This bill has been amended

Bill S1538-2011

Provides for transfer of guardianship and custody of infants abandoned pursuant to the abandoned infant protection act

Provides procedures for the care and custody of infants determined to be abandoned; creates process to facilitate freeing abandoned infants for adoption if a parent does not claim custody within statutory period.

Details

Actions

  • Jan 4, 2012: REFERRED TO CHILDREN AND FAMILIES
  • Jan 4, 2012: returned to senate
  • Jan 4, 2012: died in assembly
  • Jun 21, 2011: referred to judiciary
  • Jun 21, 2011: DELIVERED TO ASSEMBLY
  • Jun 21, 2011: PASSED SENATE
  • Jun 13, 2011: ORDERED TO THIRD READING CAL.1185
  • Jun 13, 2011: REPORTED AND COMMITTED TO RULES
  • Jun 7, 2011: REPORTED AND COMMITTED TO FINANCE
  • Jan 10, 2011: REFERRED TO CHILDREN AND FAMILIES

Meetings

Votes

VOTE: COMMITTEE VOTE: - Children and Families - Jun 7, 2011
Ayes (4): Johnson, Saland, Young, Savino
Nays (2): Montgomery, Duane
VOTE: COMMITTEE VOTE: - Rules - Jun 14, 2011
Ayes (21): Skelos, Alesi, Farley, Hannon, Johnson, Larkin, LaValle, Libous, Marcellino, Maziarz, Nozzolio, Saland, Seward, Sampson, Breslin, Dilan, Hassell-Thompson, Parker, Perkins, Smith, Stewart-Cousins
Ayes W/R (1): Montgomery
Nays (2): Duane, Krueger

Memo

BILL NUMBER:S1538

TITLE OF BILL: An act to amend the public service law, in relation to providing for unlisted telephone numbers without charge for certain victims of domestic violence

PURPOSE: This bill would allow for unlisted telephone numbers without charge for victims of domestic violence for whose benefit an order of protection has been issued.

SUMMARY OF PROVISIONS: Subdivision 7 of the bill would amend Section 91 of the public Service Law to provide victims of domestic violence for whose benefit an order of protection has been issued, other than a temporary order of protection, for the duration of such order, an unlisted telephone number from any directory of telephone numbers published by it or any and a affiliated companies, free of charge.

JUSTIFICATION: This bill corrects an existing discrepancy regarding orders of protection and victims of domestic violence. Our State has a duty, under the "Parent patre mantra", to protect those citizens seeking refuge and protection against their aggressors. Allowing aggressors to obtain unlisted/non private telephone numbers of their victims to harass, intimidate and sometimes coerce the victim circumvent the purpose of an order of protection. Recent reports that 44% of the women killed between 2003 and 2005 died at the hands of their boyfriends or spouses. That means that nearly half of all the women murdered in the city are killed by their intimate partners.

This proposed Amendment would provide the help that victims still need.

PRIOR LEGISLATIVE HISTORY: 2011-2012: Referred to Energy and Telecommunications 2009-2010: Referred to Energy and Telecommunications

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENT: None.

