Bill S5054-2015

Relates to severe child abuse and orders of protection in child abuse and neglect cases

Relates to severe child abuse and orders of protection in child abuse and neglect cases.

Details

Actions

  • Jun 15, 2015: returned to senate
  • Jun 15, 2015: passed assembly
  • Jun 15, 2015: ordered to third reading rules cal.298
  • Jun 15, 2015: substituted for a7644
  • Jun 11, 2015: referred to codes
  • Jun 11, 2015: DELIVERED TO ASSEMBLY
  • Jun 11, 2015: PASSED SENATE
  • May 20, 2015: ADVANCED TO THIRD READING
  • May 19, 2015: 2ND REPORT CAL.
  • May 18, 2015: 1ST REPORT CAL.693
  • Apr 29, 2015: REFERRED TO CHILDREN AND FAMILIES

Votes

VOTE: COMMITTEE VOTE: - Children and Families - May 18, 2015
Ayes (7): Felder, Bonacic, Savino, Serino, Young, Montgomery, Serrano

Memo

BILL NUMBER:S5054

TITLE OF BILL:

An act to amend the family court act and the executive law, in relation to severe child abuse and orders of protection in child abuse and neglect cases

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Family Court Advisory and Rules Committee.

Two serious limitations hamper Family Court's ability to fulfill its statutory mandate to "help protect children from injury and maltreatment and to help safeguard their physical, mental, and emotional well-being." Family Court Act § 1011. A series of amendments to statutory provisions regarding severe and repeated child abuse have left one significant gap in law unaddressed, that is, the lack of authorization for Family Court to render an enhanced finding with respect to a respondent in a child abuse case who is not a parent of the child. Moreover, Executive Law § 221-a specifically excludes orders of protection issued in child abuse and neglect cases from entry onto the statewide automated registry of orders of protection and warrants. The instant measure would rectify both of these gaps in the law.

Termination of parental rights on the grounds of severe or repeated child abuse was added to Social Services Law § 384-b in 1981, but these grounds were rarely utilized because of inherent difficulties in the statute. Since an initial child abuse finding need only be proven by a preponderance of the evidence, it could not be utilized to obviate the need to retry the abuse issue in a later termination of parental rights proceeding, since the latter requires proof by clear and convincing evidence. Cf, Family Court Act § 1046(b)(i) and Social Services Law § 384-b(3)(g). In 1999, the Legislature authorized Family Court, in an original child abuse case designated as "severe," to render an enhanced finding pursuant to Family Court Act §§ 1046(b)(ii) and 1051(e) by clear and convincing evidence. L. 1999, c. 7. Most recently, the Legislature in 2013 clarified that the enhanced finding could relate solely to abuse itself and need not include finding that the agency had exercised diligent efforts to reunify the family, since the latter element could either be proven or dispensed with in the subsequent termination of parental rights proceeding. See Family Court Act § 1039-b; Social Services Law § 384-b(7)(e) (L.2013, c. 430). This series of amendments has helped Family Court to provide critical protections for children who are victims of severe and/or repeated abuse; but they do not address to whom the enhance finding could relate.

This measure would provide that the enhanced finding of severe or repeated child abuse that may be made at an original child protective proceeding under Article 10 of the Family Court Act may be rendered with respect to any individual against whom a child protective proceeding could be brought. Section 1012(a) of the Family Court Act defines a respondent as a "any parent or other person legally responsible for a child's care who is alleged to have abused or neglected such child." Abuse charges are often brought with respect to

