Senate Bill S8037

2009-2010 Legislative Session

Delays administrative fair hearings of child abuse or maltreatment until family court proceedings have been concluded

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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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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 02, 2010	referred to children and families

2009-S8037 (ACTIVE) - Details

Current Committee:: Senate Children And Families
Law Section:: Family Court Act
Laws Affected:: Amd §§1039 & 1051, Fam Ct Act; amd §§22, 422 & 424-a, Soc Serv L

2009-S8037 (ACTIVE) - Summary

Delays administrative fair hearings of child abuse or maltreatment until family court procedings have been concluded.

2009-S8037 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S8037

TITLE OF BILL:

An act
to amend the family court act and the social services law, in relation
to administrative fair hearings regarding reports of child abuse or
maltreatment in the statewide central registry

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

Two parallel systems, one judicial and one administrative, coexist to
determine the validity of reports of suspected child abuse or
maltreatment contained in the statewide central registry. Because
these systems operate on different tracks with different time-frames,
they sometimes produce disparate results that can be extremely
harmful to the children and families involved. Because fair hearings
are being held in increasing numbers and with greater dispatch than
in the past, the problem of harmful, disparate results has escalated.
We now propose this measure to ensure that, in cases in which parallel
Family Court and administrative proceedings are in progress, the
administrative fair hearing process would not precipitously advance
without awaiting the outcome of the Family Court matter.

Under existing law, a report of suspected child abuse or maltreatment
that is found to be supported by credible evidence may form the basis
for a child protective petition in Family Court pursuant to Article
10 of the Family Court Act.

In accordance with the Act's due process protections, Family Court
judges may make findings of child abuse or neglect by a preponderance
of the evidence or, in particularly serious cases, may make findings
of severe or repeated child abuse by clear and convincing evidence.
Once findings are made, cases proceed to disposition, which finally
determines whether children are in need of protection.
See Family Court Act §§1047, 1051, 1052. Alternatively, on consent of
the parties, cases may be adjourned in contemplation of dismissal for
a period of up to one year upon designated terms and conditions
which, if complied with, result in dismissal of the proceedings. See
Family Court Act §§1039, 1039-a.

Existing law permits individuals who are the subjects of reports of
suspected child abuse or maltreatment to challenge those reports
administratively by requesting that the findings be amended, even
while Family Court proceedings are pending. When this occurs the
investigating child protective agency must send the relevant records
to the State Office of Children and Family Services (OCFS) within 20
days of a request by OCFS and OCFS must make its determination
regarding the request to amend within 15 days of receiving the

records. See social Services Law §422(8). Report determined by OCFS
not to meet the credible evidence test must be amended to be
"unfounded," which would preclude their use in court or for any
purpose other than limited use by child protective agencies in
subsequent investigations. See Social Services Law §422(5). If OCFS
declines to amend the report within 90 days, or if the report is
found upon the agency's review to be supported by credible evidence,
the report may be the subject of a fair hearing at which the agency
has the burden of sustaining it by a preponderance of the evidence.
See Matter of Lee T.T. v. Dowling, 87 N.Y.2d 699 (1996).

In many, if not most, cases, the Family Court proceeding has concluded
prior to resolution of the administrative review and fair hearing
process. Indeed, the Legislature clearly contemplated that the
administrative process would be informed by and, in cases in which a
judicial adjudication has been made, bound by the results of the
judicial proceeding. Section 422(8)(b) of the Social Services Law
provides that the fact that Family Court has made a finding of child
abuse or neglect regarding an allegation forming the basis of a
report of child abuse or maltreatment creates an "irrebuttable
presumption" that credible evidence supports the allegation. A Family
Court finding is thus conclusive proof that a report is "indicated"
and, as noted, is dispositive as well on the issue whether an
allegation of abuse or neglect against the subject of the report (the
"Respondent" in the Family Court proceeding) has been proven by a
preponderance of the evidence or, in cases of severe or repeated
child abuse, by the higher level of clear and convincing evidence.
The conclusive effect of a Family Court finding was recognized by the
Supreme Court, Appellate Division, First Department in the recent
case of McReynolds v. City of New York, 18 A.D.3d 316 (pt Dept.,
2005), Ive. app. denied, 5 N.Y.3d 707 (2005), cert. dismissed sub
nom McReynolds v.
Office of Children and Family Services, 546 U.S. 1027 (2005). (Family
Court abuse finding supports retention of maltreatment reports on
State Central Register.)

