Imagine my anger when I am surfing the internet and come upon this article in the New York Daily News,”Brooklyn tot covered in bruises fights for his life after suffering horrific abuse, mom eyed.”  The toddler, who had been removed from the custody of his biological mother and placed in foster care, is currently clinging to life and suffering from various internal injuries to major organs- as well as evidence of past injuries to his body. According to the article, the seriousness of his injuries were clearly visible to anyone looking at his battered little body.

Coming from a child welfare law background I know that foster care agencies usually scrutinize potential foster parents very closely- even those who are biologically related to the children they intend to care for. If you  had past involvement with child welfare authorities, either in or out of Court, and have “indicated” or substantiated cases of abuse or neglect  in the State Central Register for Child Abuse and Maltreatment (SCR) then you cannot become a foster parent nor are you in a position to adopt a child.

What is also lesser known, is that foster care agencies also conduct criminal background checks of potential foster parents, and  individuals over the age of 18 who reside in the same home or who could come into regular contact with the child. In addition, once a child is placed in foster care regular visits by a caseworker are required to ensure the health and safety of the child.  So it really blows my mind how this woman could have fallen through the cracks–and how no one- NO ONE noticed the multiple beatings this child took.  Body checks are part of caseworker visits, particularly for babies and small children. Fact.

Out of curiosity, I googled  “requirements to become a foster parent” and was taken directly to New York State’s Office of Children and Family Services (OCFs) website and read this. What struck me was this paragraph:

“Character: Each applicant for certification or approval must be required to provide the agency with the names of three persons who may be contacted for references. The agency must seek signed statements from these individuals attesting to the applicant’s moral character, mature judgment (emphasis added), ability to manage financial resources, and capacity for developing a meaningful relationship with children, or interview the individuals in person.”

AND THIS ONE:

“Criminal History Record Check

The agency must (emphasis added) send the fingerprints to the New York State Office of Children and Family Services (OCFS) where they are then sent to DCJS to conduct a search of its database and for DCJS to send the fingerprints to the FBI for a search of its database (emphasis added). The fingerprints are kept on file at DCJS and the certifying/approving agency would be notified should there be an arrest or conviction reported in the future to DCJS. The fingerprints are not maintained by the FBI.”

So, with all of these regulations I would really like to know how this 32 year old woman got through the cracks- because she certainly lacks in “moral character and mature judgment,”  especially if one believes that her 19 year old boyfriend is responsible for these atrocities. Did she forgot that she was responsible for this child, and I am not talking about her kid boyfriend? Did someone forget to send the proper documentation to the correct office? Did someone decide that her criminal record didn’t really mean anything? Did someone forget to make their required home visits, to inquire who was around the baby or to do body checks? What about physicals? Doctors? Oh, that neighbor who heard the child being massacred next door, stood by and did nothing?

Indifference. This is what this story reeks off. Indifference for the life of a child. Indifference towards the responsibility of being a foster parent, doing one’s job, and protecting those who can’t speak for themselves.  It’s disgusting.  Oh, to the 19 year old boyfriend, you can run and hide, but you’ll be found. Coward. To the foster mother, may God have mercy on your soul- because I sure don’t.

I practice law in New York City, one of the most diverse cities in the world. There are people here from every corner of our planet- and they bring with them traditions and customs that make up the wonderfully colorful fabric of our vibrant city.  Corporal punishment of children has always existed and if we talk to our parents or grandparents, we would definitely hear stories about being hit with a belt…or anything else a parent could get a hold of, as a means to discipline disobedient, disrespectful or otherwise unruly children.

When I started my career working in child welfare law, I repeatedly encountered parents or “persons legally responsible”  (adults who under the law are viewed as responsible for the care of a child) who had a neglect or abuse action filed against them for excessive corporal punishment.  Many of these adults, especially those who emigrated from another country,  did not understand (or quite possibly feigned a lack of understanding ) of what they did wrong.

An important caveat:  not every foreign born parent hits their kids, and it really depends on a lot of complicated factors (and I bet you could find plenty of scholarship on this issue). The most salient factor, in my opinion, is the lack of legislation on the books and enforced on behalf of children who are neglected or abused in many countries throughout the world.  If there are no laws, then how are parents to know their actions are wrong?  If there are laws but they are not enforced,  how can you stop a parent from doing what is wrong?  If there are no consequences, then where will it end?  In sum, people have to be educated in order to be and do better.  Period. And sadly, not everyone has the same access to education in this world.

Getting back to our mainland, and after a neglect or abuse petition is filed against them, adults learn rather quickly that the United States does not allow for this and that you can also be criminally charged– not to mention the possible removal of children from their parents’ care.

A second caveat: I am not excluding the American born parent…they are also guilty of using excessive force when disciplining their children and they should know better considering they grew up here.  However, when you grow up in a home where you were disciplined in that fashion or if you have an inability to control your temper, your native-born status is of no help to you. You suffer from a lack of education too.

My lawyer turned layman definition of  Excessive Corporal Punishment is,  any type of force used against a child that leaves bruising, breaks the skin, causes bleeding, a  fracture of a bone (or bones) or any other type of serious injury to a child. It can be caused by a hand, or possibly a hand balled into a fist, a belt, a wire, a piece of wood, or any appendage that is connected to your hand that should never be used to hit a child and was not created to do so.  Also,  feet and the human body can also cause injury defined as excessive corporal punishment-kicking, shoving, stomping,  body slamming…just to name a few.

An incident of excessive corporal punishment can happen once,  sporadically or it can be systematic (a routine occurrence) in the life of that child. I can’t tell you which one is worse. I don’t think one is “better” than the other.  All of them can leave physical and emotional scars on a child that last a lifetime.

What is permissible? Corporal punishment in the home. It is legal in all 50 states. With a bare hand. That leaves no marks or bruising. Every jurisdiction has  different laws so checking with your local child protection agency is a good idea.

Raising children is not easy.  It does not get any easier as they become older, and develop minds and mouths of their own. If you can’t cope, talk to someone.  If you need help with your children, ask for it.  If you feel like you are about to explode, take a breath and walk away. The alternative remedies offer a momentary release, but is not a long-term solution by any means.

“Spare the rod and spoil the child?” I like “Spare the rod and heal a child”  better.

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!