S T A T E O F N E W Y O R K
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5697
2009-2010 Regular Sessions
I N A S S E M B L Y
February 17, 2009
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Introduced by M. of A. V. LOPEZ, CLARK, ALFANO, BARRA -- Multi-Sponsored
by -- M. of A. COOK, GLICK, GOTTFRIED, P. RIVERA, TOWNS -- read once
and referred to the Committee on Children and Families
AN ACT to amend the family court act and the social services law, in
relation to enacting the child protection reform act and repealing
certain provisions of such act and such law relating to child welfare
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as the "Child
Protection Reform Act".
S 2. Section 1011 of the family court act, as added by chapter 962 of
the laws of 1970, is amended to read as follows:
S 1011. Purpose. This article is designed to establish procedures to
help protect children from injury or mistreatment IN THEIR OWN HOMES, TO
PROTECT CHILDREN FROM UNNECESSARY SEPARATION FROM THEIR OWN HOMES AND
FAMILIES, and to help safeguard their physical, mental, and emotional
well-being. It is designed to provide a due process of law for deter-
mining when the state, through its family court, may intervene against
the wishes of a parent on behalf of a child so that [his] THE CHILD'S
needs are properly met.
S 3. Subdivisions (e) and (f) of section 1012 of the family court act
are REPEALED and two new subdivisions (e) and (f) are added to read as
follows:
(E) "ABUSED CHILD" MEANS A CHILD LESS THAN EIGHTEEN YEARS OF AGE WHEN
THE RESPONDENT:
(I) INFLICTS, OR BY HIS OR HER CONDUCT, WITH KNOWLEDGE OR DELIBERATE
INDIFFERENCE, ALLOWS TO BE INFLICTED, UPON SUCH CHILD, SERIOUS PHYSICAL
INJURY BY OTHER THAN ACCIDENTAL MEANS WHICH CREATES A SUBSTANTIAL RISK
OF DEATH OR CAUSES DEATH OR SERIOUS OR PROTRACTED DISFIGUREMENT, OR
PROTRACTED IMPAIRMENT OF PHYSICAL HEALTH OR PROTRACTED LOSS OR IMPAIR-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08404-01-9
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MENT OF THE FUNCTION OF ANY BODILY ORGAN, OR SERIOUS EMOTIONAL INJURY
WHICH CAUSES SIGNIFICANT OR PROTRACTED PSYCHOLOGICAL DYSFUNCTION; OR
(II) COMMITS, OR BY HIS OR HER CONDUCT, WITH KNOWLEDGE OR DELIBERATE
INDIFFERENCE, ALLOWS TO BE COMMITTED, A SEX OFFENSE AGAINST SUCH CHILD,
AS DEFINED IN THE PENAL LAW OR, WITH KNOWLEDGE OR DELIBERATE INDIFFER-
ENCE, ALLOWS SUCH CHILD TO ENGAGE IN ANY ACT DESCRIBED IN SECTION
230.25, 230.30 OR 230.32 OR ARTICLE TWO HUNDRED SIXTY-THREE OF THE PENAL
LAW, PROVIDED, HOWEVER, THAT THE CORROBORATION REQUIREMENTS CONTAINED IN
THE PENAL LAW SHALL NOT APPLY TO PROCEEDINGS UNDER THIS ARTICLE.
FOR THE PURPOSES OF THIS PARAGRAPH, THE FOLLOWING ACTS, WHEN COMMITTED
INTENTIONALLY, SHALL BE PRESUMPTIVELY CONSIDERED TO BE ABUSE: BURNING,
SCALDING, BURNING WITH CIGARETTE OR CIGAR, STARVATION, STRIKING A CHILD
SO AS TO FRACTURE A BONE, OR STRIKING OR STABBING THE CHILD WITH AN
INHERENTLY DANGEROUS INSTRUMENT.
