NY State Senate Bill 2017-S238

Senate Bill S238

2017-2018 Legislative Session

Relates to assisting and protecting victims of domestic violence, child abuse and child neglect

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Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to children and families
Jun 21, 2017	committed to rules
Apr 24, 2017	advanced to third reading
Apr 09, 2017	2nd report cal.
Apr 04, 2017	1st report cal.544
Jan 04, 2017	referred to children and families

Votes

- Apr 4, 2017 - Children And Families Committee Vote
  S238
  
  6
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: Apr 4, 2017
      
      aye (6)
      
      Avella
      
      Helming
      
      Montgomery
      
      Persaud
      
      Savino
      
      Serino
      
      aye wr (1)
      
      Bonacic

co-Sponsors

2017-S238 (ACTIVE) - Details

See Assembly Version of this Bill:: A2369
Current Committee:: Senate Children And Families
Law Section:: Social Services Law
Laws Affected:: Amd §422, Soc Serv L; amd §160.55, CP L; add §4549, CPLR
Versions Introduced in Other Legislative Sessions:: 2013-2014: S6868, A8505
2015-2016: S1447, A1802
2019-2020: A2063

2017-S238 (ACTIVE) - Summary

Relates to assisting and protecting victims of domestic violence, child abuse and child neglect.

2017-S238 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S238

 TITLE OF BILL :

An act to amend the social services law, the criminal procedure law
and the civil practice law and rules, in relation to assisting and
protecting victims of domestic violence, child abuse and child neglect

 PURPOSE OR GENERAL IDEA OF BILL :

Relates to assisting and protecting victims of domestic violence,
child abuse and child neglect

 SUMMARY OF PROVISIONS :

Section one of the bill provides the Legislative intent.

Section two of the bill amends Social Services Law section
422(5)(a)(iv) and (v) to provide that sealed unfounded reports may be
unsealed and made available on judicial subpoena of the Family Court
or Supreme Court where an order of protection of a child or a false
allegation of child abuse or neglect is at issue and the subject of
the report is a party to the action.

Section three of this bill amends subdivision 7 of section 422 of the
Social Services Law to allow guardians and custodians of a person

named in a report that is included in the Central Register, as well as
the Family Court and Supreme Court where an order of protection of a
child or a false allegation of child abuse or neglect is at issue, are
authorized to receive, upon request, a copy of all of the information
in the Central Register.

Section four of this bill amends Social Service Law section
422(8)(a)(i) and (b)(i) and (ii) to provide that if the subject of a
report requests that the report be amended, the victim's parent,
guardian or custodial shall receive notice of the subject's request to
amend and have the ability to object to the amendment. Section four
also adds a new paragraph (f) to Social Services Law section 422(8)
that would allow an adult victim or a minor victim's parent, guardian
or custodian to seek to vacate an amendment to the report.

Section five of this bill amends Criminal Procedure Law section
160.55(1)(d) to provide that all records related to an arrest or
prosecution shall be available upon receipt of a judicial subpoena
from the Family Court or Supreme Court hearing a matter where domestic
violence, child abuse or neglect is at issue and the defendant is a
party to the Court action.

Section six of this bill adds a new section 4549 to the Civil Practice
Law and Rules to provide that uncorroborated previous statements made
by a child relating to allegations of domestic violence or child abuse
or neglect shall not be sufficient to fact-finding of abuse or
neglect. Any other evidence to support the reliability of the child's
statement will be admissible and will constitute sufficient
corroboration. The testimony of the child will not be necessary to
make a fact-finding of domestic violence, abuse or neglect.

Section seven of this bill provides that this act shall take effect
immediately.

 EXISTING LAW :

Currently, a person convicted of harassment, which is only a violation
under the penal law, is provide an automatic seal on their criminal
record. In subsequent proceedings between the victim of the harassment
and the convicted aggressor, the record of the criminal court, the
police arrest and investigation, and the aggressor's conviction, are
not available to the victim to prove that the domestic violence
occurred; making it difficult for the victim to protect themselves
against further aggression or obtain justice in family court or other
civil proceedings.

 JUSTIFICATION :

All information must be reviewed within a case in order to make a
truly well balanced decision. If information pertinent to the
party(ies) is "sealed," the determination/judgment may be inaccurate
and possibly biased. It is our hope that this legislation will protect
all parties involved; the victims of abuse, neglect, and domestic
violence as well as those who may be innocent who find themselves
falsely accused.

 PRIOR LEGISLATIVE HISTORY :

2016: S.1447-A - 3rd Reading Calendar
2015: S.1447 - Referred to Children and Families
2014: S.6868 - Referred to Children and Families

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect immediately.