EFFECTIVE DATE: One hundred twenty days after it shall become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 1538 2011-2012 Regular Sessions IN SENATE January 10, 2011 ___________
Introduced by Sen. SKELOS -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families AN ACT to amend the family court act and the domestic relations law, in relation to abandoned infants THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 1012 of the family court act is amended by adding a new subdivision (f-1) to read as follows: (F-1) A CHILD IS AN "ABANDONED INFANT" WHEN THE COURT ENTERS AN ORDER PURSUANT TO SECTION ONE THOUSAND FIFTY-ONE-A OF THIS ARTICLE THAT SUCH CHILD IS NOT MORE THAN FIVE DAYS OLD AND HAS BEEN LEFT BY A PARENT IN A MANNER WHICH INDICATES INTENT TO SURRENDER AND RELINQUISH ALL RESPONSI- BILITY FOR THE CARE OF SUCH CHILD. S 2. Paragraph (ii) of subdivision (f) of section 1012 of the family court act, as amended by chapter 666 of the laws of 1976, is amended to read as follows: (ii) who has been abandoned, in accordance with the definition and other criteria set forth in subdivision five of section three hundred eighty-four-b of the social services law, by his OR HER parents or other person legally responsible for his OR HER care, BUT SHALL NOT INCLUDE AN ABANDONED INFANT AS DEFINED IN SUBDIVISION (F-1) OF THIS SECTION. S 3. Subdivision (j) of section 1012 of the family court act, as amended by section 3 of part B of chapter 3 of the laws of 2005, is amended to read as follows: (j) "Aggravated circumstances" means where a child has been either severely or repeatedly abused, as defined in subdivision eight of section three hundred eighty-four-b of the social services law; OR WHERE A CHILD HAS BEEN DETERMINED TO BE AN ABANDONED INFANT PURSUANT TO SECTION ONE THOUSAND FIFTY-ONE-A OF THIS ARTICLE; or where a child has subsequently been found to be an abused child, as defined in paragraph (i) or (iii) of subdivision (e) of this section, within five years after
return home following placement in foster care as a result of being found to be a neglected child, as defined in subdivision (f) of this section, provided that the respondent or respondents in each of the foregoing proceedings was the same; or where the court finds by clear and convincing evidence that the parent of a child in foster care has refused and has failed completely, over a period of at least six months from the date of removal, to engage in services necessary to eliminate the risk of abuse or neglect if returned to the parent, and has failed to secure services on his or her own or otherwise adequately prepare for the return home and, after being informed by the court that such an admission could eliminate the requirement that the local department of social services provide reunification services to the parent, the parent has stated in court under oath that he or she intends to continue to refuse such necessary services and is unwilling to secure such services independently or otherwise prepare for the child's return home; provided, however, that if the court finds that adequate justification exists for the failure to engage in or secure such services, including but not limited to a lack of child care, a lack of transportation, and an inability to attend services that conflict with the parent's work schedule, such failure shall not constitute an aggravated circumstance; or where a court has determined a child five days old or younger