S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4563

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 5, 2009
                               ___________

Introduced by M. of A. MAYERSOHN, NOLAN, CANESTRARI, PERRY, GALEF, HOOP-
  ER,  GABRYSZAK -- Multi-Sponsored by -- M. of A. ALFANO, BARRA, McENE-
  NY, SEMINERIO, SWEENEY, WEPRIN  --  read  once  and  referred  to  the
  Committee on Children and Families

AN  ACT  to  amend  the social services law and the family court act, in
  relation to proof of a neglected or abused child

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Legislative  findings. The legislature finds and declares
that infants who are born  drug-exposed  and  drug-addicted  must  be  a
priority  of our state's public health and child welfare systems.  Ille-
gal drug addiction in pregnant women and corresponding fetal drug  expo-
sure  is an epidemic that has expanded in virtually geometric proportion
since the 1980's with the advent of cheap,  smokeable  free  base  crack
cocaine.
  A large body of professional literature from the fields of pediatrics,
obstetrics and the social sciences has documented a multi-million dollar
problem  whose  effect on a generation of young Americans is still being
discovered. Unfortunately, the laws and jurisprudence of  the  state  of
New  York  have  failed  to  adequately  and  appropriately address this
burgeoning crisis.
  The legislature further finds  and  declares  that  illegal  drug  use
during pregnancy creates a high degree of risk that newborns will exhib-
it  neurobehavioral and circulatory health complications.  These compli-
cations include neurological defects, learning disabilities, low  cogni-
tion, physical and developmental delay, and low birth weight.
  Moreover,  other  states  have  recognized  in  utero drug exposure as
correlative to the likelihood of further abuse  or  neglect  during  the
child's infancy. Such recognition has led to statutory revisions causing
in  utero  drug  exposure  to  be presumptive evidence of child abuse or

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04502-01-9

              

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neglect and  thereby  warranting  immediate  child  protective  services
intervention.
  The  intervention  of  the state into the integrity of the family unit
should be exercised cautiously. However, where the very life and  safety
of  the  most  vulnerable  segment of society is in question, the inter-
vention of the state must be aggressive and consistent.
  Under the current appellate case law in this state, proof  of  illegal
drug  abuse  during  pregnancy  as  manifested  by a positive toxicology
report for drugs in the child  is  insufficient  in  and  of  itself  to
support  a  fact finding of child neglect under article 10 of the family
court act.
  Current New York state office of children and family  services  policy
states:     "Evidence  that  a  newborn  infant  tests  positive  for  a
drug.....in its bloodstream or urine; is born dependent on drugs or with
drug withdrawal symptoms....; or has been diagnosed as having  a  condi-
tion  which may be attributable to in utero exposure to drugs.....is not
sufficient, in and of itself, to support a determination that the  child
is  mistreated. In addition, such evidence alone is not sufficient for a
social service district to take protective custody of such a child."
  As a consequence, a positive  toxicology  report,  without  additional
supporting  evidence,  may  not  be used to "indicate" a report of child
abuse or maltreatment  to  the  State  Central  Register  of  Abuse  and
Maltreatment.    This  policy creates an unacceptable risk to New York's
most vulnerable citizens: newborn infants.
  At present, infants born with such a positive toxicology must, without
additional evidence of neglect, be  discharged  home  without  mandating
support,  supervision  or intervention - only to await the occurrence of
other neglect, injury or even death  before  protective  action  can  be
taken.
  While intending to protect children, laws that essentially require the
child to be injured or harmed before help is offered are fatally flawed.
The  tragic  consequences of such defective laws are needless and avoid-
able particularly when at the time of birth authorities are aware of  an
immediate problem.
  The  legislature finds that more than sufficient research and scholar-
ship exist to find the strongest possible causation between illegal drug
use during pregnancy and risk to the health and welfare of a  child.  It
is  therefore  the intent of this legislature that proof of illegal drug
use during pregnancy as manifested by a positive toxicology  report  is,
in  and of itself, the basis for a prima facie finding that the child is
a neglected child.
  S 2. Subdivision 4-a of section 371 of the  social  services  law,  as
added  by chapter 782 of the laws of 1971, subparagraph (B) of paragraph
(i) as amended by chapter 984 of the laws of 1981, is amended to read as
follows:
  4-a. "Neglected child" means a child less than eighteen years of age
  (i) whose physical, mental or emotional condition has been impaired or
is in imminent danger of becoming impaired as a result of the failure of
his OR HER parent or other person legally responsible  for  his  OR  HER
care to exercise a minimum degree of care
  (A)  in  supplying  the  child  with adequate food, clothing, shelter,
education, medical or surgical care, though financially able to do so or
offered financial or other reasonable means to do so; or
  (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

