DEFINING MALTREATMENT AND ABUSE

Different states and government entities may vary in their definitions of child abuse. The following definitions are specific to the state of New York and address various forms of abuse.

Person Legally Responsible (PLR)

The New York State Family Court Act, section 1012(g), states:

“Person legally responsible” includes the child’s custodian, guardian, or any other person responsible for the child’s care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child.

Abuse

Child abuse may include serious physical harm or substantial risk of serious physical harm to the child. Acts of sexual abuse are also included in this definition. These acts are committed by the parents or caretakers of the child or allowed to occur by the parent or caretaker.

Child abuse in New York State is defined in Family Court Act, section 1012(e) (emphasis added).

“Abused child” means a child less than 18 years of age whose parent or other person legally responsible for the child’s care:

1. Inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or 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 such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily organ; or
3. Commits or allows to be committed a [sex] offense against such child … [see “Sexual Abuse” below]

Neglect

Child neglect in New York State is defined in the Family Court Act, section 1012(f). Neglect can be physical, mental, or emotional. It includes the failure a parent or person legally responsible (PLR) to provide a child with the minimum degree of care for normal growth and development. This includes:

• Adequate food
• Adequate clothing
• Adequate shelter
• Adequate medical care (basic dental care, mental health services, treatment for drug or alcohol misuse)
• Adequate education (ensuring the child is actively enrolled in school)
• Adequate supervision
• No excessive corporal punishment

The minimum degree of care regarding adequate food, clothing, shelter, and medical care must be considered in regard to whether the parent or PLR was financially able to do so or was offered other financial or reasonable means to do so.

Being actively enrolled in school does not mean a child has to be earning high grades, participating in activities, or have perfect attendance. The minimum degree of care is measured according to the conduct of the parent after considering any efforts previously made by the school and/or Child Protective Services.

There is no provision in New York State law or regulation that dictates how old a child must be to be left alone without adult supervision. Determining whether a child can be safely left alone must be made on a case-by-case basis as demonstrated by the child’s knowledge and skills necessary to properly respond to a potential emergency and to care for themselves. Just because an individual child may be left safely alone does not mean that child has the necessary skills to supervise other children without an adult present.

New York State law permits parents to use corporal (physical) punishment to discipline their children, but it cannot be excessive. Excessive corporal punishment includes when:

• The child lacks the capacity to understand the corrective quality of the discipline
• A less severe method is available and likely to be effective
• The punishment is inflicted due to the parent’s rage
• The child receives injuries or bruises as a result
• The length of punishment surpasses the child’s endurance

Maltreatment

Under New York State Social Services Law, section 412, a child is maltreated when:

• A parent or other person legally responsible for the child fails to provide the minimum degree of care and that failure results in impairment or imminent danger of impairment to the child’s physical, mental, or emotional condition, or
• A parent or other person legally responsible for the child causes a nonaccidental, serious physical injury to the child

It is important to note actual impairment or harm is not required. However, poverty in and of itself is not maltreatment.

Sexual Abuse/Exploitation

Sexual abuse includes situations in which the parent or another person who is legally responsible for the child commits or allows sexual misconduct, rape or sexual abuse, commercial sexual exploitation, incest, production or possession of pornography, or sex trafficking. New York State Family Court Act, section 1012(e)(iii), and Social Services Law, section 371, list the following:

• Commits or allows to be committed any sex offense against the child, as defined in article 130 of the penal law, including sexual misconduct, rape, and sexual abuse
• Allows, permits, or encourages the child to engage in child prostitution, as described in §§ 230.25, 230.30, and 230.32 of the penal law
• Commits an act of incest, as described in §§ 255.25, 255.26, and 255.27 of the penal law
• Allows the child to engage in acts or conduct to produce, promote, or possess child pornography, as described in article 263 of the penal law
• Permits or encourages the child to engage in any act or commits or allows to be committed against the child any offense that would render the child either a victim of sex trafficking or a victim of severe forms of trafficking in persons pursuant to 22 U.S.C. § 7102
  (CWIG, 2019)

Emotional Abuse

Emotional abuse is defined in New York State ’s Family Court Act, section 1012(h):

“Impairment of emotional health” and “impairment of mental or emotional condition” including a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, acting out, or misbehavior, including incorrigibility, ungovernability, or habitual truancy; provided, however, that such impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child.

Abandonment

The New York State Social Service Law, section 384B, defines abandonment as a situation in which:

A parent evinces an intent to forgo his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed.