What are neglect and/or abuse fact-finding hearings in family court? 

Tips for navigating a neglect and/or abuse fact-finding hearing

In Family Court, you can be accused of child neglect or abuse or both. Cases generally take place in three parts. Each part may have a “hearing.” A hearing is another word for “trial.” There will be other times you need to be in court for a neglect or abuse case too. These are called “conferences.” Conferences are used to make sure everyone has what they need to be ready for a hearing or to try to settle the case. There may also be “motions.” Motions are made to ask the judge to make someone do something or stop doing something during a case.

Hearings include:

• A “1028” or a “1027” hearing which happens only if ACS takes the children (“1028”) or if ACS wants to take the children (“1027”). ACS is New York City’s
  Administration for Children’s Services. It is the local child protective service in New
  York City. At the hearing, a Family Court judge decides if the family can remain together while the case is ongoing. ACS will also start cases even if it doesn’t want to take children away. The first time you’re in court about the case is called an “arraignment” or “initial appearance.” ACS may ask the judge permission to watch what the family does for some time to make sure the children are okay (“supervise” or “supervision”) or ACS may ask the judge to make an order that the family take services so that the children are safe. For example, a drug treatment for a parent or counseling for a child. You and your lawyer will decide to agree or to ask for a hearing about whether ACS should get what it asks for. If you cannot afford a lawyer, the judge will give you a free one.
• A “fact-finding hearing” during which a Family Court judge decides if child neglect or abuse or both happened and if you caused it or allowed it to happen.
• A “dispositional hearing” or a “dispositional and permanency hearing” which only happens if the judge decided that neglect or abuse occurred. At the dispositional hearing, the judge decides where and under what conditions the children will live because of the neglect or abuse. You do not have to be a parent to be accused of neglect or abuse. If you have repeated contact with a child and regularly do things parents usually do for a child then you are a “person legally responsible” for a child. A person legally responsible for a child can be accused of child neglect or abuse. If you are accused of neglect or abuse or both (a “respondent”), you have the right to a lawyer in the case. If you can’t afford a lawyer, the judge must give you a free lawyer. If you are the parent of a child who may have been neglected or abused, even if you are not accused, you can also get a free lawyer for the case if you cannot afford one. To try to find a lawyer yourself, call the office for your area:
  • Brooklyn Defender Services: (646) 974-9343;
  • Bronx Defenders: (347) 778-1266;
  • Center for Family Representation: (212) 691-0950 for most of Manhattan, or Queens, and some of the Bronx;
  • Neighborhood Defender Services in Harlem (212) 876-5500.
• You can also try, even if you are not the respondent:
  • Legal Services NYC: (917) 661-4500, or
  • the New York City Bar Association: (212) 626-7383, or
  • The Bronx Bar Association: (718) 293-5600, for a referral.
    

Your child will also have a lawyer.

The Fact-Finding Hearing

The Hearing: If ACS accuses you of neglect or abuse, you are entitled to a trial where ACS must prove that. ACS must show the judge that you or another person did what ACS claims you or they did. ACS must also show what was done or not done meets the legal definition of neglect and/or abuse. ACS can also ask the judge to accept that something else they proved is neglect or abuse even if it is not what they accused you of first.

Evidence: Laws and rules of evidence are not as strict in neglect and abuse cases as they are in other family or criminal cases. They may seem unfair. For example, certain hearsay is allowed, most of your confidentiality protections are lost, and you do not have the same right against self-incrimination as in criminal cases. There is no jury in Family Court. The judge decides what information to believe and how the law applies to your case.

Settlements: Sometimes people decide they would rather settle their cases than go to trial. A settlement is different from winning the case. That is because you will usually continue to be supervised by the court, ACS, and/or a foster care agency. Some settlements involve admitting to neglect or abuse. An admission ca have serious consequences for you in other ways than just for this case. Ask your lawyer about this.

A judge can make a finding against you only if they believe that a fair preponderance of the evidence proves there was, legally, neglect and/or abuse and that you are responsible. A fair preponderance of the evidence means it is more likely than not that things happened the way ACS claims. ACS does not have to prove its case “beyond a reasonable doubt” as used in a criminal case.

If the judge finds neglect and/or abuse

If the judge finds that you neglected and/or abused the children, it does not mean the children will be taken from you. Or that they will never be returned to you. Usually, ACS and any foster care agency involved must make “reasonable efforts” to “reunite” the family. This means the agencies must give, find, or arrange for help so that you and the children can stay or get back together (called “preventive services”).

