Academic journal article Albany Law Review

The Good, the Bad, and the Future of Nicholson V. Scoppetta: An Analysis of the Effects and Suggestions for Further Improvements

Academic journal article Albany Law Review

The Good, the Bad, and the Future of Nicholson V. Scoppetta: An Analysis of the Effects and Suggestions for Further Improvements

Article excerpt

I. 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. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.