New York: Child Abuse and Maltreatment/Neglect for Mandated Reporters (348)Page 8 of 16

7. Defining Child Abuse and Maltreatment/Neglect

The Federal Child Abuse Prevention and Treatment Act (CAPTA), defines child abuse and neglect as, at minimum:

  • Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or
  • An act or failure to act which presents an imminent risk of serious harm.

This definition of child abuse and neglect refers specifically to parents and other caregivers. A “child” under this definition generally means a person who is younger than age 18 or who is not an emancipated minor.

Under New York law, children are defined as individuals from birth up to 18 years of age. Prenatal abuse cannot be reported, but if a child is born with neonatal drug withdrawal, a report can then be made. Youth no more than 21 years of age who have handicapping conditions and are in residential care in certain New York schools for the blind or deaf or in private residential schools for special education services may also be reported to the SCR.

To qualify as abuse, there needs harm or substantial likelihood of harm related to the actions or inactions of the person responsible for the child. You do not need to know if the incident is abuse or maltreatment to make a report. That determination will be made by the SCR or by the local CPS during its investigation.

7.1 Physical Abuse

Physical abuse occurs when the parent or caregiver inflicts or allows to be inflicted on a child serious physical injury by other than accidental means, and such action causes or creates a substantial risk of death, serious or protracted disfigurement, impairment of physical or emotional health, or impairment of the function of any bodily organ.

Abuse also occurs when the parent or caregiver creates or allows to be created a substantial risk of physical injury to the child by other than accidental means when such action causes or creates a substantial risk of death or serious or protracted disfigurement, impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily organ.

7.2 Maltreatment/Neglect

The terms maltreatment and neglect are often used interchangeably. Both terms have legal foundation in the CPS system. Maltreatment is the term defined in NY Social Services Law and neglect is defined in Section 1012 of the Family Court Act. Although the terms are not synonymous in the law, for the purposes of this course, the terms neglect and maltreatment are used interchangeably.

Maltreatment refers to the quality of care a child is receiving from those responsible for the child. It occurs when a parent or other person legally responsible for the care of a child harms a child or places a child in imminent danger of harm by failing to exercise the minimum degree of care in providing the child with any of the following: food, clothing, shelter, education, or medical care when financially able to do so.

Abandonment of a child or failing to provide adequate supervision is also considered to be maltreatment. A child may be maltreated if a parent engages in excessive use of drugs or alcohol if it interferes with their ability to adequately supervise the child.

Neglect is defined as the failure of a parent or caretaker to provide needed food, clothing, shelter, medical care, or supervision to the degree that the child’s health, safety, and well-being are threatened with harm.

7.3 Sexual Abuse

Under New York Penal Law, sexual abuse is a considered to be a form of abuse or maltreatment. Sexual abuse by an adult involving a child is described as sexual misconduct, persistent sexual abuse, forcible touching, incest, rape, facilitating a sex offense with a controlled substance, or encouraging a child to engage in any act that would render a child a victim of sex trafficking.

Sexual abuse also includes criminal sexual acts, aggravated sexual abuse, sexual conduct against a child, female genital mutilation, and promoting prostitution. The use of a child in a sexual performance, promoting an obscene sexual performance by a child, promoting a sexual performance by a child, possessing an obscene sexual performance by a child, or possessing a sexual performance by a child is considered to be sexual abuse.

7.4 Excessive Corporal Punishment

New York State allows reasonable physical correction of a child, but excessive corporal punishment is an indicator of neglect. As of October 25, 2023, corporal punishment is prohibited in every school within the state and is classified as child abuse (Education Law §1125 and §305). Defining excessive corporal punishment is always on a case-by-case consideration, and you do not have to be able to define it in order to make a report to the SCR.

When evaluating a situation involving potential excessive corporal punishment, ask yourself the following questions. If you answered yes to any of these questions it may indicate the punishment was excessive (NYSOCFS, 2023):

  • Does the child have the capacity to understand the corrective quality of the discipline? Consider age, maturity, and the child’s physical and mental condition.
  • Is a less severe means of punishment available and likely to be effective?
  • Is the punishment unnecessarily degrading?
  • Was the punishment inflicted for gratification of parental rage?
  • Was the punishment brutal?
  • Did the punishment last for such a time that it surpassed a child’s power of endurance?

Determinations about excessive corporal punishment may consider whether it was inflicted using devices (cords, brushes, wooden spoons, or other implements) and to a part of the body that is more vulnerable, such as the head, face, abdomen, especially if it results in identifiable markings as a result (“pattern injuries,” such as ligature marks, cord marks, brush patterns, burns, bite marks).

If you have reasonable cause to suspect child maltreatment, make the report. Trained personnel will then investigate and make the appropriate determination.

Beginning with the 2024-2025 school year, each public school district, Board of Cooperative Educational Services, charter school, State-operated school pursuant to Articles 87 and 88 of the Education Law, and private residential school operated pursuant to Article 81 of the Education Law, must submit an annual report to the New York State Education Department on the use of physical restraint and timeout, substantiated and unsubstantiated allegations of use of prohibited interventions, corporal punishment, mechanical restraint and other prohibited aversive interventions, prone physical restraint, and seclusion (NYSED, 2024 February 9).