was abandoned by a parent with an intent to wholly abandon such child and with the intent that the child be safe from physical injury and cared for in an appropriate manner. S 4. Section 1042 of the family court act, as amended by chapter 41 of the laws of 2010, is amended to read as follows: S 1042. Effect of absence of parent or other person responsible for care. If the parent or other person legally responsible for the child's care is not present, the court may proceed to hear a petition under this article only if the child is represented by counsel. The parent or other person legally responsible for the child's care shall be served with a copy of the order of disposition with written notice of its entry pursu- ant to section one thousand thirty-six of this article. Within one year of such service or substituted service pursuant to section one thousand thirty-six of this article, the parent or other person legally responsi- ble for the child's care may move to vacate the order of disposition and schedule a rehearing. Such motion shall be granted on an affidavit show- ing such relationship or responsibility and a meritorious defense to the petition, unless THE CHILD HAS BEEN DECLARED AN ABANDONED INFANT PURSU- ANT TO SECTION ONE THOUSAND FIFTY-ONE-A OF THIS ARTICLE AND THE PARENTS HAVE FAILED TO ASSERT A CLAIM OF CUSTODY WITHIN THE TIME PERIOD SET FORTH IN SUCH SECTION, OR the court finds that the parent or other person willfully refused to appear at the hearing, in which case the court may deny the motion. S 5. Paragraph (ii) of subdivision (b) of section 1055 of the family court act, as amended by section 18 of part A of chapter 3 of the laws of 2005, is amended to read as follows: (ii) (A) Upon placing a child under the age of one, who has been aban- doned AS DEFINED IN PARAGRAPH (II) OF SUBDIVISION (F) OF SECTION ONE THOUSAND TWELVE OF THIS ARTICLE, with a local commissioner of social services, the court shall, where either of the parents do not appear after due notice, include in its order of disposition pursuant to section one thousand fifty-two of this part, a direction that such commissioner shall promptly commence a diligent search to locate the child's non-appearing parent or parents or other known relatives who are legally responsible for the child, and to commence a proceeding to
commit the guardianship and custody of such child to an authorized agen- cy pursuant to section three hundred eighty-four-b of the social services law, six months from the date that care and custody of the child was transferred to the commissioner, unless there has been commu- nication and visitation between such child and such parent or parents or other known relatives or persons legally responsible for the child. In addition to such diligent search the local commissioner of social services shall provide written notice to the child's parent or parents or other known relatives or persons legally responsible as provided for in this paragraph. Such notice shall be served upon such parent or parents or other known relatives or persons legally responsible in the manner required for service of process pursuant to section six hundred seventeen of this act. Information regarding such diligent search, including, but not limited to, the name, last known address, social security number, employer's address and any other identifying informa- tion to the extent known regarding the non-appearing parent, shall be recorded in