A. 4563                             3

punishment; or by misusing a drug or drugs;  or  by  misusing  alcoholic
beverages  to the extent that he OR SHE loses self-control of his OR HER
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 OR SHE loses  self-control  of
his  OR  HER  actions  shall not establish 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 THIS paragraph [(i) of this  subdi-
vision]; or
  (ii)  WHO,  AS  A  NEWBORN  INFANT,  TESTS  POSITIVE  FOR A CONTROLLED
SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR  HER  BLOODSTREAM  OR
URINE,  IS  BORN DEPENDENT ON SUCH DRUGS OR DEMONSTRATES DRUG WITHDRAWAL
SYMPTOMS, OR HAS BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT-
ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS; OR
  (III) who has been abandoned by his OR HER  parents  or  other  person
legally responsible for his OR HER care.
  S 3. Subdivision (f) of section 1012 of the family court act, as added
by chapter 962 of the laws of 1970, subparagraph (A) of paragraph (i) as
amended  by  chapter  469 of the laws of 1971, subparagraph (B) of para-
graph (i) as amended by chapter 984 of the laws of  1981  and  paragraph
(ii)  as  amended by chapter 666 of the laws of 1976, is amended to read
as follows:
  (f) "Neglected child" means a child less than eighteen years of age
  (i) whose physical, mental or emotional condition has been impaired or
is in imminent danger of becoming impaired as a result of the failure of
his OR HER parent or other person legally responsible  for  his  OR  HER
care to exercise a minimum degree of care
  (A)  in  supplying  the child with adequate food, clothing, shelter or
education in accordance with the  provisions  of  part  one  of  article
sixty-five  of  the  education  law, or medical, dental, optometrical or
surgical care, though financially able to do so or offered financial  or
other reasonable means to do so; or
  (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 OR SHE loses self-control of his OR  HER
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 OR SHE loses self-control of
his OR HER actions shall not establish 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 THIS paragraph [(i) of this subdi-
vision]; or
  (ii) WHO, AS  A  NEWBORN  INFANT,  TESTS  POSITIVE  FOR  A  CONTROLLED
SUBSTANCE  NOT  PRESCRIBED  BY A PHYSICIAN, IN HIS OR HER BLOODSTREAM OR
URINE, IS BORN DEPENDENT ON SUCH DRUGS OR DEMONSTRATES  DRUG  WITHDRAWAL
SYMPTOMS, OR HAS BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT-
ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS; OR

