Litigation Practice

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BFDP’s litigation practice includes different types of hearings:

1) Emergency hearings: When ACS requests that children be removed from their home, the parent has a right to an immediate emergency hearing to determine whether the removal is necessary. In some cases the hearing will be held immediately and in other cases within 3 days of our request. In a short period of time, we must review the case record, prepare direct examinations of the client and other witnesses, prepare cross examination of the case worker, and gather necessary documents. At these hearings, the burden is on ACS to prove that the children would be at imminent risk if they remained in or returned to the home. The Court of Appeals has also held in Nicholson vs. Scoppetta that the issue of imminent risk must be balanced against the harm of removing children from their parents. The court must also consider whether measures such as social services or an order of protection could mitigate any risk, allowing the child to remain safely in the home. During BFDP’s first four years, attorneys litigated over 800 emergency hearings and as a result of these hearings, over 500 children went home and 300 children remained at home.

2) Fact-finding trials: In each of our cases, there must be a determination as to whether the factual allegations in the petition regarding the parent’s actions constitute neglect under the Family Court Act and applicable case law. Under the law, ACS must prove a direct link between the parents’ actions or omissions and actual harm to the children. Although most of our cases settle, some go to trial on the issue of neglect. For example, the primary issue at trial could be whether a parent’s mental health caused actual harm or risk of harm to the children or whether the parent had any control over a teenage child’s failure to attend school. In some cases, there are strongly contested issues of fact, which may require the opinion of an expert (for example, whether an injury was accidental). In other cases, the paramount issue may be legal, such as whether the actions of a pregnant woman regarding her unborn child constitute neglect. In all cases, trial preparation requires completing discovery and reviewing documents, including case records, medical records, mental health records, educational records, and/or police records, as well as preparing trial memos, developing direct and cross examinations and preparing witnesses.

3) Dispositional/permanency hearings: Dispositional hearings occur after a finding of neglect is made. The purpose of the hearing is to determine the status of the children and what services the parent needs to complete in order to get the children home. When children are placed in foster care, permanency hearings must be held every six months. At the permanency hearing, the court determines the permanency goal for the children and decides whether there is a need for continued foster care placement. Both hearings are informal and hearsay is admissible, but the hearings often involve the introduction of documents, cross examination of case workers, and direct testimony of our client or other witnesses.

Motion Practice: One of the major changes that BFDP as an institutional provider has made in Family Court practice is to routinely file motions in our cases. In each case, we make an assessment of whether we can seek an order of dismissal through a motion to dismiss for failure to state a claim or a motion for summary judgment. In addition, because the next scheduled court date is often very far away, we regularly file motions for increased visitation or seeking the return of children. We also file contempt motions against ACS for failing to follow orders of the Court. We strongly encourage motion practice as a critical component of effective advocacy on behalf of our clients.

Substantive Legal Issues: Neglect proceedings in New York Family Court are governed by Article 10 of the Family Court Act, which contains the relevant procedures and sets out the powers of the Family Court. In addition, there is a complex federal and state statutory and regulatory scheme which governs the provision of services by ACS to keep families together and prevent removal of children, as well as parental involvement in service planning and visitation.

Our practice also relies on the substantive due process guarantee contained in the U.S. constitution to defend our clients’ liberty interest in family integrity, and to argue against unnecessary government interference in their child-rearing decisions and in favor of the least restrictive alternative consistent with the children’s safety.

The primary issue for most of our clients is preserving or regaining custody of their children. However, even after children have been removed, we continue advocacy to preserve our clients’ rights to participate meaningfully in their children’s lives. We regularly advocate for our clients’ rights to be involved in decision-making regarding their children’s medical treatment and care, including whether or not they will be prescribed psychotropic medication, and their children’s education, including the development of special education service plans. We frequently advocate for increased visitation between parents and children who are not in their care, and for visitation arrangements that maximize the quality, length and frequency and minimize the restrictiveness of visitation.

Relying on statutory and constitutional law, we regularly challenge the City’s attempts to require our clients to submit to mental health examinations and drug tests when there is no evidence of mental health issues or drug use. We also challenge court orders against non-respondent parents who have not even been charged with neglect on statutory and constitutional grounds.