The good, the bad, and the future of Nicholson v. Scoppetta: an analysis of the effects and suggestions for further improvements.

• Author: Copps, Kathleen A.

1. INTRODUCTION

   "Daddy I'm hiding in the closet. Why do you drink? Why do you hurt Mommy? I saw her crying. I saw her bleeding. Daddy I'm hiding under the covers. Why do you scream? Why do you hurt Mommy? I saw you. Through the crack in the door. Daddy I saw her with bruises. I saw her lying. Daddy. Please don't hurt my Mommy." (1)

   In recent years the negative effects children experience as a result of exposure to domestic violence has been a widely discussed topic. But before suggesting these children be removed from their families, consider this mother's description of the condition of her children when they were returned to her after being removed to foster care:

   The children were in poor health.... [They] 'were not the same [children] I gave [to foster care].' ... ... [I] took them to the nearby hospital emergency room.... [A]ll were regurgitating and both of the youngest children had ear infections.... [T]he youngest child also [had] ... a festering facial infection. (2) Another mother described the following: "Destinee had a rash on her face, yellow puss running from her nose, and she appeared to have scratched herself. Her son had a swollen eye.... because the foster mother had slapped his face." (3) Another mother described the following: '"[t]hey have been missing classes because their foster mother is unable to get them to school on time'[;] ... 'the foster mother has refused to provide house keys to the children and they have been locked out of their foster home repeatedly."' (4) Her daughter described the time in foster care as '"very uncomfortable;' the foster mother 'treated us like we were criminals' [and we] were locked in the house without access to the telephone when the foster mother would leave." (5) And consider one more mother's account:

   [Now,] [h]e's very attached to me. He screams [whenever] I even walk in the other room. He thinks that I am leaving. Every time the doorbell rings he gets hysterical. Especially when we go to my mother's house, he latches on to me. He won't leave my sight and he says I don't want to stay here. I want to go home with Mommy. I think he's very afraid to be away from me ever again. (6) These disturbing accounts are far from rare; in fact, all of the preceding accounts came from just the plaintiffs in Nicholson v. Williams. (7)

   This article will discuss the case Nicholson v. Scoppetta (8) from the perspective that it is almost always better to keep the mother (9) and her children together and remove the batterer instead. There was a great deal of scholarly writing (10) about this case immediately following the Court of Appeals decision, but this article, written over three years later, will examine how the Administration for Child Services (ACS) (11) and the lower courts have responded, and make suggestions for further improvement.

   Section II will discuss background information on (1) child abuse; (2) the effects on children from exposure to domestic violence and removal to foster care; (3) ACS policy prior to Nicholson Scoppetta; and (4) New York case law prior to Nicholson Scoppetta. Section III will discuss the procedural history of Nicholson v. Scoppetta and how it changed New York law in the area of removals in neglect cases. Section IV will discuss the positive effects Nicholson v. Scoppetta has had, and the problems that still remain to be solved. Section V will suggest four methods of attacking these remaining problems: (1) malicious prosecution claims against ACS; (2) provision of additional services by ACS to victims of domestic violence and their children; (3) requiring courts to follow Nicholson v. Scoppetta's instructions and weigh the harms of removal with the harms of remaining in the home, in each individual case; and (4) holding the batterer accountable. Section VI discusses how Nicholson v. Scoppetta has been cited and applied in other jurisdictions. Section VII contains a brief conclusion to the article.

2. BACKGROUND

   1. History of Child Abuse

      The first time that child abuse was brought to the forefront in American society was in 1874 when Mary Connolly was convicted of assault and battery against her ten-year-old foster daughter. (12) The Society for the Prevention of Cruelty to Animals was called upon to assist in this case because there were not yet any agencies that dealt with abuse directed toward children. (13) Following this trial, the New York Society for Prevention of Cruelty to Children was established and within forty years there were almost five hundred similar societies created. (14)

