The Three-Day Filing Rule Is Jurisdictional: First Department Vacates Neglect Finding and Declares Prolonged Removal Unlawful in Matter of Kaius A. v. Abigail H.

Introduction

This commentary examines the Appellate Division, First Department’s decision in Matter of Kaius A. v. Abigail H. (2025 NY Slip Op 04692), a significant Article 10 ruling that both re-centers the statutory and constitutional limits on emergency child removals and clarifies pleading and proof standards in neglect proceedings. The case involved the Administration for Children’s Services (ACS), the respondent mother (Abigail H.), the respondent father (Lashawn A.), and the three subject children who had been placed with their paternal grandmother (M.H.) after the children were removed from the mother’s care.

Two overarching issues animated the appeal:

• Whether Family Court retained subject matter jurisdiction to continue the children’s removal and placement after ACS failed to file a petition against the mother within three court days of the removal order, as required by Family Court Act (FCA) §§ 1021 and 1022.
• Whether ACS proved neglect by a preponderance of the evidence where its proof consisted of contradictory and uncorroborated testimony, lacked evidence of service of a temporary order of protection (TOP), failed to demonstrate actual or imminent harm, and did not confine the proof to the allegations pleaded or properly amend the pleadings with notice.

The First Department reversed Family Court’s neglect finding, vacated the finding, and dismissed the petition. In doing so, it issued a clear jurisdictional directive: the three-court-day filing requirement for petitions following a removal is not merely procedural—it limits the Family Court’s power to continue a removal if not met. The Court also addressed due process, evidentiary sufficiency, and the impermissibility of basing neglect on unpleaded theories without compliance with FCA § 1051(b).

Summary of the Judgment

The First Department held:

• Jurisdictional limit & due process: After ordering the children remanded on October 24, 2022, ACS failed to file a petition against the mother within three court days. The children were thus “wrongfully detained,” and Family Court lacked subject matter jurisdiction to continue their temporary removal and placement once the three-day window elapsed without a pending petition (FCA §§ 1021, 1022; Matter of Jamie J. [Michelle E.C.], 30 NY3d 275, 283 [2017]; Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366 [2008]). The delay also violated the mother’s due process right to a prompt post-removal process (Matter of Elizabeth C. [Omar C.], 156 AD3d 193, 203–204 [2d Dept 2017]).
• Failure of proof: ACS did not prove neglect by a preponderance of the evidence. Its two witnesses gave materially conflicting accounts that did not match the pleaded theory; it failed to corroborate key assertions; it did not prove service of the TOP; it did not call readily available witnesses (including the father) or obtain the mother’s hospital records; and it offered no evidence of actual or imminent impairment to the children. The Court found that Family Court’s credibility determinations lacked a sound evidentiary basis and could not support a neglect finding.
• Pleading limits: Family Court may not base a neglect finding on unpleaded allegations. If the proof diverges, the pleadings must be conformed or amended with notice and an opportunity to respond (FCA § 1051[b]). That did not occur here. The Court emphasized that “absent additional allegations set forth in an amended petition that conforms to the proof with notice to the respondent, the court must not base a finding of neglect on allegations not set forth in the petition” (Matter of Elina M., 236 AD3d 25, 26 [2d Dept 2024]).

Relief: The Court reversed on the law and facts, vacated the neglect finding, dismissed the petition, and stayed the order for 30 days to allow an orderly transition of the children.

Case Timeline (Key Dates)

• September 20, 2022: ACS files petitions against the father alleging domestic violence; a TOP issues. No allegations against the mother.
• October 24, 2022: Children remanded to ACS and placed with paternal grandmother (M.H.). A second order of protection issues while father is living in M.H.’s home.
• December 1, 2022: ACS files amended petition alleging neglect by the mother—well after the three-court-day period.
• August 4, 2023: Fact-finding begins; ACS offers a copy of the TOP but no affidavit of service.
• December 4, 2023: Court consolidates FCA § 1028 return hearing with fact-finding; M.H. testifies; mother moves to dismiss.
• December 13, 2023 to March 13, 2024: Father and mother testify; Family Court finds neglect as to mother; dismisses mental health-based count; dismisses neglect as to father.
• April 10, 2024: Disposition order enters.
• August 14, 2025: First Department reverses; neglect vacated; petition dismissed; 30-day transition stay granted.

