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

                                 3233--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 23, 2009
                               ___________

Introduced by M. of A. CLARK, SCARBOROUGH, TITUS, PAULIN, JACOBS, HEAST-
  IE,  BENJAMIN,  BENEDETTO,  PEOPLES-STOKES,  N. RIVERA,  COLTON, JOHN,
  CANESTRARI, GALEF, PHEFFER, FIELDS, PERRY, MAYERSOHN, BOYLAND, ALFANO,
  BUTLER, ROBINSON, ARROYO, JAFFEE, COOK, SPANO, BARRON  --  Multi-Spon-
  sored by -- M. of A. BARRA, CAHILL, CAMARA, CHRISTENSEN, CROUCH, ERRI-
  GO,  FARRELL,  FINCH, GANTT, GOTTFRIED, HIKIND, HYER-SPENCER, LATIMER,
  LIFTON, McENENY, McKEVITT, J. MILLER, MILLMAN, MOLINARO, NOLAN,  REIL-
  LY, SAYWARD, SWEENEY, TOWNS, TOWNSEND, WEISENBERG, WRIGHT -- read once
  and referred to the Committee on Children and Families -- reported and
  referred  to  the Committee on Ways and Means -- committee discharged,
  bill amended, ordered reprinted as amended  and  recommitted  to  said
  committee

AN  ACT  to amend the executive law, in relation to the establishment of
  the office of the child advocate

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

  Section  1.  The executive law is amended by adding a new article 19-I
to read as follows:
                              ARTICLE 19-I
                      OFFICE OF THE CHILD ADVOCATE
SECTION 533. OFFICE OF THE CHILD ADVOCATE; CREATION.
        534. DEFINITIONS.
        535. THE CHILD ADVOCATE.
        536. DUTIES OF THE CHILD ADVOCATE.
        537. POWERS OF THE OFFICE OF THE CHILD ADVOCATE.
        538. DUTY TO MAINTAIN CONFIDENTIALITY.
        539. ADDITIONAL PROVISIONS.
  S 533. OFFICE OF THE CHILD ADVOCATE; CREATION. THERE IS HEREBY CREATED
IN THE EXECUTIVE DEPARTMENT, AN OFFICE  OF  THE  CHILD  ADVOCATE,  WHICH
SHALL:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
A                                                          LBD06023-02-9

              

A. 3233--A                          2

  1.  EXAMINE,  EVALUATE  AND REPORT TO THE GOVERNOR AND THE LEGISLATURE
ON:
  (A) SYSTEMIC ISSUES IN PUBLICLY FUNDED PROGRAMS OVERSEEN BY THE OFFICE
OF CHILDREN AND FAMILY SERVICES; AND
  (B)  MULTI-SYSTEMIC ISSUES THAT CHILDREN IN THE CARE, CUSTODY OR GUAR-
DIANSHIP OF THE OFFICE OF CHILDREN AND FAMILY SERVICES OR  LOCAL  SOCIAL
SERVICES  DISTRICTS,  AND  THE  FAMILY  OF  SUCH CHILDREN, EXPERIENCE IN
ACCESSING NEEDED SERVICES ACROSS SYSTEMS; AND
  2. ADVOCATE FOR, AND REPORT TO THE GOVERNOR  AND  THE  LEGISLATURE  ON
SUGGESTED  STATUTORY,  REGULATORY  OR  POLICY CHANGES AIMED AT IMPROVING
OUTCOMES AND SERVICES FOR CHILDREN AND FAMILIES IN NEW YORK STATE.
  S 534. DEFINITIONS. AS USED IN THIS ARTICLE:
  1. "CHILD" OR "CHILDREN" MEANS:
  (A) A PERSON, OR PERSONS UNDER THE AGE OF EIGHTEEN;
  (B) A PERSON OR PERSONS UNDER THE  AGE  OF  TWENTY-ONE  WHO  HAS  BEEN
PLACED INTO THE CARE, CUSTODY, OR GUARDIANSHIP OF THE OFFICE OF CHILDREN
AND  FAMILY  SERVICES  OR  A LOCAL SOCIAL SERVICES DISTRICT, PURSUANT TO
ARTICLE THREE, SEVEN, OR TEN OF THE FAMILY COURT ACT, OR SECTIONS  THREE
HUNDRED  FIFTY-EIGHT-A,  THREE  HUNDRED  EIGHTY-THREE-C,  THREE  HUNDRED
EIGHTY-FOUR-A OR THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW;
OR
  (C) A PERSON OR PERSONS UNDER THE AGE OF TWENTY-ONE WHO IS  PLACED  IN
RESIDENTIAL  CARE AS DEFINED IN SUBDIVISION FOUR OF SECTION FOUR HUNDRED
TWELVE-A OF THE SOCIAL SERVICES LAW.
  2. "CHILD ADVOCATE" MEANS THE PERSON APPOINTED PURSUANT TO SUBDIVISION
ONE OF SECTION FIVE HUNDRED THIRTY-FIVE OF THIS ARTICLE  TO  DIRECT  AND
OVERSEE THE ACTIVITIES OF THE OFFICE OF THE CHILD ADVOCATE.
  S  535. THE CHILD ADVOCATE. 1. THE CHILD ADVOCATE SHALL BE AN INDIVID-
UAL WITH AT LEAST FIVE YEARS EXPERIENCE IN THE GENERAL SUBJECT  AREA  OF
EITHER  CHILD  WELFARE, JUVENILE JUSTICE OR CHILDHOOD BEHAVIORAL HEALTH,
WHO SHALL BE APPOINTED BY THE GOVERNOR UPON THE ADVICE  AND  CONSENT  OF
THE  SENATE  FOR A TERM OF FIVE YEARS. THE CHILD ADVOCATE SHALL CONTINUE
TO HOLD SUCH POSITION UNTIL HIS OR HER SUCCESSOR IS APPOINTED,  BUT  MAY
BE REMOVED FROM HIS OR HER POSITION IF THE GOVERNOR SHALL DETERMINE THAT
SUCH  CHILD  ADVOCATE  HAS  ABUSED  HIS OR HER RIGHTS, POWERS, OR DUTIES
ESTABLISHED PURSUANT TO THIS ARTICLE OR THAT HE  OR  SHE  HAS  WILLFULLY
FAILED TO CARRY OUT THE DUTIES REQUIRED BY THIS ARTICLE. THE CHILD ADVO-
CATE SHALL REPORT TO THE GOVERNOR, WHO SHALL FIX THE COMPENSATION OF THE
CHILD ADVOCATE WITHIN AMOUNTS APPROPRIATED THEREFOR.
  2.  THE  CHILD  ADVOCATE  MAY HIRE OR APPOINT PERSONS AS MAY BE DEEMED
NECESSARY TO CARRY OUT THE DUTIES OF THE OFFICE OF THE  CHILD  ADVOCATE.
THE  DUTIES OF PERSONS EMPLOYED OR APPOINTED BY THE CHILD ADVOCATE SHALL
BE PERFORMED UNDER THE ADVICE AND SUPERVISION  OF  THE  CHILD  ADVOCATE.
PERSONS  EMPLOYED OR APPOINTED BY THE OFFICE OF THE CHILD ADVOCATE SHALL
BE INDIVIDUALS WITH EXPERTISE IN THE AREAS OF  CHILD  WELFARE,  JUVENILE
JUSTICE,  CHILDHOOD BEHAVIORAL HEALTH, FOSTER CARE, PREVENTIVE SERVICES,
OR CHILD CARE, AS EVIDENCED BY EXPERTISE IN THE FIELD, PRACTICE, ADVOCA-
CY OR BY ACADEMIC BACKGROUND, THE LEVEL AND SUFFICIENCY OF  WHICH  SHALL
BE  DETERMINED  BY  THE CHILD ADVOCATE. THE CHILD ADVOCATE SHALL FIX THE
COMPENSATION OF PERSONS EMPLOYED OR APPOINTED BY THE OFFICE OF THE CHILD
ADVOCATE WITHIN AMOUNTS APPROPRIATED THEREFOR.
  S 536. DUTIES OF THE CHILD ADVOCATE. 1. THE CHILD ADVOCATE SHALL:
  (A) EXAMINE, EVALUATE AND REPORT TO THE GOVERNOR AND  THE  LEGISLATURE
ON SYSTEMIC ISSUES IN PUBLICLY FUNDED PROGRAMS OVERSEEN BY THE OFFICE OF
CHILDREN  AND  FAMILY  SERVICES  AND  LOCAL  SOCIAL  SERVICES DISTRICTS,

