Bill S2738-2011

Relates to evidence of child neglect where respondent is enrolled in drug rehabilitation program

Relates to evidence of child neglect where respondent is enrolled in drug rehabilitation program.

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  • Jan 4, 2012: REFERRED TO CHILDREN AND FAMILIES
  • Jan 31, 2011: REFERRED TO CHILDREN AND FAMILIES

Memo

BILL NUMBER:S2738

TITLE OF BILL: An act to amend the family court act, in relation to evidence of child neglect where the respondent is voluntarily and regularly participating in a recognized drug rehabilitation program and requiring enrollment in rehabilitative programs

PURPOSE: To make enrollment in a drug program a factor at the dispositional phase of a child neglect proceeding rather than an affirmative defense to a finding of neglect.

SUMMARY OF PROVISIONS: Section one amends subparagraph (B) of paragraph (i) of subdivision (f) of section 1012 of the Family Court Act to delete the language related to participation in a rehabilitation program, together with the presumption related to participation in such program.

Section two amends paragraph (iii) of subdivision (a) of section 1046 of the Family Court Act to delete the language related to the exception provided by participation in a rehabilitation program.

Section three adds a new subdivision (d) to section 1052 of the Family Court Act to provide that, following an adjudication of neglect where the respondent has been found to be misusing drugs or alcoholic beverages to the extent that self-control of his or her actions is lost, the court shall at the time of the final order of disposition, take into consideration the enrollment and satisfactory participation of the respondent in a recognized rehabilitation program, and the court may in connection with such order of disposition require the respondent to enroll and participate in such a pro gram.

EXISTING LAW: Provides that enrollment in a drug rehabilitation program is an affirmative defense to a finding of child neglect on drug abuse grounds.

JUSTIFICATION: Under current legislation, the respondent's voluntary and regular participation in a recognized rehabilitation program would exclude a presumption of neglect of the child in care, even where there has been evidence of repeated misuse of drugs or alcoholic beverages. Voluntary attendance in such a program is no assurance that drug or alcohol abuse has ceased as the respondent may still get obtain controlled substances on the streets. Also, the respondent may have returned to the misuse of drug and alcohol after completion of a rehabilitation program.

This exclusion of the normal presumption is confusing to child protective workers, lawyers and the courts and acts against the interests of children. It is unclear how the exception affects the burden of proof and whether participation in a rehabilitation program is a defense to an allegation of child neglect. This confusion has

been exacerbated as the number of neglect and abuse allegations involving drug use by a parent has increased enormously in recent years.

This legislation would clarify the law by retaining the presumption that misuse of drugs or alcohol constitutes a prima facie case of abuse or neglect. The participation of the parent in a rehabilitation program would be considered by the judge at disposition, along with other factors. The participation in the program would not, and should not, constitute a rebuttal of the presumption. It would be subject to the determination, based on the preponderance of the evidence, of what is in the best interest of the child. Further, the court may order the respondent, as part of the disposition, to enroll in a rehabilitation program to receive needed treatment.

LEGISLATIVE HISTORY: 2007-2008: S.1075 - Referred to Social Services, Children and Families 2005-2006: S.467 - Referred to Social Services, Children and Families 2003-2004: S.1917 - Passed Senate 2001-2002: S.395 - Passed Senate 2000: S.2722 - Passed Senate 1997-98: S.489 - Passed Senate 1995-96: S.2104 - Passed Senate 1993-94: S.3379 - Passed Senate

FISCAL IMPLICATIONS: None.

LOCAL FISCAL IMPLICATIONS: None.

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


Text

STATE OF NEW YORK ________________________________________________________________________ 2738 2011-2012 Regular Sessions IN SENATE January 31, 2011 ___________
Introduced by Sen. SALAND -- 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, in relation to evidence of child neglect where the respondent is voluntarily and regularly participat- ing in a recognized drug rehabilitation program and requiring enroll- ment in rehabilitative programs THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subparagraph (B) of paragraph (i) of subdivision (f) of section 1012 of the family court act, as amended by chapter 984 of the laws of 1981, is amended to read as follows: (B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substan- tial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court[; provided, however, that where the respondent is voluntarily and regularly participating in a rehabilitative program, evidence that the respondent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he loses self-control of his actions shall not estab- lish that the child is a neglected child in the absence of evidence establishing that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as set forth in paragraph (i) of this subdivision]; or S 2. Paragraph (iii) of subdivision (a) of section 1046 of the family court act, as amended by chapter 984 of the laws of 1981, is amended to read as follows: (iii) proof that a person repeatedly misuses a drug or drugs or alco- holic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor,
unconsciousness, intoxication, hallucination, disorientation, or incom- petence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child [except that such drug or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is volun- tarily and regularly participating in a recognized rehabilitative program]; and S 3. Section 1052 of the family court act is amended by adding a new subdivision (d) to read as follows: (D) PRIOR TO GRANTING AN ORDER OF DISPOSITION IN A PROCEEDING WHEREIN THE RESPONDENT HAS BEEN FOUND TO HAVE MISUSED A DRUG OR DRUGS, OR TO HAVE MISUSED ALCOHOLIC BEVERAGES TO THE EXTENT THAT HE OR SHE LOSES SELF-CONTROL OF HIS OR HER ACTIONS, THE COURT SHALL CONSIDER WHETHER THE RESPONDENT HAS ENROLLED IN A RECOGNIZED REHABILITATIVE PROGRAM AND IS PARTICIPATING THEREIN IN A REGULAR AND SATISFACTORY MANNER, AND THE COURT MAY REQUIRE THE RESPONDENT TO ENROLL IN AND PARTICIPATE IN SUCH A PROGRAM IN CONNECTION WITH ANY ORDER OF DISPOSITION MADE UNDER SUBDIVI- SION (A) OF THIS SECTION. S 4. This act shall take effect on the one hundred twentieth day after it shall have become a law.

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