However, in some cases, the Family Court proceeding is still pending
when the statutory deadline looms for resolution of the
administrative process.
Unfortunately, the statute now is silent on the significance of an
unresolved Family Court case on the administrative process. - This
has led to anomalous results, including cases in which the
administrative review or fair hearing resulted in a determination
that the report had been "unfounded," although Family Court
ultimately determined the case to be fully proven under Article 10 of
the Family Court Act. One disturbing example was an adoption case in
which the prospective adoptive parent received a clearance from the
child abuse registry, even though she had been adjudicated in Family
Court for child abuse. In some instances in which the administrative
amendment of the report as "unfounded" has occurred prior to the
adjudication of the Family Court proceeding, the conversion of the
report to "unfounded" has precluded its admissibility in the Family

Court proceeding, notwithstanding its clear admissibility pursuant to
Family Court Act §1046(a)(v). In other cases, the administrative
process has operated entirely without reference to the Family Court
process, with administrative law judges unaware that Family Court
judges have made adjudications that should, in fact, trigger the
irrebuttable presumption that such reports are substantiated
("indicated").

We propose a simple means by which to harmonize the administrative and
judicial processes. This measure would amend sections 22(4),422(8)
and 424-a(1) of the Social Services Law to provide that where a
proceeding pursuant to Article 10 of the Family Court Act is pending
in Family Court with respect to a child named in a child abuse or
maltreatment report, the time periods for amendments and for
requesting and resolving fair hearings should not begin to run until
the Family Court matter has been concluded. The administrative
process must, therefore,
await disposition of the Family Court proceeding or conclusion of a
period of an adjournment in contemplation of dismissal of the Family
Court case, whichever occurs later. Further, where a Family Court
proceeding is pending, the local child protection agency (the
Petitioner in the Family Court matter) must provide the OCFS with
copies of pleadings and court orders and must report the status of
the action. OCFS then must defer its administrative review and
determination until the conclusion.of the Family Court case.

This measure, which would have no fiscal impact on the State, would
take effect immediately and shall apply to requests for appeals and
fair hearings pending as of such effective date.

2007 LEGISLATIVE HISTORY:

OCA 2007-71

2010 LEGISLATIVE HISTORY:

None. New proposal.

2009-S8037 (ACTIVE) - Bill Text download pdf

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

                                  8037

                            I N  S E N A T E

                              June 2, 2010
                               ___________

Introduced  by  Sen.  MONTGOMERY  --  (at request of the Office of Court
  Administration) -- 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  administrative  fair hearings regarding reports of child
  abuse or maltreatment in the statewide central registry

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

  Section 1. Subdivision (f) of section 1039 of the family court act, as
amended chapter 601 of the laws of 1985, is amended to read as follows:
  (f) If the proceeding is not so restored to the calendar, the petition
is,  at  the  expiration  of the adjournment period, deemed to have been
dismissed by the court in furtherance of justice unless  an  application
is pending pursuant to subdivision (e) of this section. If such applica-
tion  is  granted, the petition shall not be dismissed and shall proceed
in accordance with the provisions of such subdivision (e).    THE  PETI-
TIONER  SHALL  NOTIFY  THE  OFFICE  OF  CHILDREN AND FAMILY SERVICES, IN
ACCORDANCE WITH SECTIONS FOUR HUNDRED TWENTY-TWO AND FOUR HUNDRED  TWEN-
TY-FOUR-A  OF THE SOCIAL SERVICES LAW, OF THE OUTCOME OF THE ADJOURNMENT
IN CONTEMPLATION OF DISMISSAL, INCLUDING DISMISSAL OF THE PETITION  UPON
EXPIRATION OF THE ADJOURNMENT OR, WHERE THE PROCEEDING HAS BEEN RESTORED
TO  THE  CALENDAR,  OF ANY PROCEEDINGS UNDER THIS ARTICLE FOLLOWING SUCH
RESTORATION.
  S 2. Section 1051 of the family court act is amended by adding  a  new
subdivision (g) to read as follows:
  (G)  THE  PETITIONER  SHALL  NOTIFY  THE OFFICE OF CHILDREN AND FAMILY
SERVICES, IN ACCORDANCE WITH SECTIONS FOUR HUNDRED TWENTY-TWO  AND  FOUR
HUNDRED  TWENTY-FOUR-A  OF  THE  SOCIAL SERVICES LAW, OF ANY FINDINGS OF
ABUSE OR NEGLECT AND OF ANY ORDERS OF DISMISSAL ENTERED PURSUANT TO THIS
SECTION.
  S 3. Paragraph (a) of subdivision  4  of  section  22  of  the  social
services  law, as amended by chapter 341 of the laws of 1988, is amended
to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD16884-01-0