A. 3233--A                          3

INCLUDING BUT NOT LIMITED TO, CHILD WELFARE,  JUVENILE  JUSTICE,  FOSTER
CARE, CHILD PROTECTIVE, CHILD CARE AND PREVENTIVE SERVICES;
  (B)  EXAMINE,  EVALUATE AND REPORT TO THE GOVERNOR AND THE LEGISLATURE
ON MULTI-SYSTEMIC ISSUES THAT CHILDREN IN THE CARE, CUSTODY OR GUARDIAN-
SHIP OF THE OFFICE OF CHILDREN  AND  FAMILY  SERVICES  OR  LOCAL  SOCIAL
SERVICES DISTRICTS, FAMILIES OF CHILDREN, EXPERIENCE IN ACCESSING NEEDED
SERVICES ACROSS SYSTEMS;
  (C)  MONITOR THE IMPLEMENTATION OF THE POLICIES, REGULATIONS AND STAT-
UTES OF STATE AGENCIES WHICH MAY BE APPLICABLE TO THE  LEGAL  RIGHTS  OF
CHILDREN IN THE CARE, CUSTODY, OR GUARDIANSHIP OF THE OFFICE OF CHILDREN
AND  FAMILY  SERVICES OR A LOCAL SOCIAL SERVICES DISTRICT, OR THE FAMILY
OF SUCH CHILDREN;
  (D) MONITOR THE IMPLEMENTATION OF POLICIES, REGULATIONS  AND  STATUTES
WHICH  MAY  HAVE  AN  IMPACT ON PUBLICLY FUNDED PROGRAMS OVERSEEN BY THE
OFFICE OF CHILDREN AND FAMILY SERVICES, INCLUDING BUT  NOT  LIMITED  TO,
CHILD  WELFARE,  JUVENILE  JUSTICE, FOSTER CARE, CHILD PROTECTIVE, CHILD
CARE AND PREVENTIVE SERVICES; AND
  (E) RECOMMEND CHANGES IN  STATE  POLICIES,  STATUTES  AND  REGULATIONS
CONCERNING  CHILDREN IN THE CARE, CUSTODY, OR GUARDIANSHIP OF THE OFFICE
OF CHILDREN AND FAMILY SERVICES OR LOCAL SOCIAL SERVICES  DISTRICTS  AND
THE FAMILIES OF SUCH CHILDREN; AND
  (F)  RECOMMEND  CHANGES  IN  STATE POLICIES, STATUTES, AND REGULATIONS
CONCERNING PUBLICLY FUNDED PROGRAMS THAT SERVICE CHILDREN  AND  FAMILIES
INCLUDING,  JUVENILE  JUSTICE,  FOSTER  CARE,  CHILD CARE, CHILD WELFARE
PROGRAMS, AND PREVENTIVE SERVICES, ADMINISTERED BY THE OFFICE  OF  CHIL-
DREN AND FAMILY SERVICES OR LOCAL SOCIAL SERVICES DISTRICTS;
  (G) TAKE APPROPRIATE ACTIONS AIMED AT PROMOTION OF THE RIGHTS, SAFETY,
WELL-BEING,  AND BEST INTEREST OF CHILDREN IN NEW YORK STATE, INCLUDING,
BUT NOT LIMITED TO, UNDERTAKING LEGISLATIVE ADVOCACY, CONDUCTING  PUBLIC
HEARINGS AND MAKING PROPOSALS FOR ADMINISTRATIVE OR SYSTEMIC REFORM;
  (H)  PROVIDE ADMINISTRATIVE SUPERVISION AND OVERSIGHT TO THE OFFICE OF
THE CHILD ADVOCATE AND DEVOTE FULL-TIME TO THE  DUTIES  OF  HIS  OR  HER
OFFICE; AND
  (I) REPORT TO THE GOVERNOR AND THE LEGISLATURE AS NEEDED, BUT NOT LESS
THAN TWICE PER YEAR. SUCH REPORT SHALL INCLUDE BUT NOT BE LIMITED TO:
  (A)  INFORMATION  CONCERNING THE NUMBER AND TYPES OF REVIEWS OR EVALU-
ATION CONDUCTED BY THE OFFICE OF THE CHILD ADVOCATE; AND
  (B) ANY RECOMMENDATIONS BY THE CHILD ADVOCATE FOR LEGISLATIVE, REGULA-
TORY, OR PUBLIC POLICY CHANGES.
  2. IF AFTER EXAMINATION PURSUANT TO SUBDIVISION ONE OF  THIS  SECTION,
THE  CHILD  ADVOCATE  IDENTIFIES  A SYSTEMIC PROBLEM IN HOW SERVICES ARE
PROVIDED TO CHILDREN IN THE CARE, CUSTODY, OR GUARDIANSHIP OF THE OFFICE
OF CHILDREN AND FAMILY SERVICES OR A LOCAL SOCIAL SERVICES DISTRICT,  BY
THE  OFFICE  OF CHILDREN AND FAMILY SERVICES, OR A LOCAL SOCIAL SERVICES
DISTRICT, OR ANY PUBLIC OR  PRIVATE  ENTITY  WHICH  CONTRACTS  WITH  THE
OFFICE  OF  CHILDREN  AND  FAMILY  SERVICES  OR  A LOCAL SOCIAL SERVICES
DISTRICT TO PROVIDE SERVICES TO SUCH CHILDREN, THE CHILD ADVOCATE  SHALL
PROVIDE SUCH OFFICE, DISTRICT, AGENCY OR ENTITY A WRITTEN REPORT OUTLIN-
ING THE FINDINGS AND RECOMMENDATIONS OF THE CHILD ADVOCATE.
  (A)  AN  OFFICE,  DISTRICT,  AGENCY OR ENTITY NAMED IN A REPORT BY THE
CHILD ADVOCATE AS DESCRIBED IN THIS SUBDIVISION SHALL HAVE THE OPTION TO
RESPOND IN WRITING TO THE CHILD ADVOCATE'S  FINDINGS,  PROVIDED  HOWEVER
THAT  SUCH  WRITTEN  RESPONSE  MUST BE ISSUED WITHIN NINETY DAYS OF SUCH
OFFICE, DISTRICT, AGENCY OR ENTITY'S RECEIPT OF THE APPLICABLE REPORT BY
THE CHILD ADVOCATE.

