Lawyers Manual - Unified Court System

Respondent Mothers
Representing Domestic Violence Victims in Child Welfare Cases 91
A child neglect proceeding may not be maintained against a non-offending
battered mother solely or primarily on the grounds that her child was exposed to
domestic violence. 33 As the law shifts away from holding battered mothers
responsible for the violence perpetrated against them, cases in which a battered
mother is named as a respondent are more likely to include allegations in addition
to, or instead of, domestic violence. An attorney should be alert to whether other
issues are a pretext for an unlawful prosecution based on domestic violence.
When CPS identifies other issues, such as alleged drug use or mental
illness, as the basis for the removal or neglect charges, the attorney must be
vigilant in ensuring that domestic violence is not brought in through the back
door at trial to imply maternal deficiency. Further, throughout any neglect case
involving allegations of domestic violence, the attorney must insist upon
distinguishing between the behavior of the battered parent and that of the abusive
parent. The petitioner bears the burden of proof to show by a preponderance of
the evidence that the parent has neglected her child as defined by law. 34 The
Family Court Act defines a neglected child as, among other things, a child:
whose physical, mental or emotional condition has been impaired
or is in imminent danger of becoming impaired as the result of
the failure of his parent . . . to exercise a minimum degree of care
. . . in providing the child with proper supervision or guardianship,
by unreasonably inflicting or allowing to be inflicted harm, or a
substantial risk thereof, . . . or by any other acts of a similarly
serious nature requiring the aid of the court . . . . 35
With regard to alleged emotional harm, the standard of impairment for a
finding of neglect is “substantially diminished psychological or intellectual
functioning.” 36 There must be proof of serious harm or potential harm, and the
harm must be “near or impending, not merely possible.” 37 Further, any
impairment to a child “must be clearly attributable to the unwillingness or
inability of the respondent to exercise a minimum degree of care toward the
child.” 38 The statutory standard is minimum degree of care, “not maximum, not
best, not ideal.” 39 Thus, in domestic violence cases, as in other neglect cases, a
court must consider both whether the child suffered harm or risk of harm and
whether the domestic violence victim exercised “a minimum degree of care. . .
under the circumstances then and there existing.” The petitioner, usually CPS,
also is bound to show a causal link between the two.