Dr. XX

[ENTER YOUR ADDRESS]

[ENTER DATE]

Hon. [ENTER NAME]

The New York State Administration of Children Services Judge

[ENTER ADDRESS]

REF:    In the Matter of:

XXX

XXX

XXX

XXX

Children under 18 years alleged to be neglected

By XXX.

MOTION TO SUPPRESS ACS’S EVIDENCE    

Movant [ENTER NAME] hereby files this Motion to Suppress ACS’ evidence. Motion therefore moves this Court to Suppress ACS’ report on the grounds that there was no emergency to warrant the removal of the children; and that the removal violated Movant’s due process rights. Movant therefore alleges:

1. There was no circumstance to warrant emergency removal

New York has long embraced a policy of keeping “biological families together”. See Matter of XXX]. Accordingly, the ACS Staff were duty bound to provide prior notice to the Movant that they intended to apply for a temporary order to remove the children. See N.Y. Fam. Ct. Act § 1023. N.Y. Fam. Ct. Act § 1022 and 1024 provide for instances where removal is permitted without the filing of a petition. These instances include where a parent is absent, or if present, refuses to consent to the removal; where there is need to avoid imminent danger to the child’s life or health; and where there is little time to apply for the Petition. See N.Y. Fam. Ct. Act § 1022 (a)(i); and 1024 (a) and (b).  

Movant contends that “imminent danger” is based on the facts. The Courts have further held that an allegation of “imminent danger” would be made if the officers have “persuasive evidence of serious ongoing abuse and, based upon the best investigation reasonably possible under the circumstances, have reason to fear imminent recurrence” Gottlieb v County of Orange, 871 F Supp 625, 628-629 [SD NY 1994], citing Robison v Via, 821 F2d 913, 922 [2d Cir 1987]. Further, “[s]ince this evidence is the basis for removal of a child, it should be as reliable and thoroughly examined as possible to avoid unnecessary harm to the family unit” Gottlieb 871 F Supp at 629.

The Courts consider whether the removal of the child would be in the child’s best interest. See N.Y. Fam. Ct. Act § 1022 (a)(iii). There is a need to balance that any imminent risk against the harm removal might bring, and there must be a factual determination which course is in the child’s best interests.” Nicholson v Scoppetta, 3 NY3d 357, 378 [20XX]. Accordingly, the court must consider whether there are alternative reasonable efforts to avoid removal, such as issuing a temporary order of protection or providing services to the family. Matter of Naomi R., 296 AD2d 503 [2d Dept 20XX] (The Court erred by granting a removal since there was insufficient evidence that the children would be at imminent risk in the mother’s care and the court failed to consider whether reasonable efforts could mitigate the risk). Courts have also held against removals, because they created a permanent and significant stigma. See Matter of C. Children, 249 AD2d 540 [1998].

Movant contends that removal is only appropriate where the danger is so immediate, so urgent that the child’s life or safety will be at risk before an ex parte order can be obtained. The standard obviously is a stringent one. Therefore, children should only be removed in very grave circumstances. See Nicholson v Scoppetta (20XX NY Slip Op 07617). The level of proof is high to “protect against unwarranted State intervention into private family life.” Id, at 370. According to the Court in Nicholson, “[a] party seeking to establish neglect must show, by a preponderance of ‘competent, material, and relevant’ evidence (FCA § 1046 [b] [I] and [iii]), that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the respondent’s failure to exercise a minimum degree of care. FCA §1012 (f); Nicholson, 3 NY3d 357, 368 [20XX]. Further, “[w]hether actual or threatened, the harm must be serious . . . not just . . . what might be deemed undesirable parental behavior.” Id. Additionally, to establish neglect, “there must be a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child’s impairment or imminent danger of impairment.” Id.

“[M]inimum degree of care” is a baseline of proper care for children that all parents, regardless of lifestyle or social or economic position, must meet. Notably, the statutory test is “minimum degree of care”—not maximum, not best, not ideal—and the failure must be actual, not threatened. See Matter of Hofbauer, 47 NY2d 648, 656 [1979]. Further, Courts must evaluate parental behavior objectively: would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing. See Matter of Jessica YY., 258 AD2d 743, 744 [3d Dept 19XX].