(F) "NEGLECTED CHILD" MEANS A CHILD LESS THAN EIGHTEEN YEARS OF AGE:
(I) WHOSE PHYSICAL CONDITION HAS BEEN SUBSTANTIALLY IMPAIRED OR IS IN
IMMINENT DANGER OF BECOMING SUBSTANTIALLY IMPAIRED AS A RESULT OF THE
FAILURE OF THE RESPONDENT TO SUPPLY THE CHILD WITH FOOD, CLOTHING, SHEL-
TER, EDUCATION, OR MEDICAL, DENTAL, OPTOMETRICAL OR SURGICAL CARE
ALTHOUGH SUCH RESPONDENT HAS REASONABLE MEANS TO DO SO; OR AS A RESULT
OF THE RESPONDENT MISUSING A DRUG OR DRUGS OR ALCOHOL; OR
(II) WHO IS EXPOSED TO A SUBSTANTIAL RISK OF SERIOUS PHYSICAL INJURY
AS DEFINED IN PARAGRAPH (I) OF SUBDIVISION (E) OF THIS SECTION AS A
RESULT OF THE FAILURE OF THE RESPONDENT TO EXERCISE A MINIMUM DEGREE OF
CARE, UNLESS THE RESPONDENT WAS PREVENTED FROM EXERCISING SUCH CARE BY
PHYSICAL VIOLENCE OR THE THREAT OF SUCH VIOLENCE; 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 SUCH RESPONDENT.
S 4. Subdivision (h) of section 1012 of the family court act is
REPEALED.
S 5. Subdivision (c) of section 1051 of the family court act, as
amended by chapter 187 of the laws of 1990, is amended to read as
follows:
(c) If facts sufficient to sustain the petition under this article are
not established, or if[, in a case of alleged neglect,] the court
concludes that its aid is not required on the record before it, the
court shall dismiss the petition and shall state on the record the
grounds for the dismissal. THE COURT SHALL ALSO DISMISS A CASE OF
ALLEGED NEGLECT IF IT FINDS THAT THE PETITIONER HAS FAILED TO PROVIDE OR
OFFER THE SERVICES WHICH WOULD HAVE AMELIORATED THE CONDITION OF
NEGLECT, UNLESS THE PETITIONER HAS SHOWN THAT PROVISION OF SUCH SERVICES
WOULD NOT HAVE AMELIORATED THE CONDITIONS OF NEGLECT OR THAT SUCH
SERVICES ARE NOT PART OF THE COMPREHENSIVE ANNUAL SERVICES PROGRAM PLAN
THEN IN EFFECT.
S 6. Article 10 of the family court act is amended by adding a new
part 9 to read as follows:
PART 9
CHILD WELFARE DIVERSION
SECTION 1085-A. CHILD WELFARE DIVERSION.
1085-B. PROCEDURES.
1085-C. ADJUSTMENT PROCESS.
1085-D. EVIDENCE.
1085-E. FINDINGS.
S 1085-A. CHILD WELFARE DIVERSION. THE FAMILY COURT IN EACH COUNTY MAY
APPOINT A LOCAL PROBATION SERVICE, DULY INCORPORATED COURT APPOINTED
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SPECIAL ADVOCATES, AN AUTHORIZED AGENCY AS DEFINED IN SECTION THREE
HUNDRED SEVENTY-ONE OF THE SOCIAL SERVICES LAW, OR OTHER APPROPRIATE
AGENCIES, TO SERVE, WITH THEIR CONSENT, AS AN ADJUSTMENT AGENCY FOR THE
PURPOSE OF RECEIVING REFERRALS FROM THE FAMILY COURT IN ORDER TO DIVERT
CASES FILED UNDER THIS ARTICLE AND TO AVERT THE NEED FOR PLACEMENT OF
CHILDREN IN FOSTER CARE, BY ARRANGING AND COORDINATING SERVICES TO THE
FAMILY. NOTHING HEREIN SHALL BE CONSTRUED TO ENTITLE A PERSON OR ORGAN-
IZATION SERVING AS AN ADJUSTMENT AGENCY PROVIDING SUCH DIVERSION
SERVICES TO ANY ADDITIONAL REIMBURSEMENT PURSUANT TO THIS SECTION BEYOND
THE SUMS AUTHORIZED BY OTHER APPLICABLE PROVISIONS OF LAW.
S 1085-B. PROCEDURES. UPON FILING OF ANY PETITION UNDER SECTION ONE
THOUSAND THIRTY-ONE OF THIS ARTICLE, THE COURT MAY REFER THE PROCEEDING
TO A LOCAL ADJUSTMENT AGENCY FOR A PERIOD OF UP TO NINETY DAYS.
