Lawyers Manual - Unified Court System

82 Jill M. Zuccardy
mother still may not be found neglectful unless it is shown that she failed to
exercise a minimum degree of care and that there is a causal link between her
actions or inactions and any proven harm to the children. A court must assess
the battered mother’s actions or inactions by an objective standard, considering
what a reasonable parent would have done under the circumstances “then and
there existing.” The inquiry must be detailed, with the court considering risks
attendant to leaving, risks attendant to staying and suffering continued abuse, risks
attendant to seeking assistance through government channels, risks attendant to
criminal prosecution against the abuser, risks attendant to relocation, the
severity and frequency of the violence and resources and options available to the
mother. While the Court noted that its ruling “does not mean that a child can
never be ‘neglected’ when living in a home plagued by domestic violence,” it
recognized that a neglect finding against a battered mother based on domestic
violence would be appropriate only under the most egregious of circumstances.
The Court’s ruling in Nicholson v Scoppetta is consistent with the holding in
the federal class action lawsuit, Nicholson v Williams. 5 In Nicholson, a federal
court found that it is unconstitutional to remove children from battered mothers
solely or primarily on the grounds that there is domestic violence in the home, to
charge those battered mothers with child neglect and to mark cases against them
as “indicated” at the New York State Central Register of Child Abuse and
Maltreatment (SCR). 6 The federal district court issued an injunction against New
York City’s child welfare agency, the Administration for Children’s Services
(ACS), prohibiting it from such behavior in child welfare cases involving
domestic violence. 7 Upon ACS appeal of the federal case, the Second Circuit
Court of Appeals certified questions of state law to the New York Court of
Appeals, resulting in the decision in Nicholson v Scoppetta. Subsequently, the
Second Circuit remanded the case to the district court for consideration in light
of Nicholson v Scoppetta. On December 17, 2004, the parties settled the case
with ACS explicitly recognizing that the New York Court of Appeals decision
accurately sets forth the applicable law that ACS must follow.
In December, 2004, the parties settled the federal case with ACS explicitly
recognizing that the New York Court of Appeals decision accurately sets forth
the applicable law. Since Nicholson, state appellate courts have by and large
declined to uphold findings of neglect against battered mothers where the sole or
primary grounds for the finding is that the mother was a victim of domestic
violence, 8 while at the same time emphasizing that Nicholson does not preclude
findings against perpetrators of domestic violence. 9 It remains imperative that
practitioners representing domestic violence victims in child welfare proceedings