A. 3233--A                          4

  (B) WITHIN THIRTY DAYS AFTER THE RECEIPT OF A RESPONSE FROM AN OFFICE,
DISTRICT, AGENCY OR ENTITY AS DESCRIBED IN THIS SUBDIVISION,  THE  CHILD
ADVOCATE  SHALL  ISSUE SUCH RESPONSE, AND THE REPORT ISSUED BY THE CHILD
ADVOCATE PURSUANT TO THIS SUBDIVISION, TO THE GOVERNOR AND THE  LEGISLA-
TURE.
  (C)  IF  A RESPONSE OR A WRITTEN REQUEST FOR AN ADDITIONAL THIRTY DAYS
WITH AN EXPLANATION IS NOT RECEIVED BY THE CHILD ADVOCATE WITHIN  NINETY
DAYS  FROM  THE  DATE  THAT  THE CHILD ADVOCATE SENT SUCH REPORT TO SUCH
OFFICE, DISTRICT, AGENCY OR ENTITY, THE  CHILD  ADVOCATE  SHALL  PROVIDE
SUCH  REPORT  TO  THE GOVERNOR AND THE LEGISLATURE WITH A NOTICE STATING
THAT SUCH OFFICE, DISTRICT, AGENCY OR ENTITY FAILED TO  ISSUE  A  TIMELY
WRITTEN RESPONSE TO THE REPORT BY THE CHILD ADVOCATE.
  S 537. POWERS OF THE OFFICE OF THE CHILD ADVOCATE. NOTWITHSTANDING ANY
PROVISION  OF LAW OR REGULATION TO THE CONTRARY, THE OFFICE OF THE CHILD
ADVOCATE SHALL HAVE ACCESS TO, INCLUDING THE RIGHT TO INSPECT AND  COPY,
ANY  RECORDS NECESSARY TO CARRY OUT ITS RIGHTS, POWERS AND DUTIES PURSU-
ANT TO THIS ARTICLE.
  S 538. DUTY TO MAINTAIN CONFIDENTIALITY. ALL RECORDS OF THE OFFICE  OF
THE CHILD ADVOCATE PERTAINING TO THE FULFILLMENT OF THE CHILD ADVOCATE'S
RIGHTS,  POWERS  AND  DUTIES  PURSUANT  TO THIS ARTICLE, AND ALL RECORDS
OBTAINED BY THE CHILD ADVOCATE  SHALL  BE  KEPT  CONFIDENTIAL,  PROVIDED
HOWEVER,  THAT  LIMITED  INFORMATION  CONTAINED  IN  SUCH RECORDS MAY BE
RELEASED BY THE CHILD ADVOCATE, IF APPROPRIATE, AND UPON APPROVAL OF THE
CHILD ADVOCATE, SO LONG AS THE INFORMATION  TO  BE  RELEASED  WOULD  NOT
IDENTIFY  THE  CHILD  OR CHILDREN THE CHILD ADVOCATE WAS SERVING, OR THE
NAMES OF THE PARENTS OR SIBLINGS OF SUCH CHILD OR CHILDREN.
  S 539. ADDITIONAL PROVISIONS. 1. THE  STATE  SHALL  PROTECT  AND  HOLD
HARMLESS  ANY  PERSON  EMPLOYED OR APPOINTED BY THE CHILD ADVOCATE, FROM
FINANCIAL LOSS AND EXPENSE, INCLUDING LEGAL  FEES  AND  COSTS,  IF  ANY,
ARISING OUT OF ANY CLAIM, DEMAND OR SUIT FOR DAMAGES RESULTING FROM ACTS
OR OMISSIONS COMMITTED IN THE DISCHARGE OF HIS OR HER RIGHTS, POWERS AND
DUTIES  WITHIN  THE  SCOPE OF HIS OR HER EMPLOYMENT OR APPOINTMENT WHICH
MAY CONSTITUTE NEGLIGENCE BUT WHICH ACTS ARE NOT  WANTON,  MALICIOUS  OR
GROSSLY NEGLIGENT AS DETERMINED BY A COURT OF COMPETENT JURISDICTION.
  2.  NO  STATE  OR  LOCAL  AGENCY,  DEPARTMENT, OFFICE, OR ENTITY SHALL
DISCHARGE, OR IN ANY  MANNER  DISCRIMINATE  OR  RETALIATE  AGAINST,  ANY
PERSON  WHO  IN GOOD FAITH MAKES A COMPLAINT TO, OR COOPERATES WITH, THE
CHILD ADVOCATE IN A REVIEW OR EVALUATION CONDUCTED BY  THE  CHILD  ADVO-
CATE.  NO  EMPLOYEE OF ANY STATE OR LOCAL DEPARTMENT OR OFFICE OR OF ANY
PRIVATE ENTITY SHALL RETALIATE AGAINST ANY PERSON WHO MAKES A  COMPLAINT
TO,  OR WHO COOPERATES WITH THE OFFICE OF THE CHILD ADVOCATE IN A REVIEW
OR EVALUATION CONDUCTED BY THE OFFICE OF THE CHILD ADVOCATE.
  3. THE OFFICE OF THE CHILD ADVOCATE MAY APPLY FOR AND  ACCEPT  GRANTS,
GIFTS AND BEQUESTS OF FUNDS FROM PRIVATE INDIVIDUALS AND FOUNDATIONS FOR
THE  PURPOSE  OF CARRYING OUT SYSTEMATIC STUDIES UNDER THIS ARTICLE. THE
FUNDS SHALL BE EXPENDED IN ACCORDANCE WITH THE PROVISIONS OF SUCH GRANT,
GIFT OR BEQUEST.
  4. THE CHILD ADVOCATE SHALL TAKE ALL POSSIBLE ACTIONS  INCLUDING,  BUT
NOT  LIMITED  TO,  CONDUCTING  PROGRAMS OF PUBLIC EDUCATION, UNDERTAKING
LEGISLATIVE ADVOCACY AND MAKING PROPOSALS FOR ADMINISTRATIVE  CORRECTION
OR  SYSTEMIC  REFORM  AND  FORMAL  LEGAL  ACTION, IN ORDER TO SECURE AND
ENSURE THE LEGAL, CIVIL AND SPECIAL RIGHTS OF CHILDREN.
  5. THE CHILD ADVOCATE SHALL TAKE THE APPROPRIATE  STEPS  TO  MAKE  THE
EXISTENCE AND AVAILABILITY OF THE CHILD ADVOCATE WIDELY KNOWN, BY APPRO-
PRIATE AND ACTIVE MEANS, TO CHILDREN AND ADULTS.