S 1085-C. ADJUSTMENT PROCESS. 1. THE ADJUSTMENT AGENCY SHALL CONFER
WITH ALL NECESSARY PARTIES TO ASSIST THE CHILD AND FAMILY, TO DETERMINE
WHAT SERVICES ARE NECESSARY AND TO ARRANGE FOR THE PROVISION OF SUCH
SERVICES. THE ADJUSTMENT AGENCY MAY, AT ANY TIME, NOTIFY THE COURT THAT
THE LOCAL DEPARTMENT OF SOCIAL SERVICES HAS FAILED TO PROVIDE NECESSARY
SERVICES. UPON FINDING, AFTER A HEARING, THAT SUCH SERVICES ARE NEEDED
BY THE FAMILY, THE COURT SHALL DIRECT THE LOCAL DEPARTMENT OF SOCIAL
SERVICES TO PROVIDE SUCH SERVICES, PURSUANT TO SECTION ONE THOUSAND
FIFTEEN-A OF THIS ARTICLE.
2. THE ADJUSTMENT AGENCY MAY, AT ANY TIME, NOTIFY THE COURT THAT
ATTEMPTS AT ADJUSTMENT HAVE NOT BEEN SUCCESSFUL AND REQUEST THAT ADJUST-
MENT SERVICES BE TERMINATED AND THAT THE PETITION BE RESTORED TO THE
COURT'S CALENDAR.
3. AT ANY TIME, THE PETITIONER MAY FILE A PETITION TO TERMINATE THE
ADJUSTMENT PROCESS AND RESTORE THE ORIGINAL PETITION TO THE COURT CALEN-
DAR. THE PETITION SHALL, IN ADDITION TO THE REQUIREMENT OF SECTION ONE
THOUSAND THIRTY-ONE OF THIS ARTICLE, ALLEGE THE CURRENT PROBLEMS OF THE
FAMILY, SERVICES WHICH ARE NEEDED, EFFORTS MADE TO PROVIDE SUCH
SERVICES, THE MANNER AND CIRCUMSTANCE UNDER WHICH THE PARENTS REFUSED TO
ACCEPT SUCH SERVICES OR THE SERVICES FAILED TO ALLEVIATE THE CONDITIONS
GIVING RISE TO THE PETITION. THE COURT SHALL ISSUE AN ORDER TERMINATING
THE ADJUSTMENT PROCESS IF IT FINDS NO REASONABLE LIKELIHOOD THAT THE
PROCESS WILL BE SUCCESSFUL OR THAT THE PARENT HAS FAILED OR REFUSED TO
COOPERATE WITH THE ADJUSTMENT PROCESS. UPON ISSUING SUCH ORDER, THE
PETITION ALLEGING ABUSE OR NEGLECT SHALL BE RESTORED TO THE COURT'S
CALENDAR.
S 1085-D. EVIDENCE. STATEMENTS MADE BY RESPONDENT TO THE ADJUSTMENT
AGENCY DURING THE ADJUSTMENT PROCESS SHALL NOT BE ADMISSIBLE AT ANY
FACT-FINDING HEARING HELD PURSUANT TO THIS ARTICLE.
S 1085-E. FINDINGS. A REFERRAL TO CHILD WELFARE DIVERSION, THE FILING
OF A PETITION PURSUANT TO THIS PART, OR PARTICIPATION IN THE ADJUSTMENT
PROCESS SHALL NOT CONSTITUTE A FINDING OR ADMISSION OF NEGLECT, AND
SHALL NOT BE ADMISSIBLE AGAINST THE INTEREST OF A RESPONDENT, EXCEPT TO
SHOW THAT SUCH RESPONDENT WAS OFFERED SERVICES AND EITHER FAILED OR
REFUSED TO ACCEPT THEM.
S 7. Subdivisions 4-a and 4-b of section 371 of the social services
law are REPEALED and a new subdivision 4 is added to read as follows:
4. "NEGLECTED CHILD" AND "ABUSED CHILD" SHALL HAVE THE SAME MEANING AS
DEFINED IN SUBDIVISIONS (E) AND (F) OF SECTION ONE THOUSAND TWELVE OF
THE FAMILY COURT ACT.