2017-S238 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    238
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Children and Families
 
 AN ACT to amend the social services law, the criminal procedure law  and
   the  civil  practice  law  and  rules,  in  relation  to assisting and
   protecting victims of domestic violence, child abuse and child neglect
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Legislative  intent.  Presently,  a  person  convicted of
 harassment, which is only a violation under the  penal  law,  enjoys  an
 automatic  seal on his or her criminal record. Harassment often includes
 matters of domestic violence.  In  subsequent  proceedings  between  the
 victim  of  the  violence and the convicted aggressor, the record of the
 criminal court, the police arrest and investigation, and the aggressor's
 conviction, admissions or orders of protection in  the  criminal  matter
 are  not  available  to  the  victim to prove that the domestic violence
 occurred; making it difficult for  the  victim  to  protect  himself  or
 herself  against further aggression or obtain justice in family court or
 other civil proceedings. This act will  allow  the  victim  or  victim's
 representative  to  obtain  a judicial subpoena releasing such record to
 the family or supreme court.
   Likewise, where an investigation by child protective  services  "indi-
 cates" the abuse or neglect of a child, the state law allows the subject
 of the report the ability to amend the report to "unfounded" without any
 notice  or  opportunity  to  object  to the amendment being given to the
 victim of the abuse or  neglect.  As  a  result,  if  amended,  even  by
 default,  the victim or co-parent cannot access the record of the inves-
 tigation in subsequent family or supreme court  proceedings.    Further,
 the person previously "indicated" can use the amended report as a weapon
 against  the  opposing party to show that their allegation, or belief in
 the allegation, was frivolous. Even where  the  "indicated"  finding  is
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD03419-01-7

 S. 238                              2
 
 properly amended to "unfounded," and the accused was frivolously victim-
 ized  by  the  allegations  of  their  opposing party, the reporting law
 shields the  identity  of  the  false  reporter.  This  act,  therefore,
 protects  the victims of child abuse, child neglect and wrongful accusa-
 tions of child abuse and neglect by opening the records of  the  central
 registry by judicial subpoena.
   Finally,  the  state  legislature  enacted  a  hearsay  exception to a
 child's statements of abuse or neglect in section  1065  of  the  family
 court  act.  Justifiably, if not technically correct, the state's appel-
 late courts have expanded such section's exception to  custody,  divorce
 and  child support proceedings. However, this exception is not currently
 available in every matter where domestic violence, child abuse or  child
 neglect  may be at issue (i.e. surrogate court matters, tort actions, or
 family offenses). This act allows the judges, parens patria, to  provide
 further  protection  to  children  in  consideration of their particular
 emotional immaturity and fragility, while preventing convictions on only
 the allegations of a child.
   § 2. Subparagraphs (iv) and (v) of paragraph (a) of subdivision  5  of
 section  422 of the social services law, subparagraph (iv) as amended by
 chapter 555 of the laws of 2000 and subparagraph (v) as amended by chap-
 ter 256 of the laws of 2014, are amended to read as follows:
   (iv) to the subject of the report; [and]
   (v) to a district attorney, an assistant district attorney, an  inves-
 tigator  employed  in  the  office of a district attorney, or to a sworn
 officer of the division of state police, of  a  city,  county,  town  or
 village  police  department  or  of  a county sheriff's office when such
 official verifies that the report is  necessary  to  conduct  an  active
 investigation  or  prosecution  of  a  violation  of subdivision four of
 section 240.50 of the penal law; AND
   (VI) ON JUDICIAL SUBPOENA OF THE FAMILY OR  SUPREME  COURT  WHERE  THE
 PROTECTION OF A CHILD OR A FALSE ALLEGATION OF CHILD ABUSE OR NEGLECT IS
 AT ISSUE AND THE SUBJECT OF THE REPORT IS A PARTY TO AN ACTION THEREIN.
   §  3.  Subdivision  7  of  section  422 of the social services law, as
 amended by chapter 434 of the laws  of  1989,  is  amended  to  read  as
 follows:
   7.  At  any  time, a subject of a report [and], other persons named in
 the report OR THEIR GUARDIANS OR CUSTODIANS, AND THE FAMILY  OR  SUPREME
 COURT  BY JUDICIAL SUBPOENA AND WHERE THE PROTECTION OF A CHILD OR FALSE
 ALLEGATIONS OF CHILD ABUSE OR NEGLECT IS AT ISSUE AND THE SUBJECT OF THE
 REPORT IS A PARTY TO AN ACTION THEREIN, may  receive,  upon  request,  a
 copy  of  all  information  contained in the central register; provided,
 however, that the commissioner is authorized, EXCEPT WHEN THE REQUEST IS
 MADE BY JUDICIAL SUBPOENA AND THE REPORTER IS A PARTY TO THE ACTION,  to
 prohibit the release of data that would identify the person who made the
 report  or  who  cooperated in a subsequent investigation or the agency,
 institution, organization, program or other entity where such person  is
 employed  or with which he is associated, which he reasonably finds will
 be detrimental to the safety or interests of such person.
   § 4. Subparagraph (i) of paragraph (a) and subparagraphs (i) and  (ii)
 of  paragraph (b) of subdivision 8 of section 422 of the social services
 law, as amended by chapter 12 of the laws of 1996, are amended and a new
 paragraph (f) is added to read as follows:
   (i) At any time subsequent to the completion of the investigation  but
 in  no  event  later than ninety days after the subject of the report is
 notified that the report  is  indicated  the  subject  may  request  the
 commissioner  to amend the record of the report.  THE COMMISSIONER SHALL