When ACS believes a case is extreme, it might ask the judge TO TERMINATE
REASONABLE EFFORTS. This means ACS and foster care agencies do not have to help you stay or get back together with the children. If the judge agrees with ACS, the results for the family can be harsh. Therefore, ACS must ask for this in writing (make a “motion”) AND give your lawyer a copy (or you if you do not have a lawyer). The judge can decide to terminate reasonable efforts if:

• Your parental rights to any of your other children were terminated without your consent, OR
• You were convicted of murder or voluntary manslaughter of any of your other children, OR
• You were convicted of attempt, solicitation, facilitation, or conspiracy to kill any of your children, OR
• You were convicted of serious assault that caused a serious physical injury to any of your children AND
  • that may or may not include anyone else also getting a serious physical injury OR
  • that caused a physical injury to certain government workers or other workers whose job is to help other people or to do essential work, OR
  • that when you were 18 years old or older, you were convicted of a less serious assault on any child who was younger than 11 years old and less than 10 years ago you were convicted of the same thing.
• The conviction or a conviction like them can be from any place. OR
• A Family Court judge decided, or might decide, that there are “aggravated circumstances” in your case. What aggravated circumstances means is explained later in this article, near “What to Do if You Lose a Fact-Finding Hearing.”

If the judge decides you are not entitled to reasonable efforts, a “PERMANENCY
HEARING” must be scheduled within 30 days. At this hearing, the judge must decide what the permanent outcome for each of your children should be. Some outcomes could be:

• return to you or the child’s other parent;
• freeing the child for adoption, even without your consent (to do this, a
  separate “termination of parental rights” case must be started);
• living permanently with a legal guardian who might be related to the child;
• permanent placement with a fit and willing relative (probably in a custody-like arrangement, but, maybe, in a long-term foster care arrangement).

Once a judge decides to terminate reasonable efforts, ACS can start a Termination of Parental Rights case, even if the judge did not order ACS to start that type of
case. ACS must have a reason that the law allows, other than the order to terminate reasonable efforts, to start the termination of parental rights case.

More about abuse findings

If the judge decides that you, or someone you allowed, abused your child(ren) in
such a way that they:

• were physically harmed very seriously or that they could have been harmed
  very seriously or could have died, OR
• were seriously sexually abused. This must be serious enough that, if it were a
  criminal case, you or another adult could be found guilty of “felony sexual
  abuse.”

The judge’s fact-finding order must say that. The judge’s order must say that because you can be accused of “repeated abuse” at another time.

Because a finding of repeated abuse has very serious consequences, ACS must clearly warn you in its legal papers listing the accusations against you that they are charging you with repeated abuse. This legal paper is called the “petition.” It may be many pages. The petition must also say that if the judge makes this finding, ACS can immediately start a separate Termination of Parental Rights case against you. The first time you are in court on the abuse case, the judge must ask ACS if it is claiming repeated abuse, and if it will try to prove it by clear and convincing evidence. If ACS says yes, the judge must tell you so. All of these same things must happen if you are accused of “severe abuse.”

“REPEATED ABUSE” can be found if:

• ACS is now accusing you of abuse because you intended to seriously harm any of your children OR
• you are accused of so seriously sexually abusing the children, that you could
  be convicted of “felony sexual abuse” in a criminal case, OR
• you are accused that you knew about and let such sexual abuse happen by
  another person AND
• there was a court finding of abuse against you less than 5 years ago for any
  of the same reasons or you were convicted in a criminal case of sexual abuse against any of your children or a child you are or were legally responsible for less
  than 5 years ago AND
• ACS and/or the foster care agency gave your family services, but these did
  not help; OR
• a judge previously said they did not have to give services.

“SEVERE ABUSE” can be found if:

• a judge decides you meant to (“intentionally”) or were so reckless that you caused, or could have caused, the child or children very serious physical injury (for example, burns). Allowing this to happen is called “evincing a depraved indifference to human life”; OR
• the judge finds you seriously sexually abused the child or children. This
  must be serious enough that, if it were a criminal case, you could be found
  guilty of “felony sexual abuse”; OR
• that you knew about, and let such sexual abuse happen; OR
• you were convicted of murder or manslaughter of any of your other children or a child you were legally responsible for or of any of these children’s other parents UNLESS that other parent abused you and that was the reason you killed her, him, or them, at least in part, OR
• you were convicted of attempt to commit any of the crimes listed here OR
• you were convicted of attempt, solicitation, facilitation, or conspiracy to kill
  any of your children, OR
  • you were convicted of serious assault that caused a serious physical injury
    to any of your children and that may or may not include anyone else also getting a serious physical injury, or
  • that caused a physical injury to certain government workers or other workers whose job is to help other people or to do essential work, or
  • that when you were 18 years old or older, you were convicted of a
    less serious assault on any child who was younger than 11 years old
    and less than 10 years ago you were convicted of the same thing; OR
  • you were convicted of attempt to commit any of these crimes and the person you intended to hurt was one of your children or a child you were a person legally responsible for. The conviction or a conviction like them can be from any place; AND
• ACS and/or the foster care agency gave your family services, but these did not help OR a judge previously said that they did not have to give services.