Detailed Analysis

1) Precedents Cited and Their Influence

• Matter of Jamie J. [Michelle E.C.], 30 NY3d 275 (2017): The Court of Appeals emphasized the strict statutory framework for emergency removals and the necessity for prompt judicial process. Here, the First Department relied on Jamie J. for two linked propositions: Family Court’s authority is bounded by statute, and a removal cannot be sustained absent timely filing and proper process. The Court also quoted Jamie J. later for the substantive standard: “Neglect findings cannot be casually issued, but require proof of actual or imminent harm to the child as a result of a parent's failure to exercise a minimum degree of care” (id. at 284).
• Matter of Johna M.S. v Russell E.S., 10 NY3d 364 (2008): Reinforces that Family Court is a tribunal of limited jurisdiction. The First Department used this to underscore that, once the statutory preconditions lapsed (no petition filed within three court days), Family Court’s power to continue removal ended.
• Matter of Elizabeth C. [Omar C.], 156 AD3d 193 (2d Dept 2017): Establishes that failure to provide a prompt hearing after removal can violate procedural due process. The First Department applied this due process lens to ACS’s delay, heightening the constitutional stakes of the statutory violation.
• Matter of R.C. [D.C.-R.R.], — AD3d —, 2025 NY Slip Op 01859 (1st Dept 2025): Warns against “end-runs around the protections of article 10,” emphasizing parents’ rights to notice of claims. The First Department invokes R.C. to reject procedural shortcuts and insist on scrupulous adherence to Article 10 safeguards.
• Nicholson v Scoppetta, 3 NY3d 357 (2004): A cornerstone domestic-violence-and-neglect decision. Nicholson holds that a child’s exposure to domestic violence is not presumptively neglect as against the abused parent, and that removal may often do more harm than good. The First Department used Nicholson to criticize efforts to penalize the mother for an alleged TOP violation while the father’s ongoing violations were overlooked, and to stress the requirement of actual or imminent harm.
• Matter of Jayvien E. [Marisol T.], 70 AD3d 430 (1st Dept 2010): Used below by Family Court (and noted on appeal) to reject proofless mental-health-based neglect allegations; reinforces that diagnosis, non-treatment, and impact must be proven, not presumed.
• Matter of Anastasia G., 52 AD3d 830 (2d Dept 2008): Supports the requirement that a preponderance of evidence—not speculation or uncorroborated hearsay—sustain neglect, and underscores that contradictory, uncorroborated proof is insufficient.
• Matter of Everett C. v Oneida P., 61 AD3d 489 (1st Dept 2009): While appellate courts defer to Family Court’s credibility findings, reversal is warranted where the determination lacks a “sound and substantial evidentiary basis.” The First Department invoked this to override Family Court’s unusual crediting of mutually inconsistent narratives.
• Pleading/notice authorities—FCA § 1051(b):
  • Matter of Shawniece E., 110 AD2d 900 (2d Dept 1985)
  • Matter of Vallery P. [Jondalla P.], 106 AD3d 575 (1st Dept 2013)
  • Matter of Richard S. [Lacey P.], 130 AD3d 630 (2d Dept 2015), lv denied 26 NY3d 906 (2015)
  • Matter of Elina M., 236 AD3d 25 (2d Dept 2024)
  Collectively, these cases make clear that courts cannot base findings on theories not pleaded without formal amendment or conforming the pleadings to the proof, accompanied by reasonable time for the respondent to prepare. The First Department applied these rigorously, rejecting Family Court’s apparent “restatement” of allegations in its decision without giving the mother the statutory notice and opportunity to respond.

2) The Court’s Legal Reasoning

The First Department’s reasoning proceeds in two layers: threshold jurisdiction and due process; then merits and procedure.