S. 8037                             2

  (a) Except as provided in paragraph (c) of subdivision two of  section
four  hundred twenty-four-a of this chapter and in paragraph (b) of this
subdivision, any appeal pursuant to this section must be requested with-
in sixty days after the date of the action or failure to act  complained
of.    HOWEVER, WHERE A PROCEEDING PURSUANT TO ARTICLE TEN OF THE FAMILY
COURT ACT IS PENDING WITH RESPECT TO A CHILD NAMED IN A CHILD  ABUSE  OR
MALTREATMENT REPORT THAT IS THE SUBJECT OF AN APPEAL PURSUANT TO SECTION
FOUR  HUNDRED  TWENTY-TWO OR FOUR HUNDRED TWENTY-FOUR-A OF THIS CHAPTER,
THE PERIOD TO REQUEST AN APPEAL SHALL NOT COMMENCE, ANY  PENDING  APPEAL
SHALL  BE STAYED AND THE APPEAL SHALL NOT BE DETERMINED UNTIL THE DISPO-
SITION OF SUCH FAMILY COURT PROCEEDING OR UNTIL THE  CONCLUSION  OF  THE
PERIOD  OF  ANY  ADJOURNMENT  OF  SUCH  PROCEEDING  IN  CONTEMPLATION OF
DISMISSAL, WHICHEVER IS LATER.
  S 4. Subparagraphs (i) and (ii) of paragraph (a) and subparagraphs (i)
and (ii) of paragraph (b) of subdivision 8 of section 422 of the  social
services  law,  subparagraph  (i) of paragraph (a) and subparagraphs (i)
and (ii) of paragraph (b) as amended by chapter 12 of the laws  of  1996
and  subparagraph (ii) of paragraph (a) as amended by chapter 323 of the
laws of 2008, are amended 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  OF THE OFFICE OF CHILDREN AND FAMILY SERVICES to amend the
record of the report. If the commissioner does not amend the  report  in
accordance  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.  WHERE A PROCEEDING  PURSUANT  TO  ARTICLE
TEN  OF THE FAMILY COURT ACT IS PENDING WITH RESPECT TO A CHILD NAMED IN
THE CHILD ABUSE OR MALTREATMENT REPORT THAT IS THE SUBJECT OF A  REQUEST
TO  AMEND UNDER THIS SECTION, THE NINETY-DAY PERIOD TO REQUEST AN AMEND-
MENT OF THE REPORT AND THE NINETY-DAY PERIOD FOR THE COMMISSIONER OF THE
OFFICE OF CHILDREN AND FAMILY SERVICES TO AMEND  THE  REPORT  SHALL  NOT
COMMENCE  AND  ANY  PENDING  REQUEST TO AMEND THE REPORT SHALL BE STAYED
UNTIL THE DISPOSITION OF SUCH  FAMILY  COURT  PROCEEDING  OR  UNTIL  THE
CONCLUSION  OF  THE  PERIOD  OF  ANY  ADJOURNMENT  OF SUCH PROCEEDING IN
CONTEMPLATION OF DISMISSAL, WHICHEVER IS LATER.
  (ii) Upon receipt of a request to amend the record of  a  child  abuse
and maltreatment report the office of children and family services shall
immediately  send  a  written request to the child protective service or
the state agency which was responsible for investigating the allegations
of abuse or maltreatment for all records, reports and other  information
maintained  by  the service or state agency pertaining to such indicated
report. The service or state agency shall as expeditiously  as  possible
but  within  no more than twenty working days of receiving such request,
forward all records, reports and other information it maintains on  such
indicated  report to the office of children and family services, INCLUD-
ING A COPY OF ANY PETITION AND COURT ORDER OR ORDERS WITH RESPECT  TO  A
PROCEEDING  PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT EITHER PEND-
ING OR DISPOSED OF REGARDING SUCH REPORT. WHERE A PROCEEDING PURSUANT TO
ARTICLE TEN OF THE FAMILY COURT ACT IS PENDING REGARDING A  CHILD  NAMED
IN  THE  CHILD  ABUSE  OR  MALTREATMENT  REPORT THAT IS THE SUBJECT OF A
REQUEST TO AMEND UNDER THIS SECTION, THE  CHILD  PROTECTIVE  SERVICE  OR
STATE AGENCY, AS APPLICABLE, SHALL REPORT THE STATUS OF THE FAMILY COURT