"persons legally responsible," that is, boyfriends, girlfriends and others who live in the home but are not biological parents of the abused child. Family Court Act § 1012(g) defines a "person legally responsible" as "the child's custodian, guardian, or any other person responsible for the child's care at the relevant time. A custodian may be any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child." The Court of Appeals, in Matter of Yolanda D., 88 N.Y.2d 790 (1996), clarified that a "person legally responsible" is an individual who "acts as the functional equivalent of a parent in a familial or household setting, in essence, as "in loco parentis." The Court enumerated factors to be considered in the fact-specific assessment of whether an individual is a "person legally responsible," including, inter alia, the "frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child's environment, the duration of the respondent's contact with the child, and the respondent's relationship to the child's parent(s)." The Court cautioned that Family Court Act Article 10 "should not be construed to include persons who assume fleeting or temporary care of a child such as a supervisor of a play-date or an overnight visitor or those persons who provide extended daily care of children in institutional settings, such as teachers." See also Matter of Carmelo G, Misc. 3d-, 2014 NY Slip Op. 51703 (Unrep.)(Fam. Ct., Bronx Co., Dec. 14, 2014).

However, because Social Services Law § 384-b, the termination of parental rights statute, provides that such proceedings may only be brought against parents, several court decisions have held that enhanced findings of severe or repeated child abuse may only be made in an original child abuse proceeding under Article 10 of the Family Court Act against parents as well The Supreme Court, Appellate Division, in Matter of Leonardo V, 95 A D.3d 1343 (2nd Dept., 2012), upheld an enhanced finding of severe abuse against a father regarding his biological child, following his conviction for homicide of the child's mother, but reversed the enhanced finding that had been made against him regarding the child's half-sibling, because he was a person legally responsible for, but not the parent of, the half-sibling. Likewise, the Appellate Division, Third Department, has held that "severe abuse requires acts committed by a parent." See Matter of Tiarra D; Washington County Dept. of Social Services v. Philip C., -A.D.3d-, 2015 N.Y. Slip Op. 00272 (3rd Dept., Jan. 8, 2015); Matter of Nicholas S (John T.) , 107 A.D 3d 1307, 1311 n 3 (2013), leave app. denied, 22 N.Y.3d 854 (2013). In Matter of Yamilette G , 33 Misc. 3d 841 (Fam. Ct., Kings Co., 2009), the Family Court made findings of both derivative child abuse and severe abuse against a mother of a surviving child after she and her "paramour" were convicted of homicide of the child's half-sibling. However, because the "paramour" was the parent of the deceased child, but not the surviving child, Family Court made only a derivative abuse finding, but not an enhanced severe abuse finding, against the paramour. In both of these cases, the identical homicidal conduct resulted in disparate consequences. Additionally, in Matter of Meredith DD, 13 Misc. 3d 894 (Fam. Ct., Chemung Co., 2013), Family Court held that it was precluded from making an enhanced finding of severe abuse in a serious case of long-standing child sexual abuse, because the respondent, who lived in the home, was a person legally responsible for, but not the parent of, the abused child. Clearly, to

protect children from severe or repeated child abuse - and to protect later-born or other children from a repetition of serious and often felonious behavior - enhanced findings by clear and convincing evidence against both parents and persons legally responsible should be able to be made in initial child abuse proceedings pursuant to Family Court Act § 1051(e).

Equally important to realizing the precept articulated in sections 1011, 1039-b and 1052 of the Family Court Act that the safety of children before Family Court is paramount, Executive Law § 221-a should be amended to reverse the explicit exclusion of orders of protection issued under Article 10 of the Family Court Act from entry onto the statewide automated registry of orders of protection and warrants. This measure would require that all temporary and final orders of protection issued pursuant to Family Court Act §§ 1029 and 1056 be entered onto the statewide registry. The registry, established pursuant to the Family Protection and Domestic Violence Intervention Act of 1994 (L. 1994, cc. 222, 224), has become an invaluable tool both for law enforcement and the courts. It is essential that the registry be complete - that is, that it include all orders of protection issued by all courts in family and intimate partner violence cases - in order for it to fulfill its purpose of protecting all individuals, including children, from harm.