A. 4563                             4

  (III)    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.
  S  4.  Subdivision  (b)  of  section  1028 of the family court act, as
amended by chapter 145 of the laws  of  2000,  is  amended  to  read  as
follows:
  (b) In determining whether temporary removal of the child is necessary
to  avoid  imminent  risk to the child's life or health, the court shall
consider and determine in its order whether continuation in the  child's
home  would  be  contrary  to  the best interests of the child and where
appropriate, whether reasonable efforts were made prior to the  date  of
the  hearing  to  prevent or eliminate the need for removal of the child
from the home and where appropriate,  whether  reasonable  efforts  were
made  after  removal  of  the child to make it possible for the child to
safely return home.
  IN A CASE INVOLVING A NEWBORN INFANT TESTING POSITIVE FOR A CONTROLLED
SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR  HER  BLOODSTREAM  OR
URINE, BORN DEPENDENT ON SUCH DRUGS, DEMONSTRATING DRUG WITHDRAWAL SYMP-
TOMS,  OR HAVING BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT-
ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS, SUCH  STATUS  OF  THE  CHILD
SHALL  ESTABLISH A REBUTTABLE PRESUMPTION THAT THE RELEASE OF THE INFANT
TO THE PARENT PRESENTS AN IMMINENT DANGER TO THE CHILD'S LIFE OR HEALTH.
  S 5. Paragraphs (vii) and (viii) of subdivision (a) of section 1046 of
the family court act, paragraph (vii) as amended by chapter 432  of  the
laws  of  1993 and paragraph (viii) as added by chapter 1015 of the laws
of 1972, are amended and a new  paragraph  (ix)  is  added  to  read  as
follows:
  (vii)  neither  the privilege attaching to confidential communications
between husband and wife, as set forth in section forty-five hundred two
of the civil practice law  and  rules,  nor  the  physician-patient  and
related  privileges,  as set forth in section forty-five hundred four of
the civil practice law and rules, nor the psychologist-client privilege,
as set forth in section forty-five hundred seven of the  civil  practice
law  and  rules, nor the social worker-client privilege, as set forth in
section forty-five hundred eight of the civil practice  law  and  rules,
nor  the rape crisis counselor-client privilege, as set forth in section
forty-five hundred ten of the civil practice law and rules, shall  be  a
ground  for  excluding  evidence which otherwise would be admissible[.];
AND
  (viii) proof of the "impairment of emotional health" or "impairment of
mental or emotional condition" as  a  result  of  the  unwillingness  or
inability  of the respondent to exercise a minimum degree of care toward
a child may include  competent  opinion  or  expert  testimony  and  may
include  proof  that  such  impairment lessened during a period when the
child was in the care, custody or supervision  of  a  person  or  agency
other than the respondent[.]; AND
  (IX)  PROOF  THAT  A  NEWBORN  INFANT  TESTS POSITIVE FOR A CONTROLLED
SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR  HER  BLOODSTREAM  OR
URINE,  IS  BORN  DEPENDENT  ON SUCH DRUGS, DEMONSTRATES DRUG WITHDRAWAL
SYMPTOMS, OR HAS BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT-
ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS SHALL BE PRIMA FACIE PROOF OF
NEGLECT.
  S 6. Subdivision (d) of section 1051  of  the  family  court  act,  as
amended  by  chapter  478  of  the  laws  of 1988, is amended to read as
follows:

A. 4563                             5

  (d) If the court makes a finding of abuse or neglect, it shall  deter-
mine,  based  upon the facts adduced during the fact-finding hearing and
any other additional facts presented to it, whether a preliminary  order
pursuant  to  section  one  thousand  twenty-seven  OF  THIS  ARTICLE is
required  to  protect  the  child's  interests  pending a final order of
disposition. The court shall state the grounds for its determination. In
addition, a child found to be abused or neglected  may  be  removed  and
remanded  to  a  place  approved  for  such  purpose by the local social
services department or be placed in the custody of  a  suitable  person,
pending a final order of disposition, if the court finds that there is a
substantial  probability  that the final order of disposition will be an
order of placement under section one thousand fifty-five OF  THIS  PART.
In  determining  whether substantial probability exists, the court shall
consider the requirements of subdivision (b)  of  section  one  thousand
fifty-two  OF  THIS PART.  PROVIDED, HOWEVER, THAT IN A CASE INVOLVING A
NEWBORN  INFANT  TESTING  POSITIVE  FOR  A  CONTROLLED   SUBSTANCE   NOT
PRESCRIBED  BY  A  PHYSICIAN,  IN  HIS OR HER BLOODSTREAM OR URINE, BORN
DEPENDENT ON SUCH DRUGS,  DEMONSTRATING  DRUG  WITHDRAWAL  SYMPTOMS,  OR
HAVING  BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUTABLE TO IN
UTERO EXPOSURE TO ILLEGAL DRUGS, SUCH STATUS OF THE CHILD  SHALL  ESTAB-
LISH  A  REBUTTABLE  PRESUMPTION  THAT  THE RELEASE OF THE INFANT TO THE
PARENT PRESENTS AN IMMINENT DANGER TO THE CHILD'S LIFE OR HEALTH.
  S 7. This act shall take effect immediately.