S. 8037                             3

PROCEEDING  TO  THE  OFFICE OF CHILDREN AND FAMILY SERVICES, WHICH SHALL
DEFER ITS REVIEW  AND  DETERMINATION  PENDING  THE  DISPOSITION  OF  THE
PROCEEDING  OR CONCLUSION OF ANY PERIOD OF ADJOURNMENT OF THE PROCEEDING
IN  CONTEMPLATION OF DISMISSAL, WHICHEVER IS LATER. IMMEDIATELY UPON THE
DISPOSITION OF THE  PROCEEDING  OR  CONCLUSION  OF  ANY  ADJOURNMENT  IN
CONTEMPLATION  OF DISMISSAL, THE CHILD PROTECTIVE SERVICE OR STATE AGEN-
CY, AS APPLICABLE, SHALL REPORT THE DISPOSITION  OF  THE  PROCEEDING  OR
OUTCOME  OF THE ADJOURNMENT IN CONTEMPLATION OF DISMISSAL, TO THE OFFICE
OF CHILDREN AND FAMILY SERVICES.   The office  of  children  and  family
services  shall  as  expeditiously  as  possible but within no more than
fifteen working days of receiving such materials from the child  protec-
tive  service  or  state  agency,  review  all  such  materials  in  its
possession concerning the indicated report and determine, after  afford-
ing such service or state agency a reasonable opportunity to present its
views,  whether  there  is  a fair preponderance of the evidence to find
that the subject committed the act or acts of child abuse  or  maltreat-
ment  giving  rise  to the indicated report and whether, based on guide-
lines developed by the office of children and family  services  pursuant
to subdivision five of section four hundred twenty-four-a of this title,
such  act or acts could be relevant and reasonably related to employment
of the subject of the report by a provider agency, as defined by  subdi-
vision  three  of  section  four hundred twenty-four-a of this title, or
relevant and reasonably related to  the  subject  of  the  report  being
allowed  to  have  regular and substantial contact with children who are
cared for by a provider agency, or relevant and  reasonably  related  to
the  approval  or disapproval of an application submitted by the subject
of the report to a licensing agency, as defined by subdivision  four  of
section four hundred twenty-four-a of this title.  IN DETERMINING WHETH-
ER THERE IS CREDIBLE EVIDENCE THAT THE SUBJECT COMMITTED THE ACT OR ACTS
OF  CHILD ABUSE OR MALTREATMENT GIVING RISE TO THE INDICATED REPORT, 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 PRESUMPTION THAT SAID ALLEGATION IS SUBSTANTIATED
BY SOME CREDIBLE EVIDENCE.
  (i) If the [department] OFFICE OF CHILDREN AND FAMILY SERVICES, 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] OFFICE OF CHILDREN AND FAMILY SERVICES shall
schedule a fair hearing and shall provide notice of the scheduled  hear-
ing  date  to the subject, the statewide central register and, as appro-
priate, to the child protective service or the state agency which inves-
tigated the report.  WHERE A PROCEEDING PURSUANT TO ARTICLE TEN  OF  THE
FAMILY  COURT  ACT  IS  PENDING WITH RESPECT TO A CHILD NAMED IN A CHILD
ABUSE OR MALTREATMENT REPORT THAT IS THE SUBJECT OF A REQUEST  TO  AMEND
UNDER  THIS  SECTION,  THE PERIOD TO SCHEDULE THE FAIR HEARING REGARDING
THE FAILURE TO AMEND SHALL NOT COMMENCE, ANY PENDING FAIR HEARING  SHALL
BE  STAYED AND THE FAIR HEARING SHALL NOT BE DETERMINED UNTIL THE DISPO-
SITION OF SUCH FAMILY COURT PROCEEDING OR UNTIL THE  CONCLUSION  OF  THE
PERIOD  OF  ANY  ADJOURNMENT  OF  SUCH  PROCEEDING  IN  CONTEMPLATION OF
DISMISSAL, WHICHEVER IS LATER. WHERE A PROCEEDING  PURSUANT  TO  ARTICLE
TEN  OF THE FAMILY COURT ACT IS PENDING, THE CHILD PROTECTIVE SERVICE OR
STATE AGENCY, AS APPLICABLE, SHALL REPORT THE STATUS OF THE FAMILY COURT
PROCEEDING TO THE OFFICE OF CHILDREN AND  FAMILY  SERVICES.  IMMEDIATELY
UPON  THE DISPOSITION OF THE PROCEEDING OR CONCLUSION OF ANY ADJOURNMENT
IN CONTEMPLATION OF DISMISSAL, WHICHEVER IS LATER, THE CHILD  PROTECTIVE
SERVICE  OR STATE AGENCY, AS APPLICABLE, SHALL REPORT THE DISPOSITION OF