With approximately 2.7 million orders of protection in the database,{1} and with the database connected to the comprehensive national "Protection Order File" maintained by the National Crime Information Center (Federal Bureau of Investigation), the registry helps assure informed judgments at all stages of cases involving family and intimate partner violence. All too often, reports of violations of orders of protection are not taken seriously if the orders are not included on the registry, thus leaving victims and their families, even in cases of serious child abuse, without the shield of protection that the order should provide. Further, if a court, in determining whether an individual is suitable as a placement or custodial resource for a child or should be able to visit with a child in a neglect, abuse, custody or visitation case is not alerted to orders of protection issued against the individual in child protective proceedings, the child could suffer serious harm. Significantly, legislation enacted in 2008 and amended in 2009 requires that the registry be checked in all Family and Supreme Court cases of child custody and visitation, thus making the registry a critically important resource in these cases See L. 2008, c 595; L. 20 09, c. 295. All orders, including those in child protective proceedings, must be entered onto the registry in order for it to provide the protection necessary for all victims of family violence. Law enforcement and courts must have confidence in the completeness and accuracy of the responses to their inquiries regarding both the existence of outstanding orders, including possibly conflicting orders, and the parties' histories of compliance with past orders of protection.

The importance of inclusion of these orders on the registry cannot be overstated. Domestic violence is often inextricably linked with child abuse and victims of domestic violence in child abuse and neglect cases, including victims who may be respondents in these proceedings, require as much protection from their abusers as in other

proceedings.{2} If a child neglect proceeding is brought against an abuser, the order of protection issued to protect both the abuse victim and the children should provide as much protection as orders of protection issued in family offense and all other cases - a principle that compels inclusion of the order on the statewide domestic violence registry and, consequently, on the Federal "Protection Order File" as well. That domestic violence and child abuse frequently coexist in homes has been widely recognized, with estimates of the overlap ranging from 40% to 60%.{3} Research has estimated that children are abused at a rate 1,500 times higher than the national average in homes where domestic violence is also present.{4} Significantly, child sexual abuse has also been closely correlated with domestic violence.{5}

Protection of children against severe abuse demands that Family Court be able to render findings of severe abuse against all individuals against whom child protective proceedings may be filed, including "persons legally responsible," as well as parents. Further, inclusion of orders of protection in such cases, as well as in all child protective cases, on the statewide registry is essential to advance the Legislature's goal of providing an integrated response in all family violence cases and of protecting all victims of domestic abuse, both parents and children, from suffering further harm.

This measure, which would have no fiscal impact upon the State, would take effect on the ninetieth day after it shall have become a law. Legislative History: None. New proposal.

{1} Source: NYS Office of Court Administration Division of Technology (Dec., 2014).

{2} Victims of domestic violence may not be charged with child neglect by reason of their children's exposure to domestic violence, unless they have failed to exercise a minimum degree of care and unless the child is thereby placed in imminent risk of impairment Nicholson v. Scoppetta, 3 N,Y.3d 357 (2004) However, there are respondents in neglect and abuse proceedings, who are themselves also victims of family offenses, who should be able to obtain protection for themselves and their children without the burden of initiating separate family offense proceedings in order to obtain this relief

{3} See "The Impact of Domestic Violence on Children: A Report to the President of the American Bar Association" (Amer, Bar Assoc., 1994), p. 18; "Diagnostic and Treatment Guidelines on Domestic Violence" (Amer. Medical Assoc., 1992). See also M, Fields, "The Impact of Spouse Abuse on Children, and its Relevance in Custody and Visitation Decisions in New York State," 3 Cornell J. of Law and Pub, Policy 222, 224 (1994); A, Jones, Next Time She'll be Dead 84 (1994) (citing, E. Stark and A. Flitcraft, "Women and Children at Risk: A Feminist Perspective on Child Abuse," 18 Intl. J Health Services 1:97 (1988); L. McKibben, et al , "Victimization of Mothers of Abused Children: A Controlled Study," 84 Pediatrics #3 (1989); L. Walker, The Battered Woman Syndrome 59 (1984)).

