NYC Family Court judge denies Child Protective Services permission to enter hotline subject's home

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In a decision posted yesterday, Kings County Family Court Judge, Jeanette Ruiz, refused to grant the Administration for Children's services permission to enter the home of J. Smith. Children's Services had applied for a pre-petition ex-parte court order as part of an ongoing investigation which began when someone anonymously called the State Central Register hotline on J. Smith in July of 2009.

     The hotline report expressed concern about domestic violence in the home and alleged that the father had beat the mother to the point she needed stitches and had done so in the presence of the children. On various visits to the home, the Child Protective Services worker purportedly was denied entrance and when the mother and children did eventually meet with the CPS worker, the mother refused to give her any personal information. Furthermore, when the CPS worker visited the children at their summer camp, the children refused to cooperate with her.

     Following that the Smiths refused to return any phone calls from the CPS worker, acknowledge any of her letters or notes, and did not show up to a Child Safety Conference that the CPS worker set up for September 4, 2009

Quoting from the relevant portion of Family Court Law, Judge Ruiz laid out the grounds for New York City's Children Services to seek a court order to enter a family's home.

"Before a petition is filed and where there is probable cause to believe that an abused or neglected child may be found on the premises, child protective services may seek a court order based upon:

(1)a report of suspected abuse or maltreatment under title six of the social services law as well as any additional information that a child protective investigator has learned in the investigation; and

(2)the fact that the investigator has been denied access to the home of the child or children in order to evaluate the home environment ; and

(3)the fact that the investigator has advised the parent or other person legally responsible for the child or children that, when denied access to the home environment, the child protective investigator may consider seeking an immediate court order to gain access to the home environment without further notice to the parent or other person legally responsible."

Judge Ruiz said that the Administration for Children's Services had met the three criteria, however, she as the judge had to consider numerous factors in order to issue the order. Quoting again from Family Court Law, she stated:

"In determining if such order shall be made, the court shall consider all relevant information, including but not limited to:

(1) the nature and seriousness of the allegations made in the report;

(2) the age and vulnerability of the child or children;

(3) the potential harm to the child or children if a full investigation in not completed;

(4) the relationship of the source of the report to the family, including the source's ability to observe that which has been alleged; and

(5) the child protective or criminal history, if any, of the family and any other relevant information that the investigator has already obtained."

Following an analysis of the information included in the petition and gained from her inquiries, Judge Ruiz declared that the Administration for Family Services failed to meet the standard of probable cause in requesting entry into the family's home.

In buttressing her decision, Judge Ruiz declared:

"No objective basis has been presented to the Court to show the CPS worker's investigation cannot be completed because she needs to examine the home environment in order to make an adequate determination that the children are safe. Instead, on multiple occasions the CPS worker confirmed that the children were appropriately groomed and dressed and appeared well. They were attending summer camp and attending school with no reports or concerns raised by any of the mandated reporters who interacted with the children on an almost daily basis and who the CPS worker spoke to during the course of her investigation.

Moreover, the family's refusal to permit the CPS worker into the home cannot be the sole basis for an order of entry into the home. The intent of the amendments to FCA 1034 as well as the plain language of the statute is to provide child protective investigators the tools they need to complete investigations where there is reason to believe a child's life or health is in immediate danger, or where probable cause exists that a neglected or abused child may be found in the home and an assessment of the home environment is necessary to make an adequate determination that the child is safe. Here, petitioner's application does not involve children who have not been seen or located, or where there is any reason to believe their life of health are in immediate danger, or any reason offered for the necessity to assess the home environment to determine their safety."

Finally, Judge Ruiz declared that the petition was overly broad in asking to enter the house between 6:00am and 9:00pm and contravened the requirements of the law.

For more info: Read Judge Ruiz's decision.

Read more news and commentary by Dan Weaver on Child Protective Services and related topics.