S. 8037                             4

THE PROCEEDING  OR  OUTCOME  OF  THE  ADJOURNMENT  IN  CONTEMPLATION  OF
DISMISSAL, TO THE OFFICE OF CHILDREN AND FAMILY SERVICES.
  (ii)  The  burden  of  proof  in  such a hearing shall be on the child
protective service or the state agency which investigated the report, 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.
WHERE  A  PROCEEDING  PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT IS
PENDING WITH RESPECT TO A CHILD NAMED IN THE CHILD ABUSE OR MALTREATMENT
REPORT THAT IS THE SUBJECT OF A FAIR HEARING  UNDER  THIS  SECTION,  THE
OFFICE  OF  CHILDREN  AND  FAMILY SERVICES SHALL DEFER ITS DETERMINATION
UNTIL THE DISPOSITION OF SUCH  FAMILY  COURT  PROCEEDING  OR  UNTIL  THE
CONCLUSION  OF  THE  PERIOD  OF  ANY  ADJOURNMENT  OF SUCH PROCEEDING IN
CONTEMPLATION OF DISMISSAL, WHICHEVER IS LATER.
  S 5. Subparagraphs (i), (ii) and (iii) of paragraph (e) of subdivision
1 of section 424-a of the social services law, as amended by chapter  12
of the laws of 1996, are amended to read as follows:
  (i)  Subject to the provisions of subparagraph (ii) of this paragraph,
the [department] OFFICE OF CHILDREN AND FAMILY SERVICES shall inform the
provider or licensing  agency,  or  child  care  resource  and  referral
programs  pursuant to subdivision six of this section whether or not the
person is the subject of  an  indicated  child  abuse  and  maltreatment
report only if: (a) the time for the subject of the report to request an
amendment  of  the record of the report pursuant to subdivision eight of
section four hundred twenty-two OF THIS TITLE has  expired  without  any
such  request having been made; or (b) such request was made within such
time and a fair hearing regarding the request has  been  finally  deter-
mined  by the commissioner OF THE OFFICE OF CHILDREN AND FAMILY SERVICES
and the record of the report has not been amended to unfound the  report
or delete the person as a subject of the report.  WHERE A REQUEST FOR AN
AMENDMENT OF THE RECORD AND/OR A FAIR HEARING HAS BEEN MADE REGARDING AN
INDICATED  REPORT,  BUT ACTION ON SUCH REQUEST HAS BEEN DEFERRED BECAUSE
OF THE PENDENCY OF A PROCEEDING PURSUANT TO ARTICLE TEN  OF  THE  FAMILY
COURT  ACT,  THE OFFICE OF CHILDREN AND FAMILY SERVICES SHALL INFORM THE
PROVIDER OR LICENSING AGENCY OR CHILD CARE RESOURCE AND REFERRAL PROGRAM
THAT THERE IS AN INDICATED REPORT THAT IS THE SUBJECT OF A PENDING FAMI-
LY COURT PROCEEDING. ONCE THE OFFICE OF CHILDREN AND FAMILY SERVICES  IS
INFORMED BY THE CHILD PROTECTIVE SERVICE OR STATE AGENCY, AS APPLICABLE,
THAT  A DISPOSITION OF THE FAMILY COURT PROCEEDING HAS BEEN ORDERED OR A
PERIOD OF  ANY  ADJOURNMENT  OF  SUCH  PROCEEDING  IN  CONTEMPLATION  OF
DISMISSAL  HAS CONCLUDED, WHICHEVER IS LATER, AND THE OFFICE OF CHILDREN
AND FAMILY SERVICES HAS TAKEN ACTION REGARDING THE REQUEST TO  AMEND  OR
THE  FAIR  HEARING,  THE  OFFICE  OF  CHILDREN AND FAMILY SERVICES SHALL
INFORM THE PROVIDER OR LICENSING  AGENCY  OR  CHILD  CARE  RESOURCE  AND
REFERRAL PROGRAM OF ITS ACTION REGARDING THE INDICATED REPORT.
  (ii) If the subject of an indicated report of child abuse or maltreat-
ment  has  not requested an amendment of the record of the report within
the time specified in subdivision eight of section four hundred  twenty-
two  of this title or if the subject had a fair hearing pursuant to such
section prior to January  first,  nineteen  hundred  eighty-six  and  an
inquiry  is  made  to  the  [department]  OFFICE  OF CHILDREN AND FAMILY
SERVICES pursuant to this subdivision  concerning  the  subject  of  the
report  OR  WHERE A REQUEST FOR AN AMENDMENT OF THE RECORD AND/OR A FAIR
HEARING HAS BEEN MADE REGARDING AN INDICATED REPORT, BUT ACTION ON  SUCH
REQUEST HAS BEEN DEFERRED BECAUSE OF THE PENDENCY OF PROCEEDING PURSUANT