• Threshold jurisdiction and due process
  • Statutory deadline is jurisdictional: After the October 24, 2022 removal, ACS did not file a petition against the mother until December 1—long after the three-court-day limit in FCA §§ 1021 and 1022. That failure rendered the children “wrongfully detained” and, critically, stripped Family Court of subject matter jurisdiction to continue the removal or placement. The Court framed this not as a waivable defect but as a non-waivable jurisdictional limit it could address sua sponte (see also Matter of Brian L. v ACS, 51 AD3d 488, 500 n 6 [1st Dept 2008]).
  • Procedural due process violated: The mother was deprived of a timely post-removal process. The Court aligned the statutory violation with constitutional guarantees protecting parents against unjustified, prolonged separations from their children (Elizabeth C., 156 AD3d at 203–204).
  • No “end-runs” around Article 10: The Court cited its own recent decision in R.C. to reject informal short-cuts and underscore that notice and timely filing are essential components of the Article 10 framework.
• Merits: failure of pleading and proof
  • Burden remains on ACS; negative inference cannot fill gaps: Family Court drew an adverse inference against the mother for not producing hospital records. The First Department acknowledged ACS’s statutory burden and made clear that negative inferences do not relieve ACS of proving neglect by a preponderance of the evidence.
  • Contradictory, uncorroborated proof: ACS’s two witnesses (a CPS worker and the grandmother) provided inconsistent accounts that did not match the petition’s pleaded allegation that an “unidentified person” left the children at the grandmother’s home. ACS neither moved to amend nor to conform the pleadings; even had it done so, the internal contradictions and lack of corroboration would remain fatal.
  • No proof of service of the TOP or violation: ACS introduced a copy of the TOP but no affidavit of service; the mother denied service. The CPS worker’s testimony that she “dropped [the TOP] off” at the shelter, without proof of service, was insufficient to sustain the allegation that the mother violated the TOP.
  • Failure to investigate and present readily available evidence: ACS did not call the father to rebut the mother’s account, did not subpoena hospital records, did not call the shelter caseworker, and did not call the case planner whose hearsay statements surfaced through the CPS worker. The record was silent on any meaningful effort to corroborate or refute the mother’s detailed explanation.
  • No showing of actual or imminent harm: The decision underscores Nicholson and Jamie J.: neglect requires proof of actual or imminent harm caused by a failure to exercise a minimum degree of care. Here, ACS offered no evidence that the children faced harm while staying with their father and grandmother during a brief hospitalization; indeed, the 50-day delay in filing against the mother undermined any claim of imminent risk.
  • Credibility findings lacked evidentiary support: Although appellate courts generally defer to trial-level credibility determinations, the First Department found that Family Court’s crediting of mutually inconsistent versions “lacks a sound and substantial evidentiary basis” (Everett C., 61 AD3d at 489).
  • Pleading integrity under FCA § 1051(b): The First Department faulted Family Court for effectively relying on unpleaded theories without granting statutory notice and reasonable time to respond. It reaffirmed the rule that findings must be tethered to the petition, unless formally amended with procedural safeguards (Elina M., 236 AD3d at 26).

3) Impact and Prospective Significance

The decision has immediate and far-reaching consequences for Article 10 practice in New York:

• Jurisdictional checkpoint for removals: Agencies and courts must treat the three-court-day filing deadline as a jurisdictional prerequisite for continuing any removal or placement initiated without a petition against a particular parent. Once the window closes without a petition, the court cannot lawfully continue the removal.
• Due process rigor: The ruling amplifies procedural due process norms—timely filing, prompt hearings, and clear notice—as indispensable in child protection cases. Courts can expect increased motions challenging removals that outlast statutory limits or proceed without pleaded allegations against the parent from whom the child is removed.
• Evidence standards re-affirmed: The First Department’s insistence on corroboration, proof of service of protection orders, and proof of actual or imminent harm will likely raise the evidentiary bar in neglect trials, discouraging reliance on contradictory narratives and uncorroborated hearsay.
• Pleading discipline: Trial courts should be cautious about “conforming” pleadings without observing FCA § 1051(b)’s notice and preparation requirements. Practitioners should expect tighter enforcement of the rule that findings must track pleaded (or properly amended) allegations.
• Domestic violence context: Consistent with Nicholson, the decision discourages penalizing abused parents for alleged TOP violations (especially where service is not proven) or using exposure to domestic violence as a presumptive basis for neglect. The Court’s observation that ACS pursued the mother’s alleged TOP violation while declining to act on the father’s apparent violations invites agency self-scrutiny.
• Practice consequences:
  • For ACS: Institute strict filing controls; document service; proactively subpoena records; call key witnesses (including alleged co-parents); and move to amend or conform pleadings when proof diverges—while honoring FCA § 1051(b) notice.
  • For parent counsel: Scrutinize filing timelines; challenge jurisdiction where the three-day rule is breached; hold the agency to its burden; and resist findings based on unpleaded theories.
  • For Family Courts: Calendar and police the three-court-day deadline; require proof of service before considering purported protection-order violations; and ensure respondents receive the statutory time to respond to any post-proof amendment.

Complex Concepts Simplified

• Article 10 (Abuse/Neglect) Proceedings: New York’s statutory scheme for protecting children from abuse or neglect, with detailed procedures for emergency removals, petitions, and hearings.
• Three-court-day filing rule (FCA §§ 1021, 1022): When children are removed without a prior neglect petition against a parent, ACS must file a petition within three court days. Failure to do so deprives the court of authority to continue the removal as to that parent.
• Subject matter jurisdiction: A court’s legal power to hear a type of case. It cannot be waived or created by consent; if absent, any further orders are invalid.
• Temporary Order of Protection (TOP): A court order limiting contact or imposing conditions to protect individuals. Alleged violations by a parent require proof of service or actual notice; absent that, a breach cannot be assumed.
• Neglect (substantive standard): Requires proof, by a preponderance of the evidence, that a child’s physical, mental, or emotional condition has been impaired or is in imminent danger of impairment due to the parent’s failure to exercise a minimum degree of care. There is no presumption from domestic violence exposure against the abused parent (Nicholson).
• Conforming pleadings to proof (FCA § 1051[b]): If trial evidence differs from the allegations, the petitioner may seek to amend the petition or conform the pleadings. But the court must give the respondent reasonable time to prepare to meet the new allegations; findings cannot rest on unpleaded theories without this step.
• Negative inference: A trier of fact may sometimes infer that missing evidence would be unfavorable to the party who fails to produce it. However, in neglect cases, the agency still bears the burden of proof; a negative inference cannot substitute for missing core evidence.
• “End-run” around Article 10 protections: Shortcuts that bypass statutory safeguards—such as timely filing, proper notice, or prompt hearings—are impermissible. The First Department has recently emphasized this (R.C. [D.C.-R.R.]).

Conclusion

Matter of Kaius A. v. Abigail H. fortifies two pillars of New York child protection law: strict compliance with Article 10’s procedural architecture and rigorous adherence to substantive proof standards. The First Department’s central holding—that the three-court-day filing rule after removal is jurisdictional—places a bright-line constraint on continued removals absent a timely petition. The Court’s due process analysis underscores that prolonged removals without timely notice and hearing offend constitutional protections.

On the merits, the Court’s reversal reaffirms that neglect findings require credible, corroborated evidence of actual or imminent harm causally linked to a minimum-degree-of-care failure by the parent. Contradictory testimony, unproven service of a TOP, and speculation cannot bridge evidentiary gaps. And courts cannot cure pleading deficiencies by resting findings on unpleaded theories without giving respondents the notice and preparation time that FCA § 1051(b) demands.

The decision’s practical message is plain: adhere to statutory timelines, prove what you plead, and ground neglect findings in reliable evidence of harm. In doing so, Kaius A. advances the dual aims of Article 10—protecting children from genuine danger while safeguarding the fundamental rights of parents.