the uniform case record maintained pursuant to section four hundred nine-f of the social services law. (B) AN ABANDONED INFANT, AS DEFINED IN SUBDIVISION (F-ONE) OF SECTION ONE THOUSAND TWELVE OF THIS ARTICLE, SHALL NOT BE SUBJECT TO THE REQUIREMENTS OF SUBPARAGRAPH (A) OF THIS PARAGRAPH. S 6. The family court act is amended by adding a new section 1031-a to read as follows: S 1031-A. ABANDONED INFANTS. (A) A PROCEEDING TO DETERMINE WHETHER A CHILD IS AN ABANDONED INFANT SHALL BE COMMENCED WITHIN SIX BUSINESS DAYS OF A LOCAL COMMISSIONER OF SOCIAL SERVICES RECEIPT OF NOTIFICATION THAT A CHILD ALLEGED TO BE AN ABANDONED INFANT HAS BEEN FOUND IN THE JURIS- DICTION OF THE LOCAL SOCIAL SERVICES AGENCY. (B) THE PETITION SHALL ALLEGE THE FACTS SURROUNDING THE HISTORY AND CURRENT CUSTODY OF THE CHILD, INCLUDING BUT NOT LIMITED TO: (I) THE LOCATION THE CHILD WAS SURRENDERED OR ABANDONED; (II) THE DATE OF SUCH OCCURRENCE; (III) THE AFFIDAVIT OF THE LICENSED PHYSICIAN CERTIFYING SUCH PHYSI- CIAN'S DETERMINATION AS TO THE AGE OF THE INFANT; (IV) THE NAMES AND ADDRESSES OF ANY PROSPECTIVE FOSTER CARE OR ADOP- TIVE HOMES; AND (V) ANY OTHER INFORMATION THAT WOULD FACILITATE THE COURT'S DETERMI- NATION. (C) THE PETITION SHALL ALSO MAKE AN APPLICATION PURSUANT TO SECTION ONE THOUSAND THIRTY-NINE-B OF THIS PART FOR THE COURT TO DETERMINE THAT REASONABLE EFFORTS TO RETURN THE CHILD TO HIS OR HER HOME ARE NOT REQUIRED BASED UPON A FINDING THAT THE CHILD HAS BEEN DECLARED AN ABAN- DONED INFANT. (D) THE COURT SHALL APPOINT A LAW GUARDIAN TO REPRESENT THE INTERESTS OF ANY CHILD NAMED IN A PETITION WHO IS ALLEGED TO BE AN ABANDONED INFANT. (E) NO PROCEEDING MAY CONTINUE UNDER THIS SECTION UNLESS THE COURT ENTERS A FINDING: (I) THAT THE CHILD WAS NOT MORE THAN FIVE DAYS OLD AT THE TIME OF THE ABANDONMENT; AND (II) THAT THE PARENT LEFT THE CHILD IN A MANNER WHICH INDICATES INTENT TO SURRENDER AND RELINQUISH ALL RESPONSIBILITY FOR THE CARE OF SUCH CHILD. (F) ALL AUTHORITY GRANTED TO THE LOCAL COMMISSIONER OF SOCIAL SERVICES RELATING TO THE CARE AND CUSTODY OF THE INFANT PURSUANT TO THE SOCIAL SERVICES LAW SHALL CONTINUE UNTIL FURTHER ORDER OF THE COURT.
S 7. The family court act is amended by adding a new section 1051-a to read as follows: S 1051-A. SUSTAINING OR DISMISSING A PETITION ALLEGING AN ABANDONED INFANT. (A) IF FACTS SUFFICIENT TO SUSTAIN A PETITION UNDER SECTION ONE THOUSAND THIRTY-ONE-A OF THIS ARTICLE ARE ESTABLISHED, THE COURT SHALL ENTER AN ORDER FINDING THAT THE CHILD IS AN ABANDONED INFANT AND SHALL STATE IN ITS ORDER: (I) THAT, WITHIN A REASONABLE MEDICAL CERTAINTY, THE CHILD WAS NOT MORE THAN FIVE DAYS OLD WHEN HE OR SHE WAS ABANDONED; (II) THE DATE THE CHILD WAS BORN, WITHIN A REASONABLE MEDICAL CERTAIN- TY; (III) THAT THE CHILD WAS LEFT IN A MANNER THAT INDICATED HIS OR HER PARENT'S INTENT TO RELINQUISH RESPONSIBILITY FOR AND RIGHT TO THE CARE AND CUSTODY OF SUCH CHILD; (IV) THAT BASED UPON THE FINDINGS OF PARAGRAPHS (I) AND (III) OF THIS SUBDIVISION, THE CHILD IS AN ABANDONED INFANT PURSUANT TO SUBDIVISION (F-ONE) OF SECTION ONE THOUSAND TWELVE OF THIS ARTICLE; AND (V) THAT BASED UPON SUCH FINDING THAT THE CHILD IS AN ABANDONED INFANT, REASONABLE EFFORTS TO RETURN THE CHILD TO HIS OR HER HOME ARE NOT REQUIRED. (B) (I) IF FACTS SUFFICIENT TO SUSTAIN THE PETITION UNDER SECTION ONE THOUSAND THIRTY-ONE-A OF THIS ARTICLE ARE NOT ESTABLISHED DUE TO THE CHILD BEING MORE THAN FIVE DAYS OLD AT THE TIME OF ABANDONMENT