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 to be 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 Minimum Degree of Care

Parents and persons legally responsible in New York State must provide their children with the “minimum degree of care”, which includes any of the following: adequate food, clothing, shelter, medical care; basic dental care; mental health services; and drug or alcohol misuse treatment. Parents and persons legally responsible for a child must also provide adequate education, adequate supervision, and must refrain from excessive corporal punishment.

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

7.1.1 Adequate Education

The minimum degree of care regarding adequate education is measured by looking at the conduct of the parent after considering any efforts previously made by the school or CPS. Parents must ensure the children in their care are actively enrolled in school, which does not mean a child has to be earning high grades, participating in activities or have impeccable attendance.

7.1.2 Adequate Supervision

Parents and persons legally responsible in New York State must provide their children with adequate supervision. 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 is made on a case-by-case basis. A child left alone in a residence or in the community must be able to demonstrate that they have the 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.

7.1.3 Excessive Corporal Punishment

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

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.

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 October 9).

7.2 Maltreatment/Neglect

The terms maltreatment and neglect are often used interchangeably. Both terms have legal foundation in the CPS system. 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.

Under New York State law, 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 non-accidental, serious physical injury to the child.

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

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 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 Abuse

Under New York State law, a child is abused when a parent or person legally responsible for a child inflicts (or allows someone else to inflict) a non-accidental serious injury which causes:

• a substantial risk of death
• serious or protracted disfigurement
• protracted loss or impairment of the function of any bodily organ, or

When a parent or person legally responsible for a child creates (or allows to be created) a substantial risk of non-accidental physical injury which would be likely to:

• cause death
• serious or protracted disfigurement
• protracted loss or impairment of the function of any bodily organ, or

A parent or person legally responsible commits (or allows someone else to commit) a sex crime against a child.