S. 8037                             5

TO ARTICLE TEN OF THE FAMILY COURT ACT, the [department] OFFICE OF CHIL-
DREN  AND FAMILY SERVICES shall, as expeditiously as possible but within
no more than ten working days  of  receipt  of  the  inquiry,  determine
whether,  in  fact,  the  person  about  whom  an inquiry is made is the
subject of an indicated report. Upon making  a  determination  that  the
person  about  whom  the  inquiry is made is the subject of an indicated
report of child abuse and maltreatment, the [department] OFFICE OF CHIL-
DREN AND FAMILY SERVICES shall immediately send a written request to the
child protective service or  state  agency  which  was  responsible  for
investigating  the allegations of abuse or maltreatment for all records,
reports and other information maintained by the service or state  agency
on  the  subject. The service or state agency shall, as expeditiously as
possible but within no more than twenty working days of  receiving  such
request, forward all records, reports and other information it maintains
on the indicated report to the [department] OFFICE OF CHILDREN AND FAMI-
LY  SERVICES, INCLUDING A COPY OF ANY PETITION AND COURT ORDER OR ORDERS
WITH RESPECT TO A PROCEEDING PURSUANT TO ARTICLE TEN OF THE FAMILY COURT
ACT EITHER PENDING OR DISPOSED OF REGARDING SUCH  REPORT.  The  [depart-
ment] OFFICE OF CHILDREN AND FAMILY SERVICES shall, within fifteen work-
ing  days  of receiving such records, reports and other information from
the child protective  service  or  state  agency,  review  all  records,
reports  and other information in its possession concerning the subject,
and determine whether there is some credible evidence to find  that  the
subject  had  committed  the  act or acts of child abuse or maltreatment
giving rise to the indicated report.   WHERE A  PROCEEDING  PURSUANT  TO
ARTICLE  TEN  OF THE FAMILY COURT ACT IS PENDING WITH RESPECT TO A CHILD
NAMED IN THE CHILD ABUSE OR MALTREATMENT REPORT,  THE  CHILD  PROTECTIVE
SERVICE  OR  STATE AGENCY, AS APPLICABLE, SHALL REPORT THE STATUS OF THE
PROCEEDING TO THE OFFICE OF CHILDREN AND FAMILY  SERVICES,  WHICH  SHALL
DEFER  ITS  REVIEW  AND  DETERMINATION  UNTIL  THE  DISPOSITION  OF SUCH
PROCEEDING OR UNTIL THE CONCLUSION OF THE PERIOD OF ANY  ADJOURNMENT  OF
SUCH PROCEEDING IN CONTEMPLATION OF DISMISSAL, WHICHEVER IS LATER. IMME-
DIATELY  UPON  THE  DISPOSITION  OF  THE PROCEEDING OR CONCLUSION OF ANY