 S. 238                              3
 
 MAIL TO THE  VICTIM'S  PARENT,  GUARDIAN  OR  CUSTODIAN  NOTICE  OF  THE
 SUBJECT'S  REQUEST  TO  AMEND  AND THE BASIS UPON WHICH THE AMENDMENT IS
 SOUGHT. SUCH PARENT, GUARDIAN OR CUSTODIAN MAY OBJECT TO  THE  AMENDMENT
 WITHIN  THIRTY  DAYS  OF  NOTICE  BY MAILING HIS OR HER OBJECTION TO THE
 COMMISSIONER. If the commissioner does not amend the report  in  accord-
 ance  with such request within ninety days of receiving the request, the
 subject shall have the right to a fair hearing, held in accordance  with
 paragraph  (b)  of  this subdivision, to determine whether the record of
 the report in the central register should be amended on the grounds that
 it is inaccurate or it is being maintained in a manner inconsistent with
 this title.
   (i) If the department, within ninety days of receiving a request  from
 the  subject  that the record of a report be amended, does not amend the
 record in accordance with such request, the department shall schedule  a
 fair  hearing  and shall provide notice of the scheduled hearing date to
 the subject, the statewide central register [and, as  appropriate,  to],
 the  child protective service or the state agency which investigated the
 report, THE ADULT VICTIM, OR THE  MINOR  VICTIM'S  PARENT,  GUARDIAN  OR
 CUSTODIAN.  SUCH  PARENT, GUARDIAN OR CUSTODIAN MAY APPEAR IN PERSON, OR
 BY AN ATTORNEY,  TO  OBJECT  TO  THE  REQUESTED  AMENDMENT  AND  PRESENT
 WITNESSES,  SWORN  STATEMENTS AND OTHER EVIDENCE FOR PRESENTATION TO THE
 HEARING OFFICER.
   (ii) The burden of proof in such a  hearing  shall  be  on  the  child
 protective  service  or  the state agency which investigated the report,
 THE ADULT VICTIM, OR THE MINOR VICTIM'S PARENT, GUARDIAN  OR  CUSTODIAN,
 as  the  case may be. In such a hearing, the fact that there is a family
 court finding of abuse or neglect against the subject in  regard  to  an
 allegation contained in the report shall create an irrebuttable presump-
 tion that said allegation is substantiated by some credible evidence.
   (F)  AN ADULT VICTIM, OR THE MINOR VICTIM'S PARENT, GUARDIAN OR CUSTO-
 DIAN MAY SEEK TO VACATE AN AMENDMENT MADE PURSUANT TO PARAGRAPH  (E)  OF
 THIS SUBDIVISION WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS PARAGRAPH
 OR  KNOWLEDGE  THAT SUCH AN AMENDMENT HAS BEEN MADE WITHOUT SUCH PARENT,
 GUARDIAN OR CUSTODIAN RECEIVING  NOTICE  OF  HEARING  OR  THE  SUBJECT'S
 REQUEST TO AMEND. THE ADULT VICTIM, OR THE MINOR VICTIM'S PARENT, GUARD-
 IAN  OR  CUSTODIAN  SEEKING TO VACATE AN UNNOTICED AMENDMENT SHALL STATE
 WITH PARTICULARITY THE DATE THAT THEY BECAME AWARE THAT AN AMENDMENT WAS
 MADE AND THE EVIDENCE HE OR  SHE  WILL  PRESENT  THAT  DEMONSTRATES  THE
 COMMISSIONER'S  ERROR  IN  AMENDMENT.  THE COMMISSIONER SHALL SCHEDULE A
 REHEARING DATE, AND SHALL IMMEDIATELY INFORM THE SUBJECT OF THE FORMERLY
 INDICATED REPORT, THE ADULT VICTIM OR MINOR VICTIM'S PARENT, GUARDIAN OR
 CUSTODIAN, AND THE CHILD PROTECTIVE SERVICE OR  THE  STATE  AGENCY  THAT
 INVESTIGATED THE REPORT.
   §  5. Paragraph (d) of subdivision 1 of section 160.55 of the criminal
 procedure law, as amended by chapter 449 of the laws of 2015, is amended
 to read as follows:
   (d) the records referred to in paragraph (c) of this subdivision shall
 be made available to the person accused or to such  person's  designated
 agent, and shall be made available to (i) a prosecutor in any proceeding
 in  which  the accused has moved for an order pursuant to section 170.56
 or 210.46 of this chapter, or (ii) a  law  enforcement  agency  upon  ex
 parte motion in any superior court, or in any district court, city court
 or  the  criminal court of the city of New York provided that such court
 sealed the record, if such agency demonstrates to  the  satisfaction  of
 the  court  that justice requires that such records be made available to
 it, or (iii) any state or local officer or  agency  with  responsibility

