Month: July 2010

Facebook in the hands of stupid young people….

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As I was sitting at my desk reviewing cases and typing up client notes, I came across the following story in my mail inbox: “Adolescents’ Posts Found to be ‘Puerile’ But Not Actionable”  published in the New York Law Journal.

If you would like to read the actual article, you can go here ( hopefully the link works for you) and if you’re an even bigger nerd (like me) you can read a PDF version of the Court’s decision here.

In short, a young lady from Long Island sued four of her former high school classmates and their parents in Nassau County Supreme Court for defamation and was seeking damages in the amount of $6million dollars.  It seems these  immature, insensitive and cruel teenagers thought it would be a bright idea to create a ‘private’ Facebook page where they could say mean and untruthful things about this young lady. She decided to sue.

The Judge dismissed the case holding that the facts as presented did not rise to the level of defamation, mainly because no human being with common sense and a brain would believe the things these four morons decided to write on Facebook were true (you want the legalese click on the pdf). When addressing the negligent supervision claims against the parents, the Judge also dismissed stating there was no cause of action as there was no “dangerous instrument.”  The “dangerous instrument exception” to negligent supervision states that a parent has a duty to protect a third party from harm when a child misuses a dangerous instrument, when the parent is aware of the instrument and can control its use.

The Judge held that a computer was not a dangerous instrument and that to make it so would open up a Pandora’s box (my words, not hers) for parents everywhere.

This young lady’s attorney even made the argument for cyber bullying but the Judge nixed that mainly because New York State’s laws do not (yet) recognize the aforementioned as a tort (definition: a civil wrong, accidental or intentional, that results in injury to another).

I’ll admit it, I once had a Facebook page, but the shine wore off rather quickly. Too much of a waste of time and a drain on my precious life.  It seems to me that with the advance of social media, people are much too quick to write things on-line but are none too eager to confront situations with others face-to-face, like they did it back in the “good old days” when people actually spoke on the phone or met up to actually speak to each other and tell each other off.

Now, they hide behind their computers spewing venom, not knowing that while they can erase the posts, they can never erase the impact of those words from the minds of the people reading it, or worse yet– from the target.

I hope those four young people learned a lesson. Yes, the lawsuit was dismissed but I doubt the road to that moment was anything but pleasant. And I know they will never forget it as long as they live.

I do not understand why people cannot live up to this very simple, but golden, rule- “Do unto others as you would have done unto you.” It’s that simple people, really.

What is an Article 10 proceeding anyway?

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In simplest terms, whenever you hear a lawyer refer to an “Article 1o” Proceeding, he or she is referring to a child neglect or abuse case in Family Court in the State of New York.  The Family Court Act is the body of law that governs legal matters pertaining to children and families  litigated within the Family Court. The name, Article 10, refers to the  section of the Family Court Act that governs child neglect and abuse cases.

As an attorney who has practiced in this area of law for quite a number of years, I cannot think of a more emotional subject than child neglect and abuse cases  (child custody and visitation comes in at a very close second but I will touch upon this in a subsequent blog post) in that you’re dealing with the state’s  (or city or county) intervention in the lives of families— with the very important purpose of protecting children from alleged neglect and abuse.  The removal of a  child from their home and/or having a child protection agency monitor a family is not the norm and admittedly, is very intrusive.  But it can save the lives of those who are least capable of defending themselves.

So, how does an Article 10 proceeding start? When child neglect or abuse is suspected, anyone can call the Statewide Central Register (SCR) of Child Abuse and Maltreatment and report it to State officials. However, there are those in our society who are “mandated reporters” of neglect and abuse, including but not limited to, teachers, nurses, social workers, doctors, the police and other law enforcement. If they see something or are told something, they are under a legal duty to call the SCR.

What happens then? The State official on the other end of the phone takes down all necessary and required information and generates a report, known in child welfare as the “ORT” or Oral Report Transmittal and it is sent electronically to the local child welfare agency in the specific county where the alleged incident or incidences took place.

And then? The report is received at the local child protection agency office and the case is assigned to a Child Protective Specialist (CPS) or caseworker who then begins to investigate the allegations, by calling the “reporter” (the person or persons who called the case to the State),  possibly making multiple home visits and interviewing the affected parties and witnesses (the process is oftentimes more involved than this).  The case is then reviewed and if the investigation yields information that evidences neglect or abuse, the case  is “Indicated” for such.  If the information yielded does not substantiate the claims of neglect or abuse, the case is “Unfounded” and closed.

Now what? Depending on the type of neglect or abuse alleged, as well as preventative measures (or lack thereof) taken by the family, and the level of cooperation,  the case can either be referred for preventative services in the community (parenting classes, drug rehabilitation, therapy, etc) or legal action.  In serious cases, the child protection agency can remove a child or children from a home prior to taking legal action by using their “emergency removal power” which is bestowed on them by Article 10 of the Family Court Act. When an emergency removal has taken place, an Article 10 petition must be filed the next day or if possible, the day of the removal.

What are we left with? A caseworker will go the child protection agency’s legal department to have the case reviewed by the agency’s attorneys. If the caseworker has  information that rises to the level of legal sufficiency (it spells out a case of alleged abuse and neglect) the matter is accepted for filing, an agency attorney drafts a petition and it is filed with the Court. Later in the day, the petition and the parties appear before a Judge and attorneys for all sides make the necessary applications…and the proceedings have officially begun.

Article 10 Proceedings are complicated and I could absolutely go into more detail about the above, especially the ” ifs, ands or buts”  involved… but that’s what this blog, in part, is all about, the opportunity for you to learn …post by post… and for me to write about it!