      The Social Security Act of 1935, establishing the Aid to Dependent Children program, increased the federal government's involvement in social welfare and established the policy that it is better to provide financial aid to families in need than to remove children. (15) In 1962, the issue of child abuse was brought back to the forefront by physician C. Henry Kempe's article, The Battered Child Syndrome. (16) This article explained the physical manifestations of child abuse and told doctors they had a duty to report such abuse to the authorities. (17) One of the major responses to this article was the creation of mandated reporting statutes; by 1967 every state had enacted a statute mandating reporting of child abuse by certain professionals, and through statutory amendments, more professionals have become mandated reporters over the years, (18) The Child Abuse Prevention and Treatment Act of 1974 (CAPTA) required states to enact mandated reporting laws and create programs and procedures to investigate reports of child abuse in order to receive federal funds provided under CAPTA. (19) The Adoption and Safe Families Act (ASFA), passed in 1997, mandated a focus on the child's best interest (20) and signaled a change in policy, away from family preservation and towards "timely termination of parental rights and adoption." (21)

   2. Effects on Children from Exposure to Domestic Violence and Removal to Foster Care

      Throughout the 1900s there was also an increased awareness of domestic violence, and more recently, an awareness of the effects that exposure to domestic violence can have on children. In homes where domestic violence occurs, approximately eighty-seven percent of children are exposed to that violence, amounting to exposure of approximately 3.3 million children per year. (22) Children can be physically harmed as well as psychologically and emotionally harmed by exposure to domestic violence. (23) However, not all children are affected in the same way or to the same degree. (24)

      Children in homes where domestic violence occurs can be at risk of physical injury in three ways: (1) due to the high correlation of domestic violence and child abuse, fifty to seventy percent; (2) by attempting to intervene to protect their abused parent; and (3) by inadvertently being caught in the cross-fire. (25)

      A wide variety of emotional and psychological effects exhibited by children have been linked to exposure to domestic violence. These effects include depression, suicidal ideation, anxiety, fear, insomnia, low self-esteem, bed-wetting, post-traumatic stress disorder, hypervigilance, and desensitization to other forms of violence. (26) These children may also exhibit other behavior problems as they grow older, such as truancy and substance abuse. (27) Children may also develop social problems, such as aggression or withdrawal, and academic problems, such as trouble concentrating and lower standardized test scores, due to their exposure to domestic violence. (28) Additionally, exposure to domestic violence may create an "intergenerational cycle of violence" in which children enter into their own abusive relationships as adults. (29)

      A variety of factors are believed to influence the emotional and psychological effects that exposure to domestic violence has on children: (1) nature, severity, and frequency of exposure; (2) nature of the child's involvement in incident; (3) whether the child has been multiply victimized; (4) the degree to which the adult victim of the violence is affected; (5) the child's relationship to the batterer; (6) the child's age and gender; and (7) "risk" factors such as poverty and parental substance abuse. (30)

      Not all children, however, are harmed--one study found that "over 80% of children exposed" to domestic violence "retain[ed] their overall psychological integrity," and in those children that were affected, the effects tended to dissipate over time if the batterer was removed from the home. (31) The effects of exposure can also be mitigated by the presence of "protective" factors such as coping skills, support networks, presence of a strong parental figure, and appropriate social and legal intervention. (32) The child's well-being is strongly tied to the well-being of the non-abusive parent, and providing services to increase the safety and functioning of the non-abusive parent can also improve the well-being of the child. (33)

      Conversely, removing the child from the non-abusive parent can have an extremely detrimental effect on the child. Children who have been exposed to domestic violence often view "their immediate universe as unpredictable and unsafe" (34) and removal may be more traumatic for them than for other children. (35) These children are at a heightened risk for separation anxiety disorder and may experience self-blame and anxiety about the safety of their parent. (36)

      Children who are removed from their non-abusive parent are also at risk of harm in foster care. (37) Children placed in foster care, as compared to children in the general population, are at a seventy-five percent higher risk of child maltreatment, (38) twice as likely to die from abuse, and four times as likely to be sexually abused. (39) Children in foster care are also more likely to have health problems and receive inadequate medical care, to have problems in school, and to have behavior and emotional problems. (40) Children's lives are also...