If the judge finds SEVERE OR REPEATED ABUSE, the order must ALSO say:

• She or he decided that you repeatedly and/or severely abused the child or children;
• how you did so;
• whether the finding is based upon “clear and convincing evidence.”
  • Clear and convincing evidence is a higher standard than the usual “fair
    preponderance of the evidence,” but it is not as high as “beyond a
    reasonable doubt.”

If the judge finds severe or repeated abuse, ACS can ask the judge to order the
termination of reasonable efforts. Termination of reasonable efforts was
explained higher up in this article.

AGGRAVATED CIRCUMSTANCES can cause the termination of reasonable efforts. Aggravated circumstances are if a Family Court judge decided, or might decide, that
you have:

• repeatedly abused the children OR
• severely abused the children OR
• abused your child now and that child was in foster care less than 5 years ago because a judge found he or she had been neglected and you were one of the people accused of neglect then, OR
• by clear and convincing evidence, completely failed or refused to take services or do other things so that your child or children can return to you
  • and the child has been in foster care for 6 months or more since being removed from you
  • and a judge told you that if you say under oath in the courtroom that you do not want services or that you will not do what is needed for the child to come home the agencies do not have to give you services to reunite the family
  • UNLESS you are not doing the services or things to get the child back because you do not have childcare for your other children or there is a conflict with your work schedule, or you do not have a way to get to the service OR
• safely, but completely abandoned your baby when the baby was no more than 5 days old (for example, leaving the baby in the hospital, or at a fire or police station, or with an agency that cares for children, and not contacting them about the baby or trying to get the baby back).

If you lose a fact-finding hearing

You can “appeal” if you disagree with the judge’s decision that you neglected or abused a child. An appeal is a request to a higher court to review the Family Court judge’s order. You must start an appeal within 30 days of the date of the judge’s fact-finding order or within 30 days of the order the judge makes at the end of the dispositional hearing. You appeal in the Appellate Division of Supreme Court (NYS) which covers the Family Court where your case was heard. If you are interested in an appeal, talk to your Family Court lawyer about it. They will give you their best strategy for appealing. If you ask the lawyer who represented you in Family Court to start the appeal, they will. They do not have to represent you for the whole appeal.

If you win a fact-finding hearing

If the judge decides no neglect or abuse happened after a fact-finding hearing, the case ends. If the children were taken, they must be returned to who they were taken from. The judge can also decide that a person accused of neglect and/or abuse did that, but not another accused person. If that happens, a dispositional hearing will be scheduled. Even if you win the fact-finding hearing, a record against you probably still exists in the State Central Register of Child Abuse and Maltreatment (SCR) about those allegations. That record can be used against you if you try to get certain jobs, or care for someone else’s children. You must write to the SCR and ask them to amend and seal the record. It is best to include a copy of the order dismissing the case and a copy of the petition(s) with your letter. You can write in a language other than English if that is easier for you. SCR will automatically seal the record. If you do not write, SCR will not seal the report. To try to have a report amended and sealed, you must write to the SCR at:

NYS Office of Children and Family Services
State Central Register of Child Abuse and Maltreatment
Appeals Processing Team
P.O. Box 4480
Albany, New York 12204-0480

Immediate filing of termination of parental rights

A separate termination of parental rights case against you can be started (court papers are filed and served on you) immediately If the judge finds:

• Severe abuse
• Repeated abuse
• Abandonment
• Reasonable efforts should be terminated
• You committed the crimes listed above.

The trial in the termination case, however, may not start for several months. It depends on the legal reason used to start the termination of rights case. Some legal reasons for a termination of parental rights case must have an amount of time pass before they can be started.

Even though ACS and/or the foster care agency can start a termination of parental rights case, they do not have to do so if:

• the child(ren) are being taken care of by relatives
• the agencies are not providing you with the services that their written plan lists as necessary for you to be reunited with your children or that a judge has ordered for you and no order to terminate reasonable efforts exists
• you are incarcerated, in immigration detention or removal proceedings, or in a residential drug treatment program and you maintain a meaningful role in your children’s lives by remaining in contact with the children (letters, telephone calls, e-mail, texts, social media, other forms of communication, in-person visits) and everyone else involved in your case and you work as best as you can to do the things that the foster care agency and court require you to do to reunite or remain involved with your children’s lives, such as using drug abuse or mental health or other prison programs, or
• there is another documented, especially important (‘compelling”) reason not to file the termination of parental rights case.