THE COURT SHALL CONVERT THE PETITION TO A PROCEEDING TO DETERMINE NEGLECT PURSUANT TO SECTION ONE THOUSAND THIRTY-ONE OF THIS ARTICLE AND SHALL STATE ON THE RECORD THE GROUNDS FOR THE CONVERSION. TEMPORARY CUSTODY OF THE CHILD SHALL CONTINUE UNTIL FURTHER ORDER OF THE COURT. THE COURT SHALL ALSO REFER THE MATTER TO THE APPROPRIATE DISTRICT ATTORNEY'S OFFICE AND DIRECT THE LOCAL COMMISSIONER OF SOCIAL SERVICES TO ORIGINATE A PROCEED- ING UNDER SECTION ONE THOUSAND THIRTY-ONE OF THIS ARTICLE WITHIN SEVEN DAYS. (II) IF THE FACTS SUFFICIENT TO SUSTAIN THE PETITION UNDER THIS SECTION ARE NOT ESTABLISHED DUE TO AN INABILITY TO DETERMINE THE INTENT OF THE PARENT OR PARENTS THEN THE COURT SHALL CONVERT THE PETITION TO A PROCEEDING TO DETERMINE NEGLECT PURSUANT TO SECTION ONE THOUSAND THIR- TY-ONE OF THIS ARTICLE AND SHALL STATE ON THE RECORD THE GROUNDS FOR THE CONVERSION. TEMPORARY CUSTODY OF THE CHILD SHALL CONTINUE UNTIL FURTHER ORDER OF THE COURT. FOR THE PURPOSES OF THIS PARAGRAPH, ABANDONMENT IN THE MANNER PRESCRIBED BY SECTION 260.00 OF THE PENAL LAW SHALL BE PRESUMPTIVE EVIDENCE OF INTENT TO SURRENDER AND RELINQUISH ALL RESPONSI- BILITY FOR THE CARE OF SUCH CHILD. (C) THE COURT SHALL COMMENCE A DISPOSITIONAL HEARING IMMEDIATELY UPON COMPLETION OF THE FACT-FINDING HEARING. AT THE CONCLUSION OF SUCH DISPO- SITIONAL HEARING THE COURT SHALL ENTER AN ORDER OF DISPOSITION: (I) PLACING THE CHILD IN THE CUSTODY OF THE LOCAL COMMISSIONER OF SOCIAL SERVICES IN ACCORD WITH THE PROVISIONS OF SECTION ONE THOUSAND FIFTY-FIVE OF THIS PART, UPON A DETERMINATION THAT: (A) CONTINUATION IN THE CHILD'S HOME WOULD BE CONTRARY TO THE BEST INTERESTS OF THE CHILD; AND (B) WHERE THE COURT HAS DETERMINED THAT THE CHILD IS AN ABANDONED INFANT, REASONABLE EFFORTS TO PREVENT OR ELIMINATE THE NEED FOR REMOVING THE CHILD FROM HIS OR HER HOME OR TO MAKE IT POSSIBLE FOR THE CHILD TO RETURN SAFELY TO HIS OR HER HOME ARE NOT REQUIRED; (II) REQUIRING THE LOCAL COMMISSIONER OF SOCIAL SERVICES TO COMMENCE A PROCEEDING TO COMMIT THE GUARDIANSHIP AND CUSTODY OF SUCH CHILD TO AN AUTHORIZED AGENCY PURSUANT TO SECTION THREE HUNDRED EIGHTY-FOUR-B OF THE
SOCIAL SERVICES LAW IN SIXTY DAYS, PROVIDED THAT NO PETITION HAS BEEN BROUGHT PURSUANT TO SECTION ONE THOUSAND SIXTY-ONE-A OF THIS ARTICLE. UPON RECEIVING SUCH PETITION, THE COURT SHALL SCHEDULE A DATE CERTAIN FOR THE FACT-FINDING AND DISPOSITIONAL HEARING REGARDING SUCH PETITION WHICH SHALL BE NINETY DAYS FROM THE DATE THAT THE CHILD WAS FOUND TO BE AN ABANDONED INFANT PURSUANT TO THIS SECTION; (III) REQUIRING THE LOCAL COMMISSIONER OF SOCIAL SERVICES TO CAUSE NOTICE OF THE PROCEEDING INSTITUTED PURSUANT TO SECTION THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW TO BE PUBLISHED IN ACCORDANCE WITH THE PROVISIONS OF RULE THREE HUNDRED SIXTEEN OF THE CIVIL PRACTICE LAW AND RULES IN THE COUNTY IN WHICH SUCH CHILD WAS FOUND. THE NOTICE SHALL STATE: (A) THE DATE, TIME AND PURPOSE OF THE PROCEEDING; (B) THE DATE, TIME AND PLACE THAT THE ABANDONED INFANT WAS FOUND; (C) A DESCRIPTION OF THE INFANT INCLUDING ITS APPROXIMATE DATE OF BIRTH; (D) THAT UPON FAILURE TO APPEAR, ALL PARENTAL RIGHTS OF THE PARENTS OF SUCH ABANDONED INFANT SHALL BE TERMINATED; (E) THAT A PARENT'S FAILURE TO APPEAR SHALL CONSTITUTE A DENIAL OF HIS OR HER INTEREST IN THE CHILD, WHICH DENIAL SHALL RESULT, WITHOUT FURTHER NOTICE, IN THE COMMITMENT OF THE CUSTODY AND GUARDIANSHIP OF THE CHILD TO THE LOCAL COMMISSIONER OF SOCIAL