ADJOURNMENT IN CONTEMPLATION OF DISMISSAL, THE CHILD PROTECTIVE  SERVICE
OR  STATE  AGENCY,  AS  APPLICABLE,  SHALL REPORT THE DISPOSITION OF THE
PROCEEDING OR OUTCOME OF THE ADJOURNMENT IN CONTEMPLATION OF  DISMISSAL,
TO THE OFFICE OF CHILDREN AND FAMILY SERVICES.
  (iii) If it is determined, after affording such service or state agen-
cy a reasonable opportunity to present its views, that there is no cred-
ible  evidence in the record to find that the subject committed such act
or acts, the [department] OFFICE OF CHILDREN AND FAMILY  SERVICES  shall
amend  the  record  to indicate that the report was unfounded and notify
the inquiring party that the person about whom the inquiry  is  made  is
not  the subject of an indicated report. IN DETERMINING WHETHER THERE IS
CREDIBLE EVIDENCE THAT THE SUBJECT COMMITTED THE ACT OR  ACTS  OF  CHILD
ABUSE OR MALTREATMENT GIVING RISE TO THE INDICATED REPORT, 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 IRRE-
BUTTABLE PRESUMPTION THAT THE ALLEGATION IS SUBSTANTIATED BY SOME CREDI-
BLE EVIDENCE. If the subject of the report had a fair  hearing  pursuant
to  subdivision  eight  of section four hundred twenty-two of this title
prior to January first, nineteen hundred eighty-six and the fair hearing
had been finally determined by the commissioner OF THE OFFICE  OF  CHIL-
DREN  AND  FAMILY  SERVICES  and  the  record of the report had not been
amended to unfound the report or delete the person as a subject  of  the
report,  then  the  [department]  OFFICE OF CHILDREN AND FAMILY SERVICES

S. 8037                             6

shall determine that there is some credible evidence to  find  that  the
subject  had  committed  the  act or acts of child abuse or maltreatment
giving rise to the indicated report.
  S  6.  This  act  shall  take  effect  immediately  and shall apply to
requests for appeals and fair hearings pending on or after  such  effec-
tive date.

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Senate Bill S8037

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

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2009-S8037 (ACTIVE) - Details

2009-S8037 (ACTIVE) - Summary

2009-S8037 (ACTIVE) - Sponsor Memo

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Sponsored By

Velmanette Montgomery

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

Actions

2009-S8037 (ACTIVE) - Details

2009-S8037 (ACTIVE) - Summary

2009-S8037 (ACTIVE) - Sponsor Memo

2009-S8037 (ACTIVE) - Bill Text download pdf

Comments