Case Summaries: Backlash
Allowing Child To Witness DV In Home Is Insufficient Ground For Removing Child From Mother's Care
On remand from the 2nd Circuit U.S. Court of Appeals, the New York Court of Appeals, New Yorks highest Appellate Court, ruled that "exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment. A fortiori, exposure of a child to violence is not presumptively ground for removal, and in many instances removal may do more harm to the child than good." Therefore, a child welfare agency cannot remove a child from the battered mothers home merely because the child has been exposed to domestic violence. Further, the agency must, except in the most dire circumstances, obtain a court order if it wants to remove a child from the battered mothers home because she has "allowed" the child to witness domestic violence. The judge in turn cannot order removal of the child from the care or custody of the battered mother unless there is a "risk of serious harm" to the child. The court then "must balance that risk against the harm removal might bring, and it must examine factually which course is in the childs best interest." Nicholson v. Scopetta, No. 113 (New York Ct. of App. 10/26/2004).
Keywords: "abuse","child neglect",backlash,"unfit mother"
Date: 11/15/2004
Parents Mutual DV and Mothers Drug Use Warrant Termination of Parental Rights
The court of appeals affirmed the juvenile courts termination of parental rights concerning two dependent children where both parents had ongoing issues of domestic violence and the mother had used drugs. While the mother had made some effort to comply with the case plan, much of her effort began after Children Services filed its motion for permanent custody (termination of parental rights), which was months after the case plan was filed. Further, she had failed to remedy the conditions which led to the removal of the children, and her compliance was at best sporadic. In the Matter of: Maleah Colaner and Charles Colaner, 02-LW-2361, No. 2002AP030013 (Tuscarawas, 5th App.Dist., 6/18/2002).
Keywords:
Date: 11/4/2002
Court of Appeals Upholds Conviction of Domestic Violence Victim For Complicity In Violating Her Own TPO
The Licking County Court of Appeals affirmed the conviction of a domestic violence victim for complicity to violating her own temporary protection order (TPO). She had invited her ex-husband over to her house to participate in their sons birthday party, and a physical altercation ensued. The Court of Appeals concluded that she had aided and abetted her ex-husbands commission of the crime of violating a protection order by "recklessly" exposing herself to her ex-husband. The Court of Appeals in this case specifically disagreed with the reasoning of the Cuyahoga County Court of Appeals in N. Olmsted v. Bullington (2000), 139 Ohio App.3d 565, in which that court had held that a domestic violence victim could not be prosecuted for "aiding and abetting" a violation of her own protection order. State v. Lucas (2002), 147 Ohio App.3d 297, 2002-Ohio-2514.
Keywords: enforcement,aiding and abetting,backlash
Date: 8/1/2002
Injunction Issued Against New York City Childrens Services Agency For Removing Children From Homes of Domestic Violence Victims
A federal district court in New York issued a preliminary injunction and later entered a final injunction against the New York City Administration for Childrens Services (ACS) prohibiting the agency from separating a mother, not otherwise unfit, from her children on the basis that, as a victim of domestic violence, she was considered to have "engaged in" domestic violence. The federal court also ordered that compensation for attorneys appointed to represent mothers threatened with the removal of their children be increased in order to allow for adequate legal representation of the mothers. This class action lawsuit was brought on behalf of women who were battered and who, without fault on their part, had their children removed by ACS. This landmark case provides an important legal precedent for challenging similar actions by children services agencies in Ohio or elsewhere. Nicholson v. Williams (2002), 181 F.Supp.2d 182 (preliminary injunction), and Nicholson v. Williams, 2002WL448452, Case No. 00-CV-2259, 00-CV-5155, 00-CV-6885 (E.D.N.Y., 3/18/2002).
Keywords: custody, removal, PCSA, backlash
Date: 6/17/2002
Court of Appeals Affirms Victims Conviction of Criminal Complicity For Violating Own Protection order (a Criminal TPO)
The Fifth District Court of Appeals held that a victim may be charged and convicted of criminal complicity for violating her own protection order. She had invited her ex-husband to her home for their childs birthday party, during which time they both drank alcoholic beverages and had a physical altercation. In an earlier case, the Eighth District Court of Appeals had held that a victim could not be prosecuted for aiding and abetting by violating her own protection order because of legislative intent, the victims status as a member of a protected class, the fact that the order was directed to the abuser, and the statutory prohibition against mutual protection orders. See City of North Olmsted v. Bullington, infra. In this case, however, the Court of Appeals rejected the reasoning of the Bullington court and found the victim guilty of complicity because she acted "recklessly" in violating the terms of the protection order. State v. Lucas, 2002WL802048, Case No. 01CA00100 (Fifth District, Licking, 4/25/2002).
Keywords: backlash, unintended consequences, punish victim
Date: 6/17/2002
