What Qualifies as Child Abuse or Neglect in New York?
According to the Federal Child Abuse Prevention and Treatment Act (CAPTA), child abuse and neglect are defined as “at a minimum, any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm” (42 U.S.C. § 5106g). Under CAPTA, states must create laws that define child abuse and neglect as well. In New York, there are criminal and civil laws regarding child neglect.
According to New York’s Family Court Act, child abuse occurs when a parent or caregiver acts (or fails to act) results in physical or emotional harm, sexual abuse, or exploitation of a minor child. Under New York Penal Law § 260.10, people can be found guilty of endangering the welfare of a child if they:
- knowingly behave in a way that would lead to the physical, mental, or moral wellbeing of a child under 17 years of age;
- advise or allow a child to participate in activities or work that endanger their health or wellbeing; or
- failing or refusing to take measures to prevent a child under 18 years old, who has been legally placed in their charge, from being considered an "abused child," a "neglected
child," a "juvenile delinquent" or a "person in need of supervision," based on the definitions provided in articles of the Family Court Act.
According to the New York Family Court Act (FCT) § 1012, an abused child is defined as a child under 18 years old whose parent or legal guardian has:
- Inflicted (or allowed another person to inflict) physical injury to the child that results in the risk of death, long-term or serious disfiguration, long-term physical or emotional health impediments, or extended impairment of the function of bodily organs
- Created (or allowed another person to create) circumstances by which the child faces any of the aforementioned protracted physical, mental or emotional injuries
- Committed the criminal prostitution offense of promoting prostitution in the first, second, or third-degree or the sex trafficking of a child (see New York Penal Law § 230)
- Committed (or allowed another person to commit) a sexual offense against a child as outlined in New York Penal Law § 130
- Committed incest in the first, second, or third-degree (see New York Penal Law § 255)
- Permitted their child to engage in the criminal acts or conduct as defined in New York Penal Law § 263
- Persuaded or encouraged (or allows an offense to be committed against) the child that would render the child a victim or sex (or another severe form of) trafficking as defined in 22 U.S.C. 7102 or any subsequent federal laws
A neglected child is considered a child under 18 years old whose mental, physical, or emotional health has been impeded or is in danger of impediment because of their parent or legal guardian’s failure to provide them a minimum degree of care, which involves providing the child with adequate:
- Food, clothing, shelter, and educational and medical care whether financially able to do so themselves or through financial (or other reasonable forms of) aid
- Supervision and guardianship
A neglected child is also defined as a child who has been abandoned by their parents or legal guardians (see New York Social Services Law § 384-B).
As defined in New York FCT § 301.2, a juvenile delinquent is a person:
- Between ages 7 and 18 who has committed an act that would be considered a criminal offense if committed by an adult.
- Between 16 and 18 who has committed an act that would be a violation of the terms of New York Penal Law §10.00.
After December 29, 2022, the age of a juvenile delinquent will raise from 7 to 12 years old; for more information on this change and the response program for children under twelve, learn more about Senate Bill S4051A.
A person in need of supervision is a child under 18 years old who:
- Does not attend school
- Behaves incorrigibly, uncontrollably, or continuously disobediently
- Cannot be controlled by their parent, guardian, or lawful authority
- Is suspected of drug abuse
- Requires supervision or treatment
Examples of Child Neglect
Child neglect can include but is not limited to:
- Physical abuse, e.g. shaking a baby violently because they won’t stop crying or sending your child to bed without dinner repeatedly as a form of punishment
- Physical neglect (also referred to as inadequate guardianship), e.g. not having the means to feed or clothe your children regularly or leaving your toddler home alone while you run errands
- Educational neglect, e.g. frequently failing to take your child to or ensure they make it to school or opting to homeschool your child without having access to home school registration materials and/or curriculum
- Medical neglect, e.g. not getting your child glasses even though they need a prescription or failing to take your child to the doctor after they’ve been injured/need medical attention
- Sexual abuse, e.g. incest, rape, fondling, intercourse, sodomy, and/or any other sexual acts with an underaged child who cannot consent
What to Expect After Child Neglect Is Reported
After child neglect or maltreatment is reported, the Administration for Children’s Services (ACS) is required to investigate. The local social service department’s Child Protective Services (CPS) unit will begin an investigation within 24 hours. This investigation will include a(n):
- Safety evaluation of the child named in the report as well as any other children living in the home
- Determination of the risk to any children who will remain in the home
During the investigation, CPS will:
- Contact the person who the report to gather more information
- Make an unannounced visit to your home within 24 to 48 hours of the report
- Talk with all the adults that live in the reported home
- Give you a Notice of Existence that notifies you that you are being investigated
- Investigate your home to ensure it is hazard-free and has proper food/living conditions
- Contact your child’s school, family members, friends, and others who may be involved in your child’s life
If it is determined that you need services or help, ACS will make a referral for you to receive those services. In other cases, to protect the child from future abuse or maltreatment, CPS will take a child into protective custody.
CPS will decide within 60 days that the report is “indicated” or “unfounded.” If the report is indicated, that means:
- The claim that a child has been abused or neglected has been substantiated with enough evidence.
- You will receive a Notice of Indication that notifies you that your claim is indicated. The notice will also explain your right to ask for a decision review/appeal.
- CPS may begin a family court case by filing a neglect petition against you. Your child(ren) will be removed from the home; whether this is permanently or temporarily will depend on the court’s findings and decisions.
If the report is unfounded, that means:
- CPS did not find evidence to substantiate the claim of child abuse or neglect.
- You will receive a letter from the New York State Central Register (SCR) that notifies you that the report is unfounded.
- You may still be referred to a service (community-based or preventative) that can help support you and your family.
Contact Our Attorneys Today
At Jason M. Barbara & Associates, P.C., our attorneys are prepared to defend clients who are facing allegations of:
- Sexual abuse
- Education neglect
- Medical neglect
- Emotional neglect
- Physical neglect
- Inadequate guardianship
As each case is unique, we offer our clients individualized legal defense strategies. It is important that you are allowed to share your side of the story, which is why you should hire a reliable attorney who can fight for you and your rights.
If your child has been removed from your home or you’ve recently been accused of child neglect, you can trust our attorneys to work to keep your family together. For a free case consultation, schedule an appointment with our team online or via telephone (516) 406-8381.
