Nicholson v. Scoppetta

Decision Date26 October 2004
PartiesSHARWLINE NICHOLSON, on Behalf of Herself, Her Infant Children, DESTINEE B. and Another, and All Others Similarly Situated, et al., Respondents, v. NICHOLAS SCOPPETTA, Individually and as Commissioner of Administration for Children's Services, et al., Appellants, et al., Defendants.
CourtNew York Court of Appeals Court of Appeals

Michael A. Cardozo, Corporation Counsel, New York City (Alan G. Krams, Leonard Koerner, Jonathan Pines, Martha A. Calhoun, Carolyn Wolpert and Kristin M. Helmers of counsel), for appellants.

Lansner & Kubitschek, New York City (David J. Lansner and Carolyn A. Kubitschek of counsel), and Sanctuary for Families, Center for Battered Women's Legal Services (Jill M. Zuccardy of counsel), for Subclass A respondents.

Legal Aid Society, Juvenile Rights Division, New York City (Judith Waksberg and Monica Drinane of counsel), and Lawyers For Children, Inc. (Karen Freedman of counsel), for Subclass B respondents.

Greenberg Traurig LLP, New York City (Alan Mansfield, Stephen L. Saxl, Hilary Ames and Jae J. Kim of counsel), for National Coalition Against Domestic Violence and others, amici curiae.

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Washington, D.C. (Michael C. Bisignano of counsel), for National Network to End Domestic Violence, Inc., and others, amici curiae.

Suzanne E. Tomkins, Buffalo, for New York State Coalition Against Domestic Violence and others, amici curiae. Arent Fox PLLC, Washington, D.C. (Evan Stolove, Janine Carlan, Jennifer Myron and Marcy L. Karin of counsel), for Pennsylvania Coalition Against Domestic Violence and others, amici curiae.

Deborah A. Widiss, New York City, Christina Brandt-Young and Jennifer K. Brown for Legal Momentum and others, amici curiae.

Piper Rudnick LLP, Easton, Maryland (Ray L. Earnest of

counsel), for Appellate Advocacy Network and others, amici curiae.

Yisroel Schulman, New York City, and Kim Susser for New York Legal Assistance Group and others, amici curiae.

Wilbur McReynolds, amicus curiae.

Legal Aid Society, Cleveland, Ohio (Alexandra M. Ruden of counsel), and Michael R. Smalz, Columbus, Ohio, for Ohio Domestic Violence Network and another, amici curiae.

Paul Chill, Hartford, Connecticut, for Joseph L. Woolston and others, amici curiae.

Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.

OPINION OF THE COURT

Chief Judge KAYE.

In this federal class action, the United States Court of Appeals for the Second Circuit has certified three questions centered on New York's statutory scheme for child protective proceedings. The action is brought on behalf of mothers and their children who were separated because the mother had suffered domestic violence, to which the children were exposed, and the children were for that reason deemed neglected by her.

In April 2000, Sharwline Nicholson, 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 (ACS)1. The action was later consolidated with similar complaints by Sharlene Tillet and Ekaete Udoh —the three named plaintiff mothers. Plaintiffs alleged that ACS, 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 defendants removed and detained children without probable cause and without due process of law. That policy, and its implementation — according to plaintiff mothers — constituted, among other wrongs, an unlawful interference with their liberty interest in the care and custody of their children in violation of the United States Constitution.

In August 2001, the United States District Court for the Eastern District of New York certified two subclasses: battered custodial parents (Subclass A), and their children (Subclass B) (Nicholson v Williams, 205 FRD 92, 95, 100 [ED NY 2001]). For each plaintiff, 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.

In January 2002, the District Court granted a preliminary injunction, concluding that the City "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" (In re Nicholson, 181 F Supp 2d 182, 188 [ED NY Jan. 20, 2002]; see also Nicholson v Williams, 203 F Supp 2d 153

[ED NY Mar. 18, 2002] [108-page elaboration of grounds for injunction]).

The court found that ACS 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; that ACS did so without ensuring that the mother had access to the services she needed, without a court order, and without returning these children promptly after being ordered to do so by the court;2 that ACS caseworkers and case managers lacked adequate training about domestic violence, and their practice was to separate mother and child when less harmful alternatives were available; that the agency's written policies offered contradictory guidance or no guidance at all on these issues; and that none of the reform plans submitted by ACS could reasonably have been expected to resolve the problems within the next year (203 F Supp 2d at 228-229).

The District Court concluded that ACS'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 (181 F Supp 2d at 185). The injunction, in relevant part, "prohibit[ed] ACS from carrying out ex parte removals `solely because the mother is the victim of domestic violence,' or from filing an Article Ten petition seeking removal on that basis" (Nicholson v Scoppetta, 344 F3d 154, 164 [2d Cir 2003] [internal citations omitted]).3

On appeal, the Second Circuit held that the District Court had not abused its discretion in concluding that ACS's practice of effecting removals based on a parent's failure to prevent his or her child from witnessing domestic violence against the parent amounted to a policy or custom of ACS, that in some circumstances the removals may raise serious questions of federal constitutional law, and that the alleged constitutional violations, if any, were at least plausibly attributable to the City (344 F3d at 165-167, 171-176)4. The Court hesitated, however, before reaching the constitutional questions, believing that resolution of uncertain issues of New York statutory law would avoid, or significantly modify, the substantial federal constitutional issues presented (id. at 176).

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 to us for resolution. We accepted certification (1 NY3d 538 [2003]), and now proceed to answer those questions.5

Certified Question No. 1: Neglect
"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?" (344 F3d at 176.)

We understand this question to ask whether a court reviewing an Article 10 petition may find a respondent parent responsible for neglect based on evidence of two facts only: that the parent has been the victim of domestic violence, and that the child has been exposed to that violence. That question must be answered in the negative. Plainly, more is required for a showing of neglect under New York law than the fact that a child was exposed to domestic abuse against the caretaker. Answering the question in the affirmative, moreover, would read an unacceptable presumption into the statute, contrary to its plain language.

Family Court Act § 1012 (f) is explicit in identifying the elements that must be shown to support a finding of neglect. As relevant here, it defines a "neglected child" to mean:

"a child less than eighteen years of age
"(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care . . .
"(B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court."

Thus, a party seeking to establish neglect must show, by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]), first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship. The drafters of Article 10 were "deeply concerned " that an imprecise definition of child neglect might result in "unwarranted state intervention into private family life" (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 1012 at...

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