senate Bill S6375

Broadens the scope of child abuse and neglected child to include proof of a positive controlled substance toxicology report on a newborn infant

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 21 / Jan / 2014
    • REFERRED TO CHILDREN AND FAMILIES

Summary

Broadens the scope of child abuse and neglected child to include proof of a positive controlled substance toxicology report on a newborn infant; presence of such controlled substances establishes a rebuttable presumption that the release of the infant to the parent presents an imminent danger to the child's health or life.

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Bill Details

See Assembly Version of this Bill:
A2408
Versions:
S6375
Legislative Cycle:
2013-2014
Current Committee:
Senate Children And Families
Law Section:
Social Services Law
Laws Affected:
Amd §371, Soc Serv L; amd §§1012, 1028, 1046 & 1051, Fam Ct Act

Sponsor Memo

BILL NUMBER:S6375

TITLE OF BILL: An act to amend the social services law and the family
court act, in relation to proof of a neglected or abused child

PURPOSE: To provide that when a mother uses illegal drugs during her
pregnancy causing her infant to be born with positive toxicity for
such drugs that this is proof of neglect.

SUMMARY OF PROVISIONS:

Section 1 sets forth the Legislative findings which recognize the
state's public health and child welfare interest in intervening when a
child tests positive for illegal drugs after birth.

Section 2 amends subdivision 4-a of section 371 of the social services
law in regard to expanding the definition of a "neglected child" to
include a newborn infant testing positive for a controlled substance.

Section 3 amends subdivision (f) of section 1012 of the family court
act in regard to expanding the definition of a "neglected child" to
include a newborn infant testing positive for a controlled substance.

Section 4 amends subdivision (b) of section 1028 of the family court
act to establish a rebuttable presumption that the release of a
newborn infant testing positive for a controlled substance to the
patent(s) presents an imminent danger to the child's life or health as
the court reviews an application to return a child temporarily removed
from its parents.

Section 5 amends subdivision (a) of section 1046 of the family court
act by adding a new paragraph establishing specific conditions of a
newborn infant testing positive for controlled substances as prima
facie proof of neglect in a dispositional hearing.

Section b amends subdivision (d) of section 1051 of the family court
act to establish a rebuttable presumption that the release of a
newborn infant testing positive for a controlled substance to the
parent(s) presents an imminent danger to the child's life or health as
the court reviews the facts to determine if a petition of neglect is
dismissed or sustained.

JUSTIFICATION: Regrettably, drug addiction, in pregnant women and
corresponding fetal drug exposure is an epidemic that has expanded
drastically since the 1980's. A large body of professional literature
from the fields of pediatrics, obstetrics and the social sciences have
documented a multi-million dollar problem whose effect on a generation
of young Americans is still being discovered.

Illegal drug use during pregnancy creates a high degree of risk that
newborns will exhibit neurobehavioral and circulatory health
complications. These complications include neurological defects,
learning disabilities, low cognition, physical and developmental
delay, and low birth weight.

Furthermore, in utero drug exposure is certainly evidence of the real
possibility of further neglect or abuse. However, under the current


appellate case law in this state (Nassau County D. S. S. and Denise
J.), proof of drug abuse during pregnancy 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.

It is a sad commentary indeed that at present, infants born with such
a positive toxicology must, without additional evidence of neglect be
discharged home without support, supervision or intervention - only to
await the occurrence of other neglect, injury or even death before the
state can intervene.

By allowing social service officials to intervene before the child is
sent home, this legislation seeks to remedy this horrendous injustice
which often sends society's most vulnerable and innocent individuals
to face further neglect, maltreatment and abuse at the hands of their
own parent.

LEGISLATIVE HISTORY: 1996: S.5732-A Passed Senate/Assembly Children
and Families. 2003-04: A4839/S1014 Referred to Children and Families
2005-06: A5103/S490 Referred to Children and Families 2007-08:
A4424/S2040 Referred to Children and Families 2011-12: A9327/S995
Referred to Children and Families

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately.

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

                                  6375

                            I N  S E N A T E

                            January 21, 2014
                               ___________

Introduced  by  Sen. KENNEDY -- 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 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
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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03476-01-3

S. 6375                             2

  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  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 condition 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
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

S. 6375                             3

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
  (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:

S. 6375                             4

  (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:
  (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

S. 6375                             5

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.

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