SERVICES AND IN THE CHILD'S ADOPTION; AND (F) THE NAME, ADDRESS, AND TELEPHONE NUMBER OF THE PERSON DESIGNATED BY THE LOCAL COMMISSIONER OF SOCIAL SERVICES TO CONTACT FOR INFORMATION REGARDING SUCH CHILD. S 8. The family court act is amended by adding a new section 1061-a to read as follows: S 1061-A. CUSTODY CLAIM BY PARENT OF AN ABANDONED INFANT. (A) AT ANY TIME PRIOR TO THE CHILD BEING FREED FOR ADOPTION EITHER PARENT MAY INSTITUTE AN ACTION TO ASSERT A CLAIM FOR CUSTODY OF THE CHILD DECLARED AN ABANDONED INFANT PURSUANT TO SECTION ONE THOUSAND FIFTY-ONE-A OF THIS ARTICLE. SUCH PROCEEDING SHALL BE BROUGHT WITHIN THE COUNTY WHERE SUCH INFANT IS FOUND. SUCH PROCEEDING SHALL ORIGINATE BY PETITION AND SHALL NAME THE LOCAL COMMISSIONER OF SOCIAL SERVICES, AND BOTH THE PARENTS, IF KNOWN. IN THE EVENT THE WHEREABOUTS OF EITHER PARENT IS UNKNOWN THE PETITION SHALL SO STATE AND THE COURT MAY PROCEED IN SAID PARENT'S ABSENCE. A FILING OF A PETITION UNDER THIS SECTION SHALL TOLL THE TIME FOR FREEING THE CHILD FOR ADOPTION AS PROVIDED FOR IN SUBDIVISION (A) OF SECTION ONE THOUSAND FIFTY-ONE-A OF THIS ARTICLE. NOTICE SHALL BE SERVED UPON THE LAW GUARDIAN APPOINTED PURSUANT TO SUBDIVISION (D) OF SECTION ONE THOUSAND THIRTY-ONE-A OF THIS ARTICLE. IN DETERMINING CUSTO- DY OF THE INFANT THE COURT SHALL CONSIDER THE BEST INTEREST OF THE CHILD. PENDING A DETERMINATION IN THIS MATTER, THE INFANT SHALL REMAIN IN THE CARE AND CUSTODY OF THE LOCAL COMMISSIONER OF SOCIAL SERVICES UNLESS THE COURT DIRECTS OTHERWISE. (B) IN THE EVENT THAT PETITIONER WHO ALLEGES TO BE A PUTATIVE FATHER, RECITES IN A PETITION, FILED IN THE COUNTY WHEREIN HE RESIDES, FACTS THAT ALLEGE HE IS THE FATHER OF AN INFANT WHOSE WHEREABOUTS ARE UNKNOWN DUE TO THE CONCEALMENT AND PROBABLE ABANDONMENT OF THE RESPONDENT MOTH- ER, THE PETITION MAY BE SERVED UPON THE MOTHER SEEKING AS ITS SOLE REME- DY, THE LOCATION WHERE THE INFANT WAS ABANDONED. RESPONDENT MOTHER MAY THEN AVOID APPEARING IN COURT BY FILING A SWORN STATEMENT WITHIN TEN DAYS DISCLOSING THE LOCATION THE CHILD WAS ABANDONED. A COURT MAY COMPEL, BY THE POWERS OF CONTEMPT, THE DISCLOSURE OF THE INFANT'S WHERE- ABOUTS. UPON DISCLOSURE OF THE INFANT'S LOCATION THE PETITION TO ASSERT
THE CLAIM OF CUSTODY SHALL BE TRANSFERRED TO THE COUNTY WHEREIN THE INFANT IS RESIDING FOR FURTHER PROCEEDINGS. (C) THE RECORDS AND DISCOVERY PROCEDURES SET FORTH IN SECTION ONE THOUSAND THIRTY-EIGHT OF THIS ARTICLE SHALL BE APPLICABLE TO A PROCEED- ING UNDER THIS SECTION. (D) FAILURE OF A PARENT TO ASSERT A CLAIM FOR CUSTODY UNDER THIS SECTION WITHIN THE SPECIFIED TIME PERIOD SHALL IRREVOCABLY FREE THE CHILD FOR ADOPTION AND ANY ALLEGED PARENT WILL LOSE ALL RIGHTS AT THE END OF THE NINETY DAY PERIOD WITHOUT FURTHER NOTICE. S 9. Paragraph (e) of subdivision 2 of section 111 of the domestic relations law, as amended by chapter 375 of the laws of 1997, is amended and a new paragraph (f) is added to read as follows: (e) who has executed an instrument, which shall be irrevocable, deny- ing the paternity of the child, such instrument having been executed after conception and acknowledged or proved in the manner required to permit the recording of a deed[.]; OR (F) WHERE SUCH CHILD IS DETERMINED TO BE AN ABANDONED INFANT PURSUANT TO SECTION ONE THOUSAND THIRTY-ONE-A OF THE FAMILY COURT ACT. S 10. This act shall take effect on the sixtieth day after it shall have become a law.

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