A. 3233--A                          5

  6.  THE  CHILD ADVOCATE SHALL CREATE INFORMATIONAL MATERIALS FOR CHIL-
DREN REGARDING THE RIGHTS OF CHILDREN WHEN  THEY  ARE  IN  FOSTER  CARE,
DETENTION  CENTERS,  FACILITIES  OPERATED  BY THE OFFICE OF CHILDREN AND
FAMILY SERVICES, JAILS, OR PRISONS AND THE METHODS AND ASSISTANCE AVAIL-
ABLE TO ENFORCE THOSE RIGHTS.
  S 2. Subdivision 16 of section 501 of the executive law, as renumbered
by  chapter  170 of the laws of 1994, is renumbered subdivision 17 and a
new subdivision 16 is added to read as follows:
  16. THE COMMISSIONER OF THE OFFICE OF  CHILDREN  AND  FAMILY  SERVICES
SHALL  PROMULGATE  REGULATIONS  REQUIRING  THAT  NO SERVICES OR PROGRAMS
UNDER THE JURISDICTION OF THE OFFICE OF  CHILDREN  AND  FAMILY  SERVICES
SHALL  RESTRICT  OR  PROHIBIT  ACCESS  TO  RECORDS OR INDIVIDUALS TO THE
OFFICE OF THE CHILD ADVOCATE UPON REQUEST, UNLESS THE DISCLOSURE OF SUCH
RECORDS ARE OTHERWISE PROHIBITED BY FEDERAL LAW OR REGULATION.
  S 3. This act shall take effect on April 1, 2011;  provided,  however,
that effective immediately, the addition, amendment and/or repeal of any
rule  or  regulation necessary for the implementation of this act on its
effective date are authorized and directed to be made and  completed  on
or before the effective date.

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

                                 3233--B
                                                        Cal. No. 254

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 23, 2009
                               ___________

Introduced by M. of A. CLARK, SCARBOROUGH, TITUS, PAULIN, JACOBS, HEAST-
  IE,  BENJAMIN,  BENEDETTO,  PEOPLES-STOKES,  N. RIVERA,  COLTON, JOHN,
  CANESTRARI, GALEF, PHEFFER, FIELDS, PERRY, MAYERSOHN, BOYLAND, ALFANO,
  BUTLER, ROBINSON, ARROYO, JAFFEE, COOK, SPANO, BARRON  --  Multi-Spon-
  sored  by  --  M.  of A.   BARRA, CAHILL, CAMARA, CHRISTENSEN, CROUCH,
  ERRIGO, FARRELL, FINCH, GANTT, GOTTFRIED, HIKIND, HYER-SPENCER, LATIM-
  ER, LIFTON, McENENY, McKEVITT, J. MILLER,  MILLMAN,  MOLINARO,  NOLAN,
  REILLY,  SAYWARD, SWEENEY, TOWNS, TOWNSEND, WEISENBERG, WRIGHT -- read
  once and referred  to  the  Committee  on  Children  and  Families  --
  reported  and referred to the Committee on Ways and Means -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee -- reported from  committee,  advanced  to  a  third
  reading,  amended  and  ordered  reprinted, retaining its place on the
  order of third reading