{4} "The Violence Against Women Act of 1990: Hearings on S 2754," Senate Committee on the Judiciary, Report 1-545, 101st Cong., 2d Sess

37 (1990)(cited in J. Zorza, "Woman Battering: A Major Cause of Homelessness," Clearinghouse Review (Special Issue, 1991))

{5} L. Hoff, Battered Women as Survivors 240 (1990); M. Roy, Children in the Crossfire 89-90 (1988); Hewitt and Friedrich, "Effects of Probable Sexual Abuse on Preschool Children," in M.Q Patton, ed, Family Sexual Abuse .5974 (1991) (cited in J. Zorza, supra, at 424-425).


Text

STATE OF NEW YORK ________________________________________________________________________ 5054 2015-2016 Regular Sessions IN SENATE April 29, 2015 ___________
Introduced by Sen. FELDER -- (at request of the Office of Court Adminis- tration) -- 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 executive law, in relation to severe child abuse and orders of protection in child abuse and neglect cases THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (e) of section 1051 of the family court act, as amended by chapter 430 of the laws of 2013, is amended to read as follows: (e) If the court makes a finding of abuse, it shall specify the para- graph or paragraphs of subdivision (e) of section one thousand twelve of this act which it finds have been established. If the court makes a finding of abuse as defined in paragraph (iii) of subdivision (e) of section one thousand twelve of this act, it shall make a further finding of the specific sex offense as defined in article one hundred thirty of the penal law. In addition to a finding of abuse, the court may enter a finding of severe abuse or repeated abuse, as defined in subparagraphs (i), (ii) and (iii) of paragraph (a) or subparagraphs (i) and (ii) of paragraph (b) of subdivision eight of section three hundred eighty-four-b of the social services law, which shall be admissible in a proceeding to terminate parental rights pursuant to paragraph (e) of subdivision four of section three hundred eighty-four-b of the social services law; PROVIDED, HOWEVER, THAT A FINDING OF SEVERE OR REPEATED ABUSE UNDER THIS SECTION MAY BE MADE AGAINST ANY RESPONDENT AS DEFINED IN SUBDIVISION (A) OF SECTION ONE THOUSAND TWELVE OF THIS ACT. If the court makes such additional finding of severe abuse or repeated abuse, the court shall state the grounds for its determination, which shall be based upon clear and convincing evidence.
S 2. Subdivision 1 of section 221-a of the executive law, as separate- ly amended by sections 14 and 67 of part A of chapter 56 of the laws of 2010, is amended to read as follows: 1. The superintendent, in consultation with the division of criminal justice services, office of court administration, and the office for the prevention of domestic violence, shall develop a comprehensive plan for the establishment and maintenance of a statewide computerized registry of all orders of protection issued pursuant to articles four, five, six [and], eight AND TEN of the family court act, section 530.12 of the criminal procedure law and, insofar as they involve victims of domestic violence as defined by section four hundred fifty-nine-a of the social services law, section 530.13 of the criminal procedure law and sections two hundred forty and two hundred fifty-two of the domestic relations law, and orders of protection issued by courts of competent jurisdiction in another state, territorial or tribal jurisdiction, special orders of conditions issued pursuant to subparagraph (i) or (ii) of paragraph (o) of subdivision one of section 330.20 of the criminal procedure law inso- far as they involve a victim or victims of domestic violence as defined by subdivision one of section four hundred fifty-nine-a of the social services law or a designated witness or witnesses to such domestic violence, and all warrants issued pursuant to sections one hundred fifty-three and eight hundred twenty-seven of the family court act, and arrest and bench warrants as defined in subdivisions twenty-eight, twen- ty-nine and thirty of section 1.20 of the criminal procedure law, inso- far as such warrants pertain to orders of protection or temporary orders of protection; provided, however, that warrants issued pursuant to section one hundred fifty-three of the family court act pertaining to articles three[,] AND seven [and ten] of such act and section 530.13 of the criminal procedure law shall not be included in the registry. The superintendent shall establish and maintain such registry for the purposes of ascertaining the existence of orders of protection, tempo- rary orders of protection, warrants and special orders of conditions, and for enforcing the provisions of paragraph (b) of subdivision four of section 140.10 of the criminal procedure law. S 3. This act shall take effect on the ninetieth day after it shall have become a law.

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