Bill S7213-2013

Provides for the protection of the children of parents who abuse other children for whom they are legally responsible

Provides for the protection of the children of parents who abuse other children for whom they are legally responsible.

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  • Jun 11, 2014: referred to children and families
  • Jun 11, 2014: DELIVERED TO ASSEMBLY
  • Jun 11, 2014: PASSED SENATE
  • Jun 2, 2014: ADVANCED TO THIRD READING
  • May 29, 2014: 2ND REPORT CAL.
  • May 28, 2014: 1ST REPORT CAL.1007
  • May 6, 2014: REFERRED TO CHILDREN AND FAMILIES

Meetings

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Votes

VOTE: COMMITTEE VOTE: - Children and Families - May 28, 2014
Ayes (6): Felder, Bonacic, Savino, Young, Montgomery, Tkaczyk

Memo

BILL NUMBER:S7213

TITLE OF BILL: An act to amend the family court act and the social services law, in relation to the liability for abuse of a child by a person legally responsible for such child

PURPOSE:

To provide for the protection of the children of parents who abuse other children for whom they are legally responsible.

SUMMARY OF PROVISIONS:

Section 1. Amends subdivision (j) of section 1012 of the family court act to expand the definition of "aggravated circumstances" to include a person legally responsible for a child.

Section 2. Amends paragraph (i) of subdivision (a) of section 1046 of the family court act to include "aggravated circumstances" in addition to proof of abuse or neglect as admissible evidence in legal proceedings to determine if other children - who are the legal responsibility of the perpetrator of aggravated abuse - to be in imminent risk of neglect, abuse or severe abuse.

Section 3. Amends paragraph (e) of subdivision 4 of section 384-b of the social services law to allow for a finding of severe abuse against a person who is not the parent of the target child in order to protect the children of that person; to allow that a termination of parental rights petition may be filed against a parent who has severely abused a child that they were not a parent of, but were legally responsible for, as it relates to freeing their own child for adoption; or to simply terminate the rights of that person to that child but without freeing the child for adoption.

Section 4. Amends subdivision 8 of section 384-b of the social services law to expand the definition of "severely abused" to include a person who is "legally responsible" for a child.

Section 5 is the enacting clause.

JUSTIFICATION:

In cases where children are murdered or suffer severe physical or sexual abuse, the perpetrator is often a person who is not the child's biological parent but a "person legally responsible" as that term is defined in FCA § 1012 (g). These individuals are often a stepparent or a paramour of one of the birth parents. While the law permits an action of abuse to be brought against such a person, the law is unclear if an aggravated circumstance of severe abuse petition can be brought. It is further unclear if the actual children of the abuser-who may be half siblings to the abused child-can be protected from their abusive parent. This is because the legal definition of aggravated severe abuse is found in SSL § 384-b, which relates only to parents as it describes the grounds of termination of parental rights.

In order to protect children from those who have severely abused (including murdered) a child they were responsible for, the

appropriate legal definitions must be clarified. Specifically, it must be clear that if a person has severely abused a child, then their own children can be subjects of derivative legal proceedings to help better protect those children.

Further, social services law must clarify that in such situations, there are grounds to terminate the parental rights of a person to their own children if they severely abused, including killed, a child that they were legally responsible for. In such cases, the court should be permitted to terminate the parental rights of a severe abuser-including when the subject child is not in foster care, and in cases where the court is only terminating the parental rights of the severely abusive parent.

These cases, while small in number, are the ones that make the headlines in this state and result in great frustration to the law enforcement, social services district and the courts who scramble to try to protect the children of a person who severely abused a child they were responsible for although not the parent. Many Judges have recognized the loophole in the law, in fact calling for the legislature to resolve the problem. See Matter of Meridth DS 13 Misc 3d 898 (Chemung County Family Court 2009), Matter of Nicholas S., 107 AD3d 1307, foot note #3 (3rd Dept. 2013), Matter of Leonard V 95 AD3d 1343 (2nd Dept. 2012)

LEGISLATIVE HISTORY:

New Bill.

FISCAL IMPLICATIONS:

Undetermined.

EFFECTIVE DATE:

This bill shall take effect the sixtieth day after is shall have become law.


