New York Divorce Attorney Blog
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Every county in New York maintains a Child Protective Services (CPS) agency to investigate suspected child abuse and neglect. The New York Office of Children and Family Services (OCFS) receives reports from legally-mandated reporters like doctors, nurses, and teachers, as well as the general public, and refers those reports to the CPS agency in the appropriate county. If local CPS concludes that abuse or neglect has occurred, it can commence an action to claim guardianship of a child. Last year, a court in Manhattan considered a petition by a parent to overturn a finding of “inadequate guardianship” by an administrative law judge (ALJ). Applying procedural rules set forth in Article 78 of the New York Civil Practice Law & Rules (CPLR), the court transferred the case to the Appellate Division.
According to Chapter 14, section E of the New York State CPS Handbook, “inadequate guardianship” occurs when a parent or guardian “fails to meet a minimum standard of care for the child within commonly accepted societal norms,” and this failure leads to “actual physical or developmental harm…or imminent danger of such harm.” Examples provided by the handbook include failing to know a child’s whereabouts outside of the home for long periods of time, substantially limiting a child’s activities, or “[e]xposing…the child to…illegal and/or immoral acts.”
The 2018 case before the New York County Supreme Court involved a petition under Article 78 of the CPLR. This article applies to proceedings referred to in other jurisdictions as writs of mandamus, in which a petitioner seeks to compel a government entity to correct an erroneous action. The statute identifies five questions a petitioner may raise, including whether a decision made after an evidentiary hearing was “supported by substantial evidence.” If a petitioner raises a question of “substantial evidence,” § 7804(g) directs the court to “dispose of such other objections as could terminate the proceeding.” If it finds that none of those issues have merit, the court must transfer the “substantial evidence” question to the Appellate Division.
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