Lawyers Manual - Unified Court System

Representing Domestic Violence Victims in Child Welfare Cases 93
The attorney should be creative in locating expert witnesses: local domestic
violence agencies or shelters frequently employ or have access to dedicated
professionals who will serve as experts at no charge. The expert witness should
not necessarily interview the mother, but should review the pleadings, case record
and other documentary evidence and, when possible, be present for the mother’s
testimony. The expert witness can testify about domestic violence generally and
can assess whether the safety measures employed by the mother were reasonable
and rose to a statutory “minimum degree of care” as defined in Nicholson.
Settlement
A non-respondent mother has an interest in the settlement of a neglect case
against the abuser. The attorney should ensure that no settlement is offered or
agreed upon without input by the non-respondent mother. In particular, any
settlement should include an order of protection for the non-respondent mother
as custodial parent.
With regard to a respondent mother, when a child is safe and the abuser is no
longer in the picture, the attorney should urge CPS to consent to dismissal because
the aid of the court is no longer required44 or to withdraw the petition outright.
Again, the attorney must remind CPS that the purpose of the Family Court Act is
protection, not punishment. More likely, if there is a pre-trial settlement offer it
will take the form of an adjournment in contemplation of dismissal (ACD). With
an ACD, the mother makes no admission of neglect but agrees to submit to certain
terms including a period of supervision by CPS that is likely to range from three
months to the maximum permissible period of a year. During the period of the
ACD, the mother may be required to continue counseling, enforce an order of
protection or cooperate with other services. She may be required to testify against
the abuser. If the mother complies with the supervision, there will be no further
court appearances and, at the end of the ACD period, the petition will be dismissed.
If CPS alleges that she has not complied with the terms of the ACD, CPS may file
a violation petition, prove that the terms of the ACD were violated, and reinstate
the neglect case. While an ACD is not an ideal outcome, it may be a practical way
to avoid protracted litigation. As always, the decision is the mother’s to make.
CPS also may offer to accept what is called an “admission.” 45 With an
admission, the mother does not actually admit to neglect but rather agrees to
submit to the jurisdiction of the court and to the entry of a neglect finding. An
admission is appropriate where the facts alleged constitute neglect under existing