Oftentimes, a parent or a person legally responsible (PLR) is named by ACS as a respondent in an abuse/neglect petition under the theory of derivative neglect.
Under this theory, the respondent’s actions or inaction toward one child in the household, places the other children in the household at risk. This is known as derivative abuse or neglect of his or her sibling. It has been held that when considering a derivative finding of abuse, the Court should take into account the nature of the direct abuse, its duration, and the circumstances of its commission.
Derivative abuse/neglect has been found in instances of sexual abuse, physical abuse, and where a child is born drug addicted, to name a few.
However, just because one child in the family household is being investigated for abuse/neglect, it doesn’t always justify the filing for abuse or neglect of the other children in the household. Recently, I successfully argued that a derivative neglect petition, filed for educational neglect, must be dismissed when it was shown that the other children did not present the same educational challenges of the subject child, and that they were in fact thriving in school. These children were found to be differently situated then the subject child, and not at risk of any imminent danger.
Should you have any questions on any Family Court or ACS matter, please feel free to consult The Law Office of Jeffrey L. Emdin at (212) 265-1350 and [email protected]