AN ACT to amend the executive law, in relation to the  establishment  of
  the  independent  office  of the child advocate; and repealing certain
  provisions of such law relating to the office of the ombudsman

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

  Section  1. Subtitle B of title 3 of article 19-G of the executive law
is REPEALED.
  S 2. The executive law is amended by adding a new article 19-I to read
as follows:
                              ARTICLE 19-I
                INDEPENDENT OFFICE OF THE CHILD ADVOCATE
SECTION 533. INDEPENDENT OFFICE OF THE CHILD ADVOCATE; CREATION.
        534. DEFINITIONS.
        535. THE CHILD ADVOCATE.
        536. DUTIES OF THE CHILD ADVOCATE.
        537. POWERS OF THE INDEPENDENT OFFICE OF THE CHILD ADVOCATE.
        538. DUTY TO MAINTAIN CONFIDENTIALITY.

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

                                                           LBD06023-04-0

A. 3233--B                          2

        539. ADDITIONAL PROVISIONS.
  S  533.  INDEPENDENT  OFFICE OF THE CHILD ADVOCATE; CREATION. THERE IS
HEREBY CREATED IN THE EXECUTIVE DEPARTMENT, AN INDEPENDENT OFFICE OF THE
CHILD ADVOCATE, WHICH SHALL:
  1. EXAMINE, EVALUATE AND REPORT TO THE GOVERNOR  AND  THE  LEGISLATURE
ON:
  (A) PARTICULAR AND SYSTEMIC ISSUES IN PUBLICLY FUNDED JUVENILE JUSTICE
PROGRAMS OVERSEEN BY THE OFFICE OF CHILDREN AND FAMILY SERVICES; AND
  (B) MULTI-SYSTEMIC ISSUES THAT CHILDREN IN THE JUVENILE JUSTICE SYSTEM
EXPERIENCE IN ACCESSING NEEDED SERVICES ACROSS SYSTEMS; AND
  2.  ADVOCATE  FOR,  AND  REPORT TO THE GOVERNOR AND THE LEGISLATURE ON
SUGGESTED STATUTORY, REGULATORY OR POLICY  CHANGES  AIMED  AT  IMPROVING
OUTCOMES  AND  SERVICES  FOR CHILDREN IN THE JUVENILE JUSTICE SYSTEM AND
THEIR FAMILIES IN NEW YORK STATE.
  S 534. DEFINITIONS. AS USED IN THIS ARTICLE:
  1. "CHILD" OR "CHILDREN" MEANS:
  (A) A PERSON, OR PERSONS UNDER THE AGE OF EIGHTEEN; OR
  (B) A PERSON OR PERSONS UNDER THE  AGE  OF  TWENTY-ONE  WHO  HAS  BEEN
PLACED INTO A JUVENILE JUSTICE FACILITY IN THE CARE, CUSTODY, OR GUARDI-
ANSHIP  OF  THE OFFICE OF CHILDREN AND FAMILY SERVICES OR A LOCAL SOCIAL
SERVICES DISTRICT PURSUANT TO ARTICLE THREE OF THE FAMILY COURT ACT.
  2. "CHILD ADVOCATE" MEANS THE PERSON APPOINTED PURSUANT TO SUBDIVISION
ONE OF SECTION FIVE HUNDRED THIRTY-FIVE OF THIS ARTICLE  TO  DIRECT  AND
OVERSEE THE ACTIVITIES OF THE INDEPENDENT OFFICE OF THE CHILD ADVOCATE.
  S  535. THE CHILD ADVOCATE. 1. THE CHILD ADVOCATE SHALL BE AN INDIVID-
UAL WITH AT LEAST FIVE YEARS EXPERIENCE IN THE GENERAL SUBJECT  AREA  OF
EITHER  CHILD  WELFARE, JUVENILE JUSTICE OR CHILDHOOD BEHAVIORAL HEALTH,
WHO SHALL BE APPOINTED BY THE GOVERNOR UPON THE ADVICE  AND  CONSENT  OF
THE  SENATE  FOR A TERM OF FIVE YEARS. THE CHILD ADVOCATE SHALL CONTINUE
TO HOLD SUCH POSITION UNTIL HIS OR HER SUCCESSOR IS APPOINTED,  BUT  MAY
BE REMOVED FROM HIS OR HER POSITION IF THE GOVERNOR SHALL DETERMINE THAT
SUCH  CHILD  ADVOCATE  HAS  ABUSED  HIS OR HER RIGHTS, POWERS, OR DUTIES
ESTABLISHED PURSUANT TO THIS ARTICLE OR THAT HE  OR  SHE  HAS  WILLFULLY
FAILED TO CARRY OUT THE DUTIES REQUIRED BY THIS ARTICLE. THE CHILD ADVO-
CATE SHALL REPORT TO THE GOVERNOR, WHO SHALL FIX THE COMPENSATION OF THE
CHILD ADVOCATE WITHIN AMOUNTS APPROPRIATED THEREFOR.
  2.  THE  CHILD  ADVOCATE  MAY HIRE OR APPOINT PERSONS AS MAY BE DEEMED
NECESSARY TO CARRY OUT THE DUTIES OF THE INDEPENDENT OFFICE OF THE CHILD
ADVOCATE. THE DUTIES OF PERSONS EMPLOYED OR APPOINTED BY THE CHILD ADVO-
CATE SHALL BE PERFORMED UNDER THE ADVICE AND SUPERVISION  OF  THE  CHILD
ADVOCATE. PERSONS EMPLOYED OR APPOINTED BY THE INDEPENDENT OFFICE OF THE
CHILD ADVOCATE SHALL BE INDIVIDUALS WITH EXPERTISE IN THE AREAS OF CHILD
WELFARE,  JUVENILE  JUSTICE,  CHILDHOOD  BEHAVIORAL HEALTH, FOSTER CARE,
PREVENTIVE SERVICES, OR CHILD CARE, AS EVIDENCED  BY  EXPERTISE  IN  THE
FIELD,  PRACTICE,  ADVOCACY  OR  BY  ACADEMIC  BACKGROUND, THE LEVEL AND
SUFFICIENCY OF WHICH SHALL BE DETERMINED  BY  THE  CHILD  ADVOCATE.  THE
CHILD  ADVOCATE  SHALL  FIX  THE  COMPENSATION  OF  PERSONS  EMPLOYED OR
APPOINTED BY THE INDEPENDENT OFFICE OF THE CHILD ADVOCATE WITHIN AMOUNTS
APPROPRIATED THEREFOR.
  S 536. DUTIES OF THE CHILD ADVOCATE. 1. THE CHILD ADVOCATE SHALL:
  (A) EXAMINE, EVALUATE, INVESTIGATE AND REPORT TO THE GOVERNOR AND  THE
LEGISLATURE  ON  PARTICULAR AND SYSTEMIC ISSUES IN PUBLICLY FUNDED JUVE-
NILE JUSTICE PROGRAMS OVERSEEN BY THE  OFFICE  OF  CHILDREN  AND  FAMILY
SERVICES AND LOCAL SOCIAL SERVICES DISTRICTS; AND
  (B)  EXAMINE, EVALUATE, INVESTIGATE AND REPORT TO THE GOVERNOR AND THE
LEGISLATURE ON MULTI-SYSTEMIC  ISSUES  THAT  CHILDREN  IN  THE  JUVENILE

