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Family Court Act § 1034

A Kings Domestic Violence Lawyer said that, New York City Administration for Children’s Services (hereinafter petitioner) filed an application for a prepetition ex parte court order seeking access to enter the home of a family subject to an ongoing child protective investigation that was commenced by a report to the State Central Registry (hereinafter SCR) on July 13, 2009. The SCR report concerned allegations of possible domestic violence occurring in the presence of the children. Brought pursuant to Family Court Act § 1034, titled “Power to order investigations,” the instant application pertains to the family consisting of the parents and their five children, ages 12, 10, 8, 7 and 3. Petitioner’s application for an order of entry into their home set forth: A report of suspected child abuse or maltreatment was made to SCR on July 13, 2009. The report stated that there was concern about ongoing domestic violence in the home involving the father assaulting his wife with the most recent incident occurring several days earlier when the father beat his wife so severely that she required stitches to her forehead. The SCR report set forth the belief that this altercation occurred in the presence of all of the children.

A Kings Criminal Lawyer said that, on the same date the report was made and again on July 15, 2009, the CPS worker assigned to investigate the SCR report conducted home visits to the case address and left written notes requesting that the parents contact her. The mother and her five children went to petitioner’s field office and met with the CPS worker. She, however, “refused to provide any personal information” and would not allow the CPS worker to speak to the children alone or in her presence; the child also refused to speak to the CPS worker. When the CPS worker asked her if she would agree to schedule an appointment to permit her to conduct a visit to the home, she replied no because she did not know her. The CPS worker continued to make several more attempts to gain entry into the Smith home through telephone contact and subsequent unannounced home visits. On July 28, 2009, the CPS worker sent a letter advising the parents of their need to cooperate with her investigation.

On August 4, 2009, the CPS worker visited the summer camp, which the four oldest children attended, in an effort to interview them; all of the children refused to speak to her. Thereafter, the CPS worker made several more attempts to visit the home and to contact the parents by telephone with no success. On August 24, 2009, the CPS worker made another unannounced home visit and again left a written note for the parents asking them to contact her. On September 2, 2009, the CPS worker made an unannounced home visit and while Mrs. Smith answered the door she did not permit the CPS worker into the home stating, “She was not prepared to receive company.” The CPS worker spoke to Mrs. Smith in the hallway and asked her to attend a family conference at her office the next day, September 3, 2009, at 10:00 A.M. Although she agreed to attend the meeting neither she nor her husband did so.

On September 3, 2009, after the parents failed to attend the family meeting, the CPS worker again conducted an unannounced home visit and left the parents another letter informing them that a child safety conference would be held the next day, September 4, 2009, at 2:30 P.M. The letter advised the parents that if they failed to attend the conference the matter would be referred to Family Court. The parents did not attend the child safety conference on September 4, 2009, nor did they call the CPS worker to provide any excuse for their absence.
A Kings Order of Protection Lawyer said that, petitioner’s application also sets forth that the family is known to Kings County Family Court under docket. A finding of neglect was entered against each parent as to their children on September 14, 2006. Further, a final order of protection, prohibiting the use of corporal punishments as to the children, was issued against the parents for a one-year period. The application concludes that, given the SCR report and the steps taken by the CPS worker to conduct the investigation, probable cause exists to believe that an abused or neglected child or children may be found at the premises where the Smith family resides and that an order permitting the CPS worker to enter the home between the hours of 6:00 A.M. and 9:00 P.M. in order to evaluate the home environment of the children should be issued.

A Kings Sex Lawyer said that, this court initially heard petitioner’s application on the date it was filed, September 8, 2009. Following a preliminary review of the application, the court noted that it failed to specify who the source of the report to the SCR. was when the court inquired about this missing information, the court learned that the allegations were made to the SCR by an anonymous source. The matter was then adjourned to permit petitioner additional time to personally serve the parents with its application and to allow the court the opportunity to review the family’s prior neglect case.

The issue in this case is whether the application petitioner has filed meets the requirements of Family Court Act § 1034 as amended by the State Legislature in 2006.

To be continued….

Petitioner’s application for a prepetition ex parte court order is brought under a recently enacted subdivision to Family Court Act § 1034. In 2006, the New York State Legislature amended Family Court Act § 1034 in response to several high profile and tragic child abuse fatalities in order to provide child protective investigators with the tools to properly investigate child abuse/ neglect cases where parents or caregivers refuse to provide child protective investigators access to the child or children or to the home sufficient to make an adequate determination as to the children’s safety. As amended, Family Court Act § 1034 grants the Family Court authority to issue prepetition ex parte court orders in ongoing child protective investigations, upon the application of a child protective agency under specifically defined circumstances, to help protect children who might be in immediate danger.

