is the main hearing in the neglect or abuse proceeding. It is heard before a judge without a jury, and is authorized under Family Court Act 1044. At the fact finding hearing, the agency may present its case to prove one or more of the allegations of neglect or abuse contained in the petition. Failure to prove at least one of the allegations will result in the petition being dismissed. If new evidence of neglect or abuse is uncovered during the case, or even during trial, the agency can freely amend the petition. However, if the petition is amended, the court must grant the respondent an adjournment to allow them to develop a defense to the new allegations and prevent a trial by ambush.
a. Evidence at the Fact Finding Hearing
At the fact finding hearing, only evidence which is material, relevant and competent may be admitted. However, there are several statutory exceptions to the normal rules of evidence. See FCA 1046 (a). Only facts which occurred on or before the date the petition is filed may be considered by the court. Any factual allegation constituting neglect which took place after the filing date requires that the agency amend the petition.
b. The Burden of Proof at the Fact Finding Hearing
At the fact finding hearing, the agency must prove their case by a preponderance of the evidence. This is a much lower standard than a criminal matter, which is beyond a reasonable doubt. For abuse cases, if the agency proves by clear and convincing evidence that the child has been abused, the agency is not required to make diligent efforts to reunite the child with the family. Absent this finding, the agency is obligated to make these efforts to return the child to the parent(s).
If neglect or abuse is not proven by the agency, then the matter is dismissed.
If neglect or abuse is proven, then the matter proceeds to a dispositional hearing.
6. The Dispositional Hearing Follow a Finding of Neglect or Abuse
A dispositional hearing under Family Court Act 1045 occurs only if there has been a finding of neglect or abuse. The purpose of a dispositional hearing is to determine how the neglect case should be resolved. The most common options are returning the child to the parent(s), placing the child with relatives under kinship foster care or placing the child in non kinship foster care. Furthermore, the agency may impose certain requirements on the parents which relate are intended to correct the situation which lead to the finding of neglect. If the parents fail to cooperate with the recommendations, the agency can file to extend the placement of foster care, and may file a new petition to terminate the parental rights of the parents.
a. Evidence at the Dispositional Hearing
For a disposition hearing, evidence need only be material and relevant, meaning that hearsay is permitted. In addition, any new facts occurring up to the date of the dispositional hearing may be considered by the court at a dispositional hearing.
b. Burden of Proof at the Dispositional Hearing
The court's determination of what the bests interest of the child, in light of the underlying neglect or abuse finding, will determine the final disposition of the proceeding
About J. Douglas Barics
J. Douglas Barics is a family law attorney located in Commack NY who regularly represents individuals in all divorce and family law matters.
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