S 8. Subdivision 7 of section 384-b of the social services law is
amended by adding a new paragraph (g) to read as follows:
(G) FOR THE PURPOSES OF THIS SECTION:
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(I) THE FAMILY SERVICE PLAN SHALL MEAN THE PLAN PREPARED BY THE SOCIAL
SERVICES OFFICIAL PURSUANT TO SECTION FOUR HUNDRED NINE-E OF THIS ARTI-
CLE, AFTER CONSULTATION WITH THE PARENT, FILED WITH AND APPROVED OR
MODIFIED BY THE FAMILY COURT SUBSEQUENT TO THE EFFECTIVE DATE OF THIS
PARAGRAPH, IN AN ORDER ENTERED PURSUANT TO SECTION THREE HUNDRED FIFTY-
EIGHT-A, OR MODIFIED PURSUANT TO SECTION THREE HUNDRED FIFTY-EIGHT-A OF
THIS CHAPTER, OR ENTERED OR MODIFIED PURSUANT TO SECTION ONE THOUSAND
FIFTY-FIVE OF THE FAMILY COURT ACT;
(II) WHERE A FAMILY SERVICE PLAN HAS BEEN APPROVED OR MODIFIED BY THE
FAMILY COURT AFTER A HEARING AT WHICH THE PARENT WAS PRESENT AND REPRES-
ENTED BY COUNSEL, AND THE PARENT WAS SERVED WITH A COPY OF THE PLAN AND
INFORMED OF THE CONSEQUENCES OF THIS SECTION;
(A) A FINDING THAT THE AUTHORIZED AGENCY CARING FOR THE CHILD HAS
FULLY COMPLIED WITH ITS OBLIGATIONS UNDER THE PLAN SHALL CONSTITUTE
PRIMA FACIE EVIDENCE THAT THE AGENCY EXERCISED DILIGENT EFFORTS TO
ENCOURAGE AND STRENGTHEN THE PARENTAL RELATIONSHIP; AND
(B) A FINDING THAT THE AUTHORIZED AGENCY CARING FOR THE CHILD HAS,
WITHOUT GOOD CAUSE, FAILED SUBSTANTIALLY TO COMPLY WITH ITS OBLIGATIONS
UNDER THE PLAN SHALL REQUIRE THE DISMISSAL OF THE PETITION; AND
(C) WHERE THE COURT FINDS THAT THE AUTHORIZED AGENCY HAS SUBSTANTIALLY
BUT NOT FULLY COMPLIED WITH ITS OBLIGATIONS UNDER THE PLAN, THE COURT
SHALL DETERMINE WHETHER SUCH SUBSTANTIAL COMPLIANCE CONSTITUTES DILIGENT
EFFORTS PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION; AND
(D) A FINDING THAT THE PARENT HAS FAILED TO SUBSTANTIALLY COMPLY WITH
HIS OR HER OBLIGATIONS UNDER THE FAMILY SERVICE PLAN SHALL CONSTITUTE
PRIMA FACIE EVIDENCE OF FAILURE TO SUBSTANTIALLY PLAN AND CONTINUOUSLY
PLAN FOR THE FUTURE OF THE CHILD, BUT SHALL NOT CONSTITUTE EVIDENCE THAT
THE PARENT WAS PHYSICALLY AND FINANCIALLY ABLE TO DO SO; AND
(E) A FINDING THAT THE PARENT HAS SUBSTANTIALLY COMPLIED WITH HIS OR
HER OBLIGATIONS UNDER THE FAMILY SERVICE PLAN SHALL REQUIRE THE DISMISS-
AL OF THE PETITION.
