S T A T E   O F   N E W   Y O R K
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                                  7823

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             April 24, 2009
                               ___________

Introduced  by  M. of A. TOWNS, LANCMAN, CASTRO, KOLB, WEISENBERG, TOWN-
  SEND, ERRIGO, EDDINGTON -- Multi-Sponsored by  --  M.  of  A.  CROUCH,
  GABRYSZAK,  GIGLIO, GREENE, McDONOUGH, McENENY, QUINN, SALADINO, SCHI-
  MEL, WALKER -- read once and referred to the Committee on Codes

AN ACT to amend the criminal procedure law, in relation to  establishing
  Nixzmary's  law and allowing police officers to enter without a search
  warrant in certain cases; and to amend the  social  services  law,  in
  relation  to  care and custody of children with parents suffering with
  mental illness and establishing the child advocacy audit office

  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 "Nixzmary's
law".
  S 2. The criminal procedure law is amended by  adding  a  new  section
690.37 to read as follows:
S 690.37 SEARCH WARRANTS; SPECIAL PROVISIONS RELATING TO CHILD ABUSE AND
           MALTREATMENT.
  1.  BEFORE  A PETITION HAS BEEN FILED, UNDER THE PROVISIONS OF ARTICLE
TEN OF THE FAMILY COURT ACT,  AND  BEFORE  A  SEARCH  WARRANT  HAS  BEEN
ISSUED, UNDER THE PROVISIONS OF THIS ARTICLE, A POLICE OFFICER MAY ENTER
AND  CONDUCT A SEARCH OF A DESIGNATED PREMISES FOR THE PURPOSE OF INVES-
TIGATING:
  (A) SEVERE AND REPEATED CHILD ABUSE AND MALTREATMENT; OR
  (B) WHETHER THE SAFETY OF A CHILD IS ENDANGERED.
  2. SUCH  SEARCH  SHALL  BE  SUBSTANTIATED  WITH  ALLEGATIONS  OF  FACT
SUPPORTING  THE  STATEMENTS  OF  SEVERE  AND  REPEATED  CHILD  ABUSE AND
MALTREATMENT. SUCH ALLEGATIONS OF FACT MAY BE BASED UPON PERSONAL  KNOW-
LEDGE  OF  THE POLICE OFFICER OR UPON INFORMATION AND FACTUAL REPORTING,
PROVIDED IN ACCORDANCE WITH THE PROVISIONS OF TITLE SIX OF  ARTICLE  SIX
OF THE SOCIAL SERVICES LAW.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09590-01-9

              

A. 7823                             2

  3.  THE ENTERING POLICE OFFICER SHALL INFORM SUCH PERSON OF HIS OR HER
AUTHORITY AND PURPOSE, AND OF THE REASON FOR SUCH INVESTIGATION,  UNLESS
HE  OR  SHE  ENCOUNTERS  PHYSICAL  RESISTANCE,  FLIGHT  OR OTHER FACTORS
RENDERING SUCH INVESTIGATION IMPRACTICAL.
  4.  IN  ORDER TO EFFECT SUCH AN INVESTIGATION, SUCH POLICE OFFICER MAY
USE SUCH PHYSICAL FORCE, OTHER THAN DEADLY FORCE,  AS  IS  NECESSARY  TO
EXECUTE  THE INVESTIGATION; AND SUCH POLICE OFFICER MAY USE DEADLY PHYS-
ICAL FORCE, IF HE OR SHE REASONABLY BELIEVES SUCH  TO  BE  NECESSARY  TO
DEFEND  HIMSELF OR HERSELF OR A THIRD PERSON FROM WHAT HE OR SHE REASON-
ABLY BELIEVES TO BE THE USE OR IMMINENT USE OF DEADLY PHYSICAL FORCE.
  5. FOLLOWING THE INVESTIGATION PURSUANT TO THIS SECTION AND  UPON  THE
FINDINGS  OF  SEVERE  OR REPEATED CHILD ABUSE AND MALTREATMENT AND CHILD
ENDANGERMENT, THE POLICE OFFICER SHALL ALSO, WITHOUT UNNECESSARY  DELAY,
FILE  A  WRITTEN  STATEMENT WITH THE COURT TO ISSUE A SEARCH WARRANT, IN
ACCORDANCE WITH THE PROVISIONS OF THIS  ARTICLE,  FOR  THE  PURPOSES  OF
SEIZING PROPERTY OR MAKING AN ARREST.
  S  3.   Subparagraph (iv) of paragraph (c) of subdivision 2 of section
384-a of the social services law, as amended by chapter 256 of the  laws
of 1990, is amended to read as follows:
  (iv)  that the parent, AUTHORIZED RELATIVE OR CLOSE FRIEND or guardian
has a right to supportive services, which shall include  preventive  and
other  supportive  services  authorized  to  be provided pursuant to the
state's consolidated services plan, to visit the child, and to determine
jointly with the agency the terms and frequency of visitation;
  S 4. Subparagraphs (i) and (ii) of paragraph (h) of subdivision  2  of
section 384-a of the social services law, as added by chapter 477 of the
laws of 2000, are amended to read as follows:
  (i)  Where a local social services official determines that a child is
at significant risk of placement in the care and custody  of  the  local
commissioner  of  social services during the eighteen months immediately
following review by such official because the custodial parent or  legal
guardian  of  such  child  is  suffering from a progressively chronic or
irreversibly fatal illness OR MENTAL ILLNESS and it is  determined  that
there  is neither a relative nor a close friend identified by the custo-
dial parent or the legal guardian able to assume legal  guardianship  of
the  child,  the custodial parent or legal guardian shall be assisted by
the local social services district in transferring the care and  custody
of  the child to an authorized agency by a written instrument in accord-
ance with the provisions for this section which  provides  the  transfer
shall  not  take effect until the parent or legal guardian dies, becomes
debilitated or incapacitated as defined in subdivision  one  of  section
seventeen hundred twenty-six of the surrogate's court procedure act.
  (ii) Where a local social services official determines that a child is
at  significant  risk  of placement in the care and custody of the local
commissioner of social services during the eighteen  months  immediately
following  a  review  of  such  official because the custodial parent or
legal guardian is suffering from a progressively chronic or irreversibly
fatal illness OR MENTAL ILLNESS and there is a relative or close  friend
identified  by  the  custodial  parent or legal guardian who is able and
willing to assume care and custody of the child, but who requires foster
care services and financial support thereof pursuant  to  section  three
hundred  ninety-eight-a  of  this article, the custodial parent or legal
guardian shall be assisted by the  local  social  services  district  in
transferring  the  care and custody of the child to an authorized agency
by a written instrument  in  accordance  with  the  provisions  of  this
section.  Such  instrument  shall  provide  that the transfer of custody

A. 7823                             3

shall not take effect until the parent or legal guardian  dies,  becomes
debilitated  or  incapacitated  as defined in subdivision one of section
seventeen hundred twenty-six of the surrogate's court procedure act.  If
otherwise  qualified,  the  social  services  official  shall assist the
person identified to accept care and custody of the child to (A)  become
certified as a foster parent OR (B) RECEIVE SERVICES OR DEVELOP AN INDI-
VIDUALIZED  PLAN,  AGREED UPON BY THE CUSTODIAL PARENT OR LEGAL GUARDIAN
AND THE RELATIVE OR CLOSE FRIEND IDENTIFIED TO ACCEPT CARE  AND  CUSTODY
OF  THE  CHILD, WHICH AIDS SUCH RELATIVE OR CLOSE FRIEND IN THE CARE AND
CUSTODY OF SUCH CHILD. SUCH SERVICES OR PLