Friday, November 14, 2014

CPS (child protective services) and Your DWI Charges: Is it Abuse and Neglect?



If you have been charged with any DWI or DWAI drugs in New York and you have young children CPS (child protective services) MAY be notified. But if you have been charged with an aggravated DWI because you were driving while a child under 16 was in your car then the police MUST notify CPS.

When is CPS contacted? What happens next? Does a parent's DWI mean child abuse or neglect?




A case report will be filed and an investigation will begin against you. First the level of proof to take a child from it's parent, guardian, or custodian is a fairly high one. It falls just under the legal standard of proof beyond a reasonable doubt. It must be clear and convincing proof (evidence) of abuse and/or neglect.

Our New York State Courts have held

Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence. A "clear and convincing evidence" standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. 

The way it works:

A Report is sent to CPS by the authorities (law enforcement)

1. you are determined to be the legally responsible relative and
2. there is legally sufficient information or allegations (the probable cause from the DWI arrest will suffice here)

There is an Investigation
There is Verification
A determination of family needs is ascertained

Services are provided 

Services Refused or Unsuccessful (usually substance abuse services/treatment/mental help) 

- Referral to the Family Court for proceedings against YOU!

Initial determination where child stays during Family Court Proceedings

Fact-Finding Hearing in Family Court

If a Finding of ABUSE or NEGLECT (see NYS legal definitions below)

Definition of Child Abuse1
"Abused Child" means a child less than 18 years of age whose parent or other person legally responsible2 for the child’s care:
  1. inflicts or allows to be inflicted upon the child physical injury by other than accidental means which causes or creates a substantial risk of death, serious or protracted disfigurement, protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; or
  2. creates or allows to be created a substantial risk of physical injury to the child by other than accidental means which would be likely to cause death, serious or protracted disfigurement, protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; or
 Driving them around drunk, impaired by drugs, or in combo would qualify here because it causes or creates a real danger to them of physical injury.

Definition of Child Neglect1

"Neglected Child" means a child less than 18 years of age:

  1. whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of the child’s parent or other person legally responsible2 for the child’s care to exercise a minimum degree of care:
    1. in supplying the child with adequate food,clothing,shelter,education in accordance with Part I of Article 65 of the education law, or medical, dental, optometrical, or surgical care though financially able to do so or offered financial or other reasonable means to do so; or
    2. in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm or ubstantial risk of harm including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that the parent or other person legally responsible for the child’s care loses self-control of his or her actions; or by any other acts of a similarly serious nature requiring the aid of the court. However,where the person legally responsible for the child’s care is voluntarily and regularly participating in a rehabilitative program, evidence that he or she has repeatedly misused a drug (or drugs) or an alcoholic beverage (or beverages) to the extent that he or she loses self-control of his or her actions shall not establish that the child is a neglected child without evidence that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as set forth in paragraph (i);or
Neglect and Abuse are two sides of the same coin and while one is more broad any child under your care must not be subjected to undue risk or harm. DUI/DWI/DWAI drugs would all be the symptom of a greater cause, namely a willingness to take on unnecessary and dangerous risks.


Always remember to consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

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newman.lawrence@gmail.com
607-229-5184

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http://www.avvo.com/attorneys/14850-ny-lawrence-newman-530905.html

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