A. 3233--B                          3

JUSTICE  SYSTEM  EXPERIENCE IN ACCESSING NEEDED SERVICES ACROSS SYSTEMS;
AND
  (C)  MONITOR THE IMPLEMENTATION OF THE POLICIES, REGULATIONS AND STAT-
UTES OF STATE AGENCIES WHICH MAY BE APPLICABLE TO THE  LEGAL  RIGHTS  OF
CHILDREN  IN JUVENILE JUSTICE FACILITIES OVERSEEN BY THE OFFICE OF CHIL-
DREN AND FAMILY SERVICES OR A LOCAL SOCIAL  SERVICES  DISTRICT,  OR  THE
FAMILY OF SUCH CHILDREN; AND
  (D)  MONITOR  THE IMPLEMENTATION OF POLICIES, REGULATIONS AND STATUTES
WHICH MAY HAVE AN IMPACT ON PUBLICLY FUNDED  JUVENILE  JUSTICE  PROGRAMS
OVERSEEN BY THE OFFICE OF CHILDREN AND FAMILY SERVICES; AND
  (E)  RECOMMEND  CHANGES  IN  STATE  POLICIES, STATUTES AND REGULATIONS
CONCERNING CHILDREN IN THE JUVENILE JUSTICE SYSTEM AND THE  FAMILIES  OF
SUCH CHILDREN; AND
  (F)  RECOMMEND  CHANGES  IN  STATE POLICIES, STATUTES, AND REGULATIONS
CONCERNING PUBLICLY FUNDED JUVENILE JUSTICE PROGRAMS THAT SERVICE  CHIL-
DREN  AND  FAMILIES,  ADMINISTERED  BY THE OFFICE OF CHILDREN AND FAMILY
SERVICES OR LOCAL SOCIAL SERVICES DISTRICTS; AND
  (G) TAKE APPROPRIATE ACTIONS AIMED AT PROMOTION OF THE RIGHTS, SAFETY,
WELL-BEING, AND BEST INTERESTS OF CHILDREN IN NEW YORK STATE, INCLUDING,
BUT NOT LIMITED TO, UNDERTAKING LEGISLATIVE ADVOCACY, CONDUCTING  PUBLIC
HEARINGS AND MAKING PROPOSALS FOR ADMINISTRATIVE OR SYSTEMIC REFORM; AND
  (H)  PROVIDE ADMINISTRATIVE SUPERVISION AND OVERSIGHT TO THE INDEPEND-
ENT OFFICE OF THE CHILD ADVOCATE AND DEVOTE FULL-TIME TO THE  DUTIES  OF
HIS OR HER OFFICE; AND
  (I)  CONDUCT PERIODIC INSPECTIONS, EVALUATIONS OR REVIEWS OF ANY JUVE-
NILE JUSTICE FACILITY OPERATED BY THE  OFFICE  OF  CHILDREN  AND  FAMILY
SERVICES  AT  ANY  TIME,  WITH OR WITHOUT PRIOR NOTICE. JUVENILE JUSTICE
FACILITY DIRECTORS AND STAFF SHALL COOPERATE WITH SUCH INSPECTION, EVAL-
UATION OR REVIEW. AN ADVOCATE SHALL HAVE THE RIGHT TO INSPECT THE  JUVE-
NILE JUSTICE FACILITY, VISIT ALL AREAS AND OBSERVE ALL PARTS AND ASPECTS
OF SUCH FACILITY PROGRAM; AND
  (J) REPORT TO THE GOVERNOR AND THE LEGISLATURE AS NEEDED, BUT NOT LESS
THAN  TWICE PER YEAR. SUCH REPORT SHALL BE MADE AVAILABLE TO THE PUBLIC,
UNLESS SUCH MATERIALS ARE CONFIDENTIAL PURSUANT TO  STATUTE,  AND  SHALL
INCLUDE BUT NOT BE LIMITED TO:
  (A)  INFORMATION  CONCERNING  THE  NUMBER AND TYPES OF REVIEWS, EVALU-
ATIONS AND INVESTIGATIONS CONDUCTED BY THE  INDEPENDENT  OFFICE  OF  THE
CHILD ADVOCATE; AND
  (B) ANY RECOMMENDATIONS BY THE CHILD ADVOCATE FOR LEGISLATIVE, REGULA-
TORY, OR PUBLIC POLICY CHANGES.
  2.  IF  AFTER EXAMINATION PURSUANT TO SUBDIVISION ONE OF THIS SECTION,
THE CHILD ADVOCATE IDENTIFIES A SYSTEMIC PROBLEM  IN  HOW  SERVICES  ARE
PROVIDED TO CHILDREN IN THE CARE, CUSTODY, OR GUARDIANSHIP OF THE OFFICE
OF  CHILDREN AND FAMILY SERVICES OR A LOCAL SOCIAL SERVICES DISTRICT, BY
THE OFFICE OF CHILDREN AND FAMILY SERVICES, OR A LOCAL  SOCIAL  SERVICES
DISTRICT,  OR  ANY  PUBLIC  OR  PRIVATE  ENTITY WHICH CONTRACTS WITH THE
OFFICE OF CHILDREN AND  FAMILY  SERVICES  OR  A  LOCAL  SOCIAL  SERVICES
DISTRICT  TO PROVIDE SERVICES TO SUCH CHILDREN, THE CHILD ADVOCATE SHALL
PROVIDE SUCH OFFICE, DISTRICT, AGENCY OR ENTITY A WRITTEN REPORT OUTLIN-
ING THE FINDINGS AND RECOMMENDATIONS OF THE CHILD ADVOCATE.
  (A) AN OFFICE, DISTRICT, AGENCY OR ENTITY NAMED IN  A  REPORT  BY  THE
CHILD ADVOCATE AS DESCRIBED IN THIS SUBDIVISION SHALL HAVE THE OPTION TO
RESPOND  IN  WRITING  TO THE CHILD ADVOCATE'S FINDINGS, PROVIDED HOWEVER
THAT SUCH WRITTEN RESPONSE MUST BE ISSUED WITHIN  NINETY  DAYS  OF  SUCH
OFFICE, DISTRICT, AGENCY OR ENTITY'S RECEIPT OF THE APPLICABLE REPORT BY
THE CHILD ADVOCATE.

