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TJ, Esq.
TJ, Esq., Attorney
Category: Family Law
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Experience:  JD, MBA
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I was in an altercation with my husband and I pushed m, he

Customer Question

I was in an altercation with my husband and I pushed him, he got mad and called the cops. A cps report was initiated, and I was founded for inadequate guardianship (my daughter was in the room but did not witness the incident, nor was in the immediate vicinity). I am attempting to fight this but I need to know the NYS definition of inadequate guardianship. My CPS worker said that it was not acting in the best interest of the child, but as far as I have seen on the internet, it is not providing them with clothing, supervision, financial and medical stability etc. Things amongst those lines.
Submitted: 1 year ago.
Category: Family Law
Expert:  TJ, Esq. replied 1 year ago.

Hello and thank you for the opportunity to assist you. My name is ***** ***** I will do my very best to answer your legal questions.

The word "inadequate" simply has the ordinary English definition. The word "guardianship" comes from N.Y. Fam. Ct. Act § 1012. According to that statute, a parent is neglectful if that parent fails to provide the child with proper guardianship "by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court; provided, however, that where the respondent is voluntarily and regularly participating in a rehabilitative program, evidence that the respondent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he loses self-control of his actions shall not establish that the child is a neglected child in the absence of evidence establishing 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) of this subdivision;"

So inadequate guardianship means that the parent does anything quoted in italics above. You'll note that includes "the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired"

Obviously, that's quite a broad definition, but it's possible that a child's mental or emotional condition could be impaired (or is in danger of being impaired) if parents act violent towards one another while the child is in the same room. Please understand that I'm not judging you at all, but merely trying to help you to understand the situation.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied.

Customer: replied 1 year ago.
I guess what I really meant is how do they determine what is harmful to the child. My childRen are very well taken care of and this was the first ever incident. My daughter refused to talk to the CPS worker (because she's 4 and doesn't talk to strangers). And he made no attempts to coax her to talk. My husband and I both told him the the same facts that occured (children didn't witness it). If they did not interview the child how do they determine if it is emotional or mental impaired?
Expert:  TJ, Esq. replied 1 year ago.

Hi again.

The CPS worker wouldn't need to interview the child to determine that the child was in danger of becoming emotionally impaired. In other words, CPS doesn't need to wait until a child is emotionally impaired in order to take action ... they can take preventative measures when there is a danger. In this case, your husband filed a police report and presumably made various allegations against you. If those allegations are true, then it's possible that a CPS worker could conclude that your daughter was in danger of being emotionally impaired.

Having said that, if that was the only incident, and you and your husband both agree that your daughter did not witness anything, then I would expect this to ultimately work out in your favor.

Expert:  TJ, Esq. replied 1 year ago.

Hello again. I didn't hear back from you, so I'm just checking in to make sure that you don't need more help on this issue. If not, then please remember to provide a positive rating to close out this question (and please remember that your positive rating is the only way that I'll get credit for helping you, so I greatly appreciate it). Thank you!

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