S 9. Subdivision 2 of section 422 of the social services law is
amended by adding a new paragraph (e) to read as follows:
(E) WHENEVER THE DEPARTMENT DETERMINES THAT THE FACTS RELATED IN A
TELEPHONE CALL OR FACSIMILE DO NOT CONSTITUTE NEGLECT OR ABUSE AS
DEFINED IN SECTION ONE THOUSAND TWELVE OF THE FAMILY COURT ACT BUT MAY
OCCASION THE NEED FOR SERVICES TO A FAMILY, INCLUDING PREVENTIVE
SERVICES AS DEFINED IN SECTION FOUR HUNDRED NINE OF THIS CHAPTER, THE
DEPARTMENT SHALL FORTHWITH CONVEY SUCH INFORMATION TO THE APPROPRIATE
LOCAL DEPARTMENT OF SOCIAL SERVICES FOR THE PROVISIONS OF NECESSARY
SERVICES AND ASSISTANCE WHICH SUCH CHILD AND FAMILY MIGHT OTHERWISE BE
ENTITLED.
S 10. Subdivision 7 of section 424 of the social services law, as
amended by chapter 164 of the laws of 1991, is amended to read as
follows:
7. determine, within sixty days, whether [the] A report OF ABUSE is
"indicated" or "unfounded"; WITH RESPECT TO A REPORT OF NEGLECT, THE
CHILD PROTECTIVE SERVICE SHALL CONCLUDE, WITHIN SIXTY DAYS, AN INVESTI-
GATION OF WHETHER OR NOT SOME CREDIBLE EVIDENCE OF NEGLECT EXISTS. IF
THE CHILD PROTECTIVE SERVICE FINDS THAT NO CREDIBLE EVIDENCE EXISTS, IT
SHALL DETERMINE THAT SUCH REPORT IS UNFOUNDED. IF THE CHILD PROTECTIVE
SERVICE DETERMINES THAT SOME CREDIBLE EVIDENCE EXISTS, IT SHALL REFER
SUCH REPORT TO THE APPROPRIATE UNIT OF THE LOCAL DEPARTMENT OF SOCIAL
SERVICES FOR THE PROVISIONS OF SERVICES AND ASSISTANCE TO THE CHILD AND
FAMILY, INCLUDING PREVENTIVE SERVICES AS DEFINED IN SECTION FOUR HUNDRED
NINE OF THIS CHAPTER. THE CHILD PROTECTIVE SERVICE SHALL MONITOR THE
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DELIVERY AND EFFICACY OF THE PROVISION OF SERVICES AND ASSISTANCE TO THE
FAMILY TO AMELIORATE THE PROBLEMS GIVING RISE TO THE REPORT AND, WITHIN
ONE HUNDRED TWENTY DAYS FOLLOWING THE CONCLUSION OF ITS INVESTIGATION,
DETERMINE WHETHER OR NOT THE CHILD IS AT CONTINUED RISK OF NEGLECT. IF
THE CHILD PROTECTIVE SERVICE FINDS THAT SUCH RISK EXISTS, OR THAT THE
FAMILY HAS DECLINED THE PROVISION OF SERVICES OR ASSISTANCE WITHOUT DUE
CAUSE, OR THAT THE PROVISION OF SERVICES AND ASSISTANCE WOULD NOT AMEL-
IORATE THE CONDITIONS GIVING RISE TO THE REPORT, AT ANY TIME AFTER THE
CONCLUSION OF ITS INVESTIGATION, IT SHALL DETERMINE THAT SUCH REPORT IS
"INDICATED," AND SHALL FILE A PETITION PURSUANT TO ARTICLE TEN OF THE
FAMILY COURT ACT. IF THE CHILD PROTECTIVE SERVICE FINDS THAT THE APPRO-
PRIATE SERVICES AND ASSISTANCE HAVE BEEN OR ARE BEING PROVIDED AND/OR
THAT THE CHILD IS NOT AT CONTINUED RISK OF NEGLECT, OR THAT THE FAMILY
HAS AGREED TO THE PROVISION OF SERVICES AND ASSISTANCE BUT THAT SUCH
SERVICES AND ASSISTANCE ARE NOT AVAILABLE, IT SHALL DETERMINE THAT SUCH
REPORT IS "UNFOUNDED". NOTHING IN THIS SUBDIVISION SHALL PRECLUDE THE
REMOVAL OF A CHILD FROM HIS OR HER HOME PURSUANT TO THE APPLICABLE
PROVISIONS OF THE FAMILY COURT ACT;
S 11. This act shall take effect on the ninetieth day after it shall
have become a law.