Text

STATE OF NEW YORK ________________________________________________________________________ 7213 IN SENATE May 6, 2014 ___________
Introduced by Sen. FELDER -- 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 social services law, in relation to the liability for abuse of a child by a person legally responsible for such child THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. 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 AND PROVIDED FOR in subdivi- sion eight of section three hundred eighty-four-b of the social services law, BY A PARENT OR BY A PERSON LEGALLY RESPONSIBLE FOR SUCH CHILD OR ANOTHER CHILD; 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, BEING EITHER THE CHILD'S PARENT OR A PERSON LEGALLY RESPONSIBLE FOR SUCH CHILD OR ANOTHER CHILD, in each of the foregoing proceedings was the same; or where the court finds by clear and convinc- ing 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 admis- sion 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 inde- pendently 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 sched- ule, such failure shall not constitute an aggravated circumstance; or where a court has determined a child five days old or younger was aban- doned 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 2. Paragraph (i) of subdivision (a) of section 1046 of the family court act, as added by chapter 962 of the laws of 1970, is amended to read as follows: (i) proof of the AGGRAVATED CIRCUMSTANCES, abuse or neglect of one child shall be admissible evidence on the issue of the AGGRAVATED CIRCUMSTANCES, abuse or neglect of any other child of, or the legal responsibility of, the respondent; and S 3. Paragraph (e) of subdivision 4 of section 384-b of the social services law, as amended by section 56 of part A of chapter 3 of the laws of 2005, is amended to read as follows: (e) The parent or parents, whose consent to the adoption of the child would otherwise be required in accordance with section one hundred elev- en of the domestic relations law, severely or repeatedly abused such child OR ANY CHILD FOR WHOM SUCH PARENT IS OR HAS BEEN A PERSON LEGALLY RESPONSIBLE, AS DEFINED IN SUBDIVISION (G) OF SECTION ONE THOUSAND TWELVE OF THE FAMILY COURT ACT. Where a court has determined that reasonable efforts to reunite the child with his or her parent are not required, pursuant to the family court act or this chapter, OR WHERE THE CHILD WAS SEVERELY OR REPEATEDLY ABUSED IS NOT THE CHILD OF THE RESPOND- ENT IN THE TERMINATION PROCEEDING, a petition to terminate parental rights on the ground of severe abuse as set forth in subparagraph (iii) of paragraph (a) of subdivision eight of this section may be filed imme- diately upon such determination. S 4. Subdivision 8 of section 384-b of the social services law, as amended by chapter 7 of the laws of 1999, subparagraph (ii) of paragraph (a) and subparagraph (i) of paragraph (b) as amended by chapter 430 of the laws of 2013, clause (A) of subparagraph (iii) of paragraph (a) as amended by chapter 460 of the laws of 2006, paragraph (f) as amended by section 58 of part A of chapter 3 of the laws of 2005, is amended to read as follows: 8. (a) For the purposes of this section a child is "severely abused" by his or her parent OR BY A RESPONDENT WHO IS OR WAS A PERSON LEGALLY RESPONSIBLE, AS DEFINED IN SUBDIVISION (G) OF SECTION ONE THOUSAND TWELVE OF THE FAMILY COURT ACT, FOR A CHILD, if (i) the child has been found to be an abused child as a result of reckless or intentional acts of the parent OR SUCH PERSON committed under circumstances evincing a depraved indifference to human life, which result in serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law; or (ii) the child has been found to be an abused child, as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's OR PERSON LEGALLY RESPON- SIBLE'S acts; provided, however, the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law and, for the purposes of this section the corroboration requirements contained in the penal law shall not apply to proceedings under this section; or
(iii) (A) the parent of such child OR A PERSON LEGALLY RESPONSIBLE, AS DEFINED IN SUBDIVISION (G) OF SECTION ONE THOUSAND TWELVE OF THE FAMILY COURT ACT, has been convicted of murder in the first degree as defined in section 125.27, murder in the second degree as defined in section 125.25, manslaughter in the first degree as defined in section 125.20, or manslaughter in the second degree as defined in section 125.15, and the victim of any such crime was another child of the parent or another child for whose care such parent is or has been legally responsible as defined in subdivision (g) of section one thousand twelve of the family court act, or another parent of the child, unless the convicted parent was a victim of physical, sexual or psychological abuse by the decedent parent and such abuse was a factor in causing the homicide; or has been convicted of an attempt to commit any of the foregoing crimes, and the victim or intended victim was the child or another child of the parent or another child for whose care such parent is or has been legally responsible as defined in subdivision (g) of section one thousand twelve of the family court act, or another parent of the child, unless the convicted parent was a victim of physical, sexual or psychological abuse by the decedent parent and such abuse was a factor in causing the attempted homicide; (B) the parent of such child has been convicted of criminal solicitation as defined in article one hundred, conspiracy as defined in article one hundred five or criminal facilitation as defined in article one hundred fifteen of the penal law for conspiring, solicit- ing or facilitating any of the foregoing crimes, and the victim or intended victim was the child or another child of the parent or another child for whose care such parent is or has been legally responsible; (C) the parent of such child has been convicted of assault in the second degree as defined in section 120.05, assault in the first degree as defined in section 120.10 or aggravated assault upon a person less than eleven years old as defined in section 120.12 of the penal law, and the victim of any such crime was the child or another child of the parent or another