Hence, Family Court Act § 1034 (2) (a) (i) grants the court authority to issue a prepetition ex parte court order when an investigator has been unable to locate a child named in a report or other children in the household, or has been denied access to the child or children in the household, such that they are unable to determine whether the child or children are safe. Under these circumstances and upon a showing of “reasonable suspicion” that a child’s life or children’s lives may be in danger, the court may issue an order directing a parent or caretaker to produce the child or children to a designated location to be interviewed and for observation of their condition outside the presence of the parent or caretaker.

Similarly, Family Court Act § 1034 (2) (b) (i) permits a child protective agency to seek a prepetition ex parte court order to gain access to the home environment during the course of an investigation upon a showing that “probable cause” exists that an abused or neglected child may be found on the premises. In both instances, the investigator is required to inform the parent or caregiver that if they deny the investigator sufficient access to the child or children, or to the home, the investigator may seek an immediate court order for access without further notice.

Based upon these recent amendments to Family Court Act § 1034, the issue before this court is whether petitioner’s application for a prepetition ex parte court order to gain access to the Smith home in the present case properly falls within the ambit of Family Court Act § 1034 (2) (b) (i) and (ii). The court notes that it found no reported cases to date construing the amendments to Family Court Act § 1034. Thus, the court considers this case one of first impression. As such, the court must determine if petitioner’s application establishes “probable cause” that abused or neglected children may be found in the Smith home where petitioner has been denied entry. In so doing, the court must find that the denial of entry to the home renders the CPS worker unable to make an adequate safety determination as to the Smith children.

In this case, the petitioner’s application meets the three conditions set forth in Family Court Act § 1034 (2) (b) (i) (A), (B) and (C). Additionally, Family Court Act § 1034 (2) (d) outlines specific factors the court must consider before it issues an order authorizing entry into the home of a child or children named in a report. Family Court Act § 1034 (2) (d) sets forth: “In determining if such orders shall be made, the court shall consider all relevant information, including but not limited to: “(i) the nature and seriousness of the allegations made in the report; “(ii) the age and vulnerability of the child or children; “(iii) the potential harm to the child or children if a full investigation is not completed; “(iv) the relationship of the source of the report to the family, including the source’s ability to observe that which has been alleged; and “(v) the child protective or criminal history, if any, of the family and any other relevant information that the investigation has already obtained.”

Though the legislative amendments to Family Court Act § 1034 were intended to address the circumstance where a parent or caregiver refuses to provide the child protective investigator access to a child or children who are the subject of a report, or entry into the home where an abused or neglected child may be found, the scope of Family Court Act § 1034 is much narrower than petitioner’s application suggests. The court reads the scope of Family Court Act § 1034 as balancing the competing rights of parents to be free from unreasonable State intrusion into the integrity of their family against the State interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves. In providing that a child protective agency must seek a court order for access to enter a home in an ongoing child protective investigation, the Legislature has endorsed the principle that judicial authorization makes a fundamental contribution to proper resolution of the tension among the interests of the child, the parents, and the State.
Family Court Act § 1034 (2) (b) (i) and (ii) provide that where a child has not been seen or located and there is reasonable suspicion that her life or health is in immediate danger, or where there is probable cause that she may be found in the home, and an assessment of the home environment is necessary to make a determination of whether the child is safe, a child protective agency can seek a prepetition ex parte court order to override the actions of the parent or caretaker in denying the child protective investigator access to the child or to the home.

The court also notes Family Court Act § 1034 (2) (c) explicitly sets forth that the procedure for granting an order authorizing a child protective investigator to enter the home of a family under investigation shall be the same as the procedure for search warrants under Criminal Procedure Law. The court reads the inclusion of this requirement as further evidence of the legislative intent to strike a balance among the rights and interests of parents, children and the State. In both instances, the burden of showing that probable cause exists is placed on the State. Furthermore, though probable cause is a flexible term, which by definition deals with probabilities, in the context of an application for a prepetition ex parte court order for access to enter a home in an ongoing child protective investigation, the court must be satisfied that reasonably trustworthy information has been presented to form an objective basis to believe an abused or neglected child will be found on the premises.

Therefore, the instant application for a prepetition ex parte court order seeking entry into the home of the Smith family is required to contain allegations of fact supporting that probable cause exists to believe that an abused child or neglected child or children who are the subject of an SCR report, and to whom petitioner has been denied access, may be found on the premises. Here, however, the application is insufficient and fails to meet the probable cause standard the statute requires for the issuance of an order of entry. Arrest was coming.

The application filed with this court was based on a report to the SCR of “possible domestic violence in the presence of the children.” The application did not, however, include that the SCR report had been made by an anonymous source. The court only learned of this information when it inquired about the identity of the source. This relevant information was not included in petitioner’s application even though the statute requires the court to consider the relationship of the source of the report to the family as well as the ability of the source to observe the allegations contained in the SCR report.

Based on the foregoing, the court finds that petitioner’s application fails to satisfy the requirements set forth in Family Court Act § 1034 for the issuance of a court order of entry into a home subject to an ongoing child protective investigation.

Accordingly, the application is denied in its entirety.

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