Nicholson v. Scoppetta

820 N.E.2d. 840 (2004)


P, on behalf of herself and her two children, brought an action pursuant to 42 USC § 1983, against the New York City Administration for Children's Services (D). The action was later consolidated with similar complaints. Ps contend that Ds as a matter of policy, removed children from mothers who were victims of domestic violence because, as victims, they 'engaged in domestic violence' and that Ds removed and detained children without probable cause and without due process of law. The court certified two subclasses: battered custodial parents (Subclass A), and their children (Subclass B). At least one ground for removal was that the custodial mother had been assaulted by an intimate partner and failed to protect the child or children from exposure to that domestic violence. The District Court granted a preliminary injunction, concluding that D 'may not penalize a mother, not otherwise unfit, who is battered by her partner, by separating her from her children; nor may children be separated from the mother, in effect visiting upon them the sins of their mother's batterer.' The court found that D unnecessarily, routinely charged mothers with neglect and removed their children where the mothers--who had engaged in no violence themselves--had been the victims of domestic violence. The District Court concluded that D's practices and policies violated both the substantive due process rights of mothers and children not to be separated by the government unless the parent is unfit to care for the child and their procedural due process rights. On appeal, given the strong preference for avoiding unnecessary constitutional adjudication, the importance of child protection to New York State and the integral part New York courts play in the removal process, the Second Circuit, by three certified questions, chose to put the open state statutory law issues for resolution. 'Does the definition of a 'neglected child' under N.Y. Family Ct. Act § 1012(f), (h) include instances in which the sole allegation of neglect is that the parent or other person legally responsible for the child's care allows the child to witness domestic abuse against the caretaker? 'Can the injury or possible injury, if any, that results to a child who has witnessed domestic abuse against a parent or other caretaker constitute 'danger' or 'risk' to the child's 'life or health,' as those terms are defined in the N.Y. Family Ct. Act §§ 1022, 1024, 1026-1028?' 'Does the fact that the child witnessed such abuse suffice to demonstrate that 'removal is necessary,' or that 'removal was in the child's best interests,' or must the child protective agency offer additional, particularized evidence to justify removal?'