 S. 238                              4
 
 for  the issuance of licenses to possess guns, when the accused has made
 application for such a license, or (iv) the New York state department of
 corrections and community supervision when the accused is  under  parole
 supervision as a result of conditional release or parole release granted
 by  the  New  York  state  board  of  parole and the arrest which is the
 subject of the inquiry is one which occurred while the accused was under
 such supervision, or (v) the probation department responsible for super-
 vision of the accused when the  arrest  which  is  the  subject  of  the
 inquiry  is  one  which occurred while the accused was under such super-
 vision, or (vi) a police agency, probation department, sheriff's office,
 district attorney's office, department of correction of any municipality
 and parole department, for law  enforcement  purposes,  upon  arrest  in
 instances  in which the individual stands convicted of harassment in the
 second degree, as defined in section 240.26 of the penal law,  committed
 against  a  member  of the same family or household as the defendant, as
 defined in subdivision one of section 530.11 of this chapter, and deter-
 mined pursuant to subdivision eight-a of section 170.10 of  this  title,
 OR  (VII) UPON RECEIPT OF A JUDICIAL SUBPOENA, THE FAMILY OR THE SUPREME
 COURT IN A MATTER WHERE DOMESTIC VIOLENCE, THE PROTECTION OF A CHILD, OR
 A FALSE ALLEGATION OF DOMESTIC VIOLENCE, ABUSE OR NEGLECT  IS  AT  ISSUE
 AND THE DEFENDANT IS A PARTY TO THE ACTION THEREIN; and
   §  6.  The  civil  practice  law  and rules is amended by adding a new
 section 4549 to read as follows:
   § 4549. EVIDENCE OF CHILD'S STATEMENTS  REGARDING  DOMESTIC  VIOLENCE,
 ABUSE OR NEGLECT. 1. PREVIOUS STATEMENTS MADE BY A CHILD RELATING TO ANY
 ALLEGATIONS  OF  DOMESTIC  VIOLENCE  OR  CHILD ABUSE OR NEGLECT SHALL BE
 GENERALLY ADMISSIBLE IN EVIDENCE, BUT IF UNCORROBORATED, SUCH  STATEMENT
 SHALL  NOT BE SUFFICIENT TO MAKE A FACT-FINDING OF ABUSE OR NEGLECT. ANY
 OTHER EVIDENCE TENDING TO SUPPORT THE RELIABILITY OF THE CHILD'S  PREVI-
 OUS  STATEMENTS  SHALL  BE  GENERALLY  ADMISSIBLE AND SUFFICIENT CORROB-
 ORATION. THE TESTIMONY OF THE CHILD SHALL NOT BE  NECESSARY  TO  MAKE  A
 FACT-FINDING OF DOMESTIC VIOLENCE, ABUSE OR NEGLECT.
   2.  THE  PRESIDING  JUDGE MAY, HOWEVER, ISSUE AN ORDER PROHIBITING THE
 DIVULGING OF THE CONTENTS OF SUCH STATEMENTS TO  ANY  ENTITY  OR  PERSON
 OTHER  THAN  THE  COURT, LITIGANTS, THEIR COUNSEL AND ANY WITNESS DEEMED
 NECESSARY TO THE PROCEEDINGS.
   § 7. This act shall take effect immediately.

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Senate Bill S238

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Sponsored By

Martin J. Golden