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Family Court Act § 1034… 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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