A. 3233--B                          4

  (B) WITHIN THIRTY DAYS AFTER THE RECEIPT OF A RESPONSE FROM AN OFFICE,
DISTRICT,  AGENCY  OR ENTITY AS DESCRIBED IN THIS SUBDIVISION, THE CHILD
ADVOCATE SHALL ISSUE SUCH RESPONSE, AND THE REPORT ISSUED BY  THE  CHILD
ADVOCATE  PURSUANT TO THIS SUBDIVISION, TO THE GOVERNOR AND THE LEGISLA-
TURE.
  (C)  IF  A RESPONSE OR A WRITTEN REQUEST FOR AN ADDITIONAL THIRTY DAYS
WITH AN EXPLANATION IS NOT RECEIVED BY THE CHILD ADVOCATE WITHIN  NINETY
DAYS  FROM  THE  DATE  THAT  THE CHILD ADVOCATE SENT SUCH REPORT TO SUCH
OFFICE, DISTRICT, AGENCY OR ENTITY, THE  CHILD  ADVOCATE  SHALL  PROVIDE
SUCH  REPORT  TO  THE GOVERNOR AND THE LEGISLATURE WITH A NOTICE STATING
THAT SUCH OFFICE, DISTRICT, AGENCY OR ENTITY FAILED TO  ISSUE  A  TIMELY
WRITTEN RESPONSE TO THE REPORT BY THE CHILD ADVOCATE.
  S  537.  POWERS  OF  THE  INDEPENDENT  OFFICE  OF  THE CHILD ADVOCATE.
NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY,  THE
INDEPENDENT OFFICE OF THE CHILD ADVOCATE SHALL HAVE ACCESS TO, INCLUDING
THE  RIGHT  TO  INSPECT AND COPY, ANY RECORDS NECESSARY TO CARRY OUT ITS
RIGHTS, POWERS AND DUTIES PURSUANT TO THIS ARTICLE,  INCLUDING  BUT  NOT
LIMITED  TO,  PERSONNEL  RECORDS  THAT BEAR ON ANY ISSUE BEING REVIEWED,
EVALUATED, OR INVESTIGATED AND RECORDS OF CHILDREN  UNDER  CARE  OF  THE
JUVENILE  JUSTICE  SYSTEM  THAT BEAR ON ANY ISSUE BEING REVIEWED, EVALU-
ATED, OR INVESTIGATED. THE INDEPENDENT  OFFICE  OF  THE  CHILD  ADVOCATE
SHALL  ALSO HAVE THE AUTHORITY TO SUBPOENA RECORDS AND WITNESSES, AND TO
CONDUCT INTERVIEWS WITH ANY PERSON NECESSARY TO CARRY  OUT  ITS  RIGHTS,
POWERS AND DUTIES PURSUANT TO THIS ARTICLE, INCLUDING BUT NOT LIMITED TO
STAFF AND CHILDREN UNDER CARE OF THE JUVENILE JUSTICE SYSTEM.
  S  538. DUTY TO MAINTAIN CONFIDENTIALITY. ALL RECORDS OF THE INDEPEND-
ENT OFFICE OF THE CHILD ADVOCATE PERTAINING TO THE  FULFILLMENT  OF  THE
CHILD ADVOCATE'S RIGHTS, POWERS AND DUTIES PURSUANT TO THIS ARTICLE, AND
ALL  RECORDS  OBTAINED BY THE CHILD ADVOCATE SHALL BE KEPT CONFIDENTIAL,
PROVIDED HOWEVER, THAT LIMITED INFORMATION CONTAINED IN SUCH RECORDS MAY
BE RELEASED BY THE CHILD ADVOCATE, IF APPROPRIATE, AND UPON APPROVAL  OF
THE  CHILD ADVOCATE, SO LONG AS THE INFORMATION TO BE RELEASED WOULD NOT
IDENTIFY THE CHILD OR CHILDREN THE CHILD ADVOCATE  WAS  SERVING  OR  THE
NAMES OF THE PARENTS OR SIBLINGS OF SUCH CHILD OR CHILDREN.
  S  539.  ADDITIONAL  PROVISIONS.  1.  THE STATE SHALL PROTECT AND HOLD
HARMLESS ANY PERSON EMPLOYED OR APPOINTED BY THE  CHILD  ADVOCATE,  FROM
FINANCIAL  LOSS  AND  EXPENSE,  INCLUDING  LEGAL FEES AND COSTS, IF ANY,
ARISING OUT OF ANY CLAIM, DEMAND OR SUIT FOR DAMAGES RESULTING FROM ACTS
OR OMISSIONS COMMITTED IN THE DISCHARGE OF HIS OR HER RIGHTS, POWERS AND
DUTIES WITHIN THE SCOPE OF HIS OR HER EMPLOYMENT  OR  APPOINTMENT  WHICH
MAY  CONSTITUTE  NEGLIGENCE  BUT WHICH ACTS ARE NOT WANTON, MALICIOUS OR
GROSSLY NEGLIGENT AS DETERMINED BY A COURT OF COMPETENT JURISDICTION.
  2. NO STATE OR LOCAL  AGENCY,  DEPARTMENT,  OFFICE,  OR  ENTITY  SHALL
DISCHARGE,  OR  IN  ANY  MANNER  DISCRIMINATE  OR RETALIATE AGAINST, ANY
PERSON WHO IN GOOD FAITH MAKES A COMPLAINT TO, OR COOPERATES  WITH,  THE
CHILD  ADVOCATE  IN  A REVIEW OR EVALUATION CONDUCTED BY THE CHILD ADVO-
CATE. NO EMPLOYEE OF ANY STATE OR LOCAL DEPARTMENT OR OFFICE OR  OF  ANY
PRIVATE  ENTITY SHALL RETALIATE AGAINST ANY PERSON WHO MAKES A COMPLAINT
TO, OR WHO COOPERATES WITH THE INDEPENDENT OFFICE OF THE CHILD  ADVOCATE
IN  A  REVIEW,  INVESTIGATION OR EVALUATION CONDUCTED BY THE INDEPENDENT
OFFICE OF THE CHILD ADVOCATE.
  3. ALL COMMUNICATIONS TO THE INDEPENDENT OFFICE OF THE CHILD  ADVOCATE
SHALL  REMAIN  CONFIDENTIAL.  ANY  COMPLAINT FILED BY A YOUTH OR A STAFF
MEMBER OF A JUVENILE JUSTICE FACILITY WITH THE INDEPENDENT OFFICE OF THE
CHILD ADVOCATE SHALL REMAIN CONFIDENTIAL. ALL YOUTH RESIDING IN A  JUVE-
NILE  JUSTICE  FACILITY  SHALL BE PERMITTED REASONABLE ACCESS TO A TELE-