child for whose care such parent is or has been legally respon- sible; or has been convicted of an attempt to commit any of the forego- ing crimes, and the victim or intended victim was the child or another child of the parent or another child for whose care such parent is or has been legally responsible; or (D) the parent of such child has been convicted under the law in any other jurisdiction of an offense which includes all of the essential elements of any crime specified in clause (A), (B) or (C) of this subparagraph; and (iv) IN THE CASE WHERE THE CHILD, WHO IS THE SUBJECT OF THE PETITION, IS IN FOSTER CARE, the agency has made diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foreseeable future. Where a court has previously determined in accordance with this chapter or the family court act that reasonable efforts to make it possible for the child to return safely to his or her home are not required, the agency shall not be required to demonstrate diligent efforts as set forth in this section. (b) For the purposes of this section a child is "repeatedly abused" by his or her parent OR BY A RESPONDENT WHO IS OR WAS A PERSON LEGALLY RESPONSIBLE AS DEFINED IN SUBDIVISION (G) OF SECTION ONE THOUSAND TWELVE OF THE FAMILY COURT ACT, FOR A CHILD, if: (i) the child has been found to be an abused child, (A) as defined in paragraph (i) of subdivision (e) of section ten hundred twelve of the
family court act, as a result of such parent's OR PERSON LEGALLY RESPON- SIBLE'S acts; or (B) as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law; and (ii) (A) the child or another child for whose care such parent is or has been legally responsible has been previously found, within the five years immediately preceding the initiation of the proceeding in which such abuse is found, to be an abused child, as defined in paragraph (i) or (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, in the case of a finding of abuse as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75 and 130.80 of the penal law, or (B) the parent has been convicted of a crime under section 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75 or 130.80 of the penal law against the child, a sibling of the child or another child for whose care such parent is or has been legally respon- sible, within the five year period immediately preceding the initiation of the proceeding in which abuse is found; and (iii) the agency has made diligent efforts, to encourage and strength- en the parental relationship, IF THE RESPONDENT IS THE CHILD'S PARENT, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foresee- able future. Where a court has previously determined in accordance with this chapter or the family court act that reasonable efforts to make it possible for the child to return safely to his or her home are not required, the agency shall not be required to demonstrate diligent efforts as set forth in this section. (c) Notwithstanding any other provision of law, the requirements of paragraph (g) of subdivision three of this section shall be satisfied if one of the findings of abuse pursuant to subparagraph (i) or (ii) of paragraph (b) of this subdivision is found to be based on clear and convincing evidence. (d) A determination by the court in accordance with article ten of the family court act based upon clear and convincing evidence that the child was a severely abused child as defined in subparagraphs (i) and (ii) of paragraph (a) of this subdivision shall establish that the child was a severely abused child in accordance with this section. Such a determi- nation by the court in accordance with article ten of the family court act based upon a fair preponderance of evidence shall be admissible in any proceeding commenced in accordance with this section. (e) A determination by the court in accordance with article ten of the family court act based upon clear and convincing evidence that a child was abused (A) as defined in paragraph (i) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; or (B) as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70,
130.75 and 130.80 of the penal law shall establish that the child was an abused child for the purpose of a determination as required by subpara- graph (i) or (ii) of paragraph (b) of this subdivision. Such a determi- nation by the court in accordance with article ten of the family court act based upon a fair preponderance of evidence shall be admissible in any proceeding commenced in accordance with this section. (f) Upon a finding pursuant to paragraph (a) or (b) of this subdivi- sion that the child has been severely or repeatedly abused by his or her parent OR BY A PERSON LEGALLY RESPONSIBLE, AS DEFINED BY SUBDIVISION (G) OF SECTION ONE THOUSAND TWELVE OF THE FAMILY COURT ACT, FOR A CHILD, the court shall enter an order of disposition either (i) committing the guardianship and custody of the child OR ANY CHILD OF SUCH PARENT, pursuant to this section, or (ii) suspending judgment in accordance with section six hundred thirty-three of the family court act, upon a further finding, based on clear and convincing, competent, material and relevant evidence introduced in a dispositional hearing, that the best interests of the child require such commitment or suspension of judgment, OR (III) TERMINATING THE RIGHTS OF ONE PARENT WHERE THE CHILD WILL BE IN THE CUSTODY OF ANOTHER PARENT, A RELATIVE OR THE LOCAL COMMISSIONER OF SOCIAL SERVICES. Where the disposition ordered is the commitment of guardianship and custody pursuant to this section, an initial freed child permanency hearing shall be completed pursuant to section one thousand eighty-nine of the family court act. (G) A PETITION FILED PURSUANT TO THIS SUBDIVISION MAY ALSO BE FILED WHERE A CHILD IS THE CHILD OF A RESPONDENT WHO SEVERELY ABUSED OR REPEATEDLY ABUSED A CHILD FOR WHOM HE OR SHE WAS A PERSON LEGALLY RESPONSIBLE, AS DEFINED IN SUBDIVISION (G) OF SECTION ONE THOUSAND TWELVE OF THE FAMILY COURT ACT. (H) A PETITION MAY BE FILED PURSUANT TO THIS SUBDIVISION WHEN THE SEVERELY OR REPEATEDLY ABUSED CHILD IS NOT IN FOSTER CARE AND/OR WHEN ONLY ONE OF SUCH CHILD'S PARENTS IS A RESPONDENT. S 5. This act shall take effect on the sixtieth day after it shall have become a law.

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