In the instant action, Movant asserts that there was no grave circumstance and/or imminent danger that warranted the ACS officers to remove the children. First, the ACS stated in their report that the “school nurse passed by the child and was concerned”. It is worth noting that the nurse did call 911. Therefore, the nurse could not see any grave circumstances, but only an issue of concern. Also, the children’s mother informed the ACS staff that the children had been fighting, which explains(ed) the concern. However, the ACS staff failed to conduct any investigation to determine whether the children had indeed engaged in a fight that resulted in Ryan’s injuries.

Thirdly, Ryan was not immediately taken to the hospital. Instead, he was subjected to a long interview as the police and the ACS staff sought information from him. This is contrary to what one expects in an emergency situation that warrants removal, based on grave circumstances. It would only be concluded that there was imminent danger if the police and the ACS staff had immediately rushed Ryan to hospital in an ambulance.

ACS failed to acknowledge the children’s mother’s statement to them that the injuries caused on Ryan were the result of the children fighting. Besides, Ryan showed no signs of abuse or physical abnormalities. Movant points out the fact that the children have always attended school diligently, and are always prepared for school in all regards. The children have no fear of coming back home. Notably, the children’s pediatrician, who has been seeing the children for a long time, stated that he has never seen any signs of abuse or neglect with the children. 

The ACS also failed to consider the fact that Movant was in a different State when the ACS contacted him. Besides, he was not home at the night the ACS allege he inflicted abuse and/or injury on Ryan. 

It appears therefore, the ACS embarked on a show of abuse of power. They were reasonably aware that Movant was out of State; and that no domestic violence call, no allegation and/or report of abuse and/or neglect had ever been made concerning the children. It also appears that ACS effected the removal as a result of the children’s parents’ refusal to have the children asked questions without their consent.

In light of the foregoing, Movant submits that ACS had adequate time to follow the due process before removing the children; there was no grave circumstance or imminent danger; ACS failed to conduct sufficient investigation to prove the existence of imminent danger; there were no signs of abuse to warrant removal; in fact harmed the Movant’s family unit instead, by the removal; the ACS failed to acknowledge the fact that the Movant, who is accused of inflicting injuries on Ryan, was not home the night of the removal; and the children admitted to their pediatrician that they inflicted the injuries on themselves.       

1. The actions of the ACS officers violated Movant’s Due Process Rights

Procedural due process is essentially based on the concept of “fundamental fairness”. It includes an individual’s right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them. XXX.

It is process which, following the forms of law, is appropriate to the case and just to the parties affected. See XXX. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law. Id. at XXX).

The language of the Fourteenth Amendment requires the provision of due process when an interest in one’s life, liberty or property is threatened. Morrissey v. Brewer, XXX.

In the instant action, ACS failed to consider the circumstances, in effecting the removal. The children’s mother informed the ACS officers that Ryan was not subjected to any neglect and/or abuse, and that the bruise he had was a result of a fight he had with the children. Further, ACS seemed to retaliate against the children’s parents’ decision to engage a lawyer and deny them asking the children questions. Therefore, ACS, in retaliation and as a show of power, went ahead to remove the children. It is instrumental to note that the removal was not only unwarranted (there was no imminent danger and/or risk), but also failed to follow the due process of law. ACS was obligated to seek the parents’ consent, at least. See N.Y. Fam. Ct. Act § 1022 and 1023.   

It follows; therefore, the conduct of ACS in removing the children was unwarranted and violated Movants due process rights.

Conclusion

          For the foregoing reasons, Movant submits that the Evidence Adduced by ACS is erroneous because the children were not subjected to any imminent danger and/or risk. Besides, there was no proof of neglect or abuse of the children. Lastly, ACS failed to follow the procedure for removals. Accordingly, the Movant prays that for the interest of justice and fairness, the said evidence be suppressed and any charges, claims, and/or allegations against Movant be dropped.  Movant prays for any other relief deemed just.

Respectfully Submitted,

Dated: _____________

CERTIFICATE OF SERVICE

          I hereby certify that on _____________, I sent the foregoing to the Parties herein to their respective addresses.

Dated: _____________