A. 3233--B                          5

PHONE TO MAKE A TOLL FREE CALL OR SHALL BE SUPPLIED WRITING MATERIALS IN
ORDER TO WRITE LETTERS TO THE INDEPENDENT OFFICE OF THE  CHILD  ADVOCATE
UPON  THE YOUTH'S REQUEST. ANY COMMUNICATIONS BETWEEN SUCH YOUTH AND THE
INDEPENDENT  OFFICE  OF THE CHILD ADVOCATE SHALL REMAIN CONFIDENTIAL AND
SHALL NOT BE MONITORED BY ANY MEMBER OF THE JUVENILE JUSTICE  FACILITY'S
STAFF.
  4.  THE  INDEPENDENT  OFFICE  OF  THE CHILD ADVOCATE MAY APPLY FOR AND
ACCEPT GRANTS, GIFTS AND BEQUESTS OF FUNDS FROM PRIVATE INDIVIDUALS  AND
FOUNDATIONS  FOR THE PURPOSE OF CARRYING OUT STUDIES UNDER THIS ARTICLE.
THE FUNDS SHALL BE EXPENDED IN ACCORDANCE WITH THE  PROVISIONS  OF  SUCH
GRANT, GIFT OR BEQUEST.
  5.  THE  CHILD ADVOCATE SHALL TAKE ALL POSSIBLE ACTIONS INCLUDING, BUT
NOT LIMITED TO, CONDUCTING PROGRAMS  OF  PUBLIC  EDUCATION,  UNDERTAKING
LEGISLATIVE  ADVOCACY AND MAKING PROPOSALS FOR ADMINISTRATIVE CORRECTION
OR REFORM AND FORMAL LEGAL ACTION, IN ORDER TO  SECURE  AND  ENSURE  THE
LEGAL, CIVIL AND SPECIAL RIGHTS OF CHILDREN.
  6.  THE  CHILD  ADVOCATE  SHALL TAKE THE APPROPRIATE STEPS TO MAKE THE
EXISTENCE AND AVAILABILITY OF THE CHILD ADVOCATE WIDELY KNOWN, BY APPRO-
PRIATE AND ACTIVE MEANS, TO CHILDREN AND ADULTS.
  7. THE CHILD ADVOCATE SHALL CREATE INFORMATIONAL MATERIALS  FOR  CHIL-
DREN  REGARDING  THE  RIGHTS  OF  CHILDREN  WHEN  THEY  ARE IN DETENTION
CENTERS, FACILITIES OPERATED  BY  THE  OFFICE  OF  CHILDREN  AND  FAMILY
SERVICES,  JAILS, OR PRISONS AND THE METHODS AND ASSISTANCE AVAILABLE TO
ENFORCE THOSE RIGHTS.
  S 3. Subdivision 16 of section 501 of the executive law, as renumbered
by chapter 170 of the laws of 1994, is renumbered subdivision 17  and  a
new subdivision 16 is added to read as follows:
  16.  THE  COMMISSIONER  OF  THE OFFICE OF CHILDREN AND FAMILY SERVICES
SHALL PROMULGATE REGULATIONS REQUIRING  THAT  NO  SERVICES,  FACILITIES,
ENTITIES  OR  PROGRAMS  UNDER THE JURISDICTION OF THE OFFICE OF CHILDREN
AND FAMILY SERVICES SHALL RESTRICT OR  PROHIBIT  ACCESS  TO  FACILITIES,
RECORDS  OR  INDIVIDUALS TO THE INDEPENDENT OFFICE OF THE CHILD ADVOCATE
UPON REQUEST, UNLESS  THE  DISCLOSURE  OF  SUCH  RECORDS  ARE  OTHERWISE
PROHIBITED BY FEDERAL LAW OR REGULATION.
  S 4. This act shall take effect April 1, 2011; provided, however, that
effective immediately, the addition, amendment and/or repeal of any rule
or regulation necessary for the implementation of this act on its effec-
tive  date  are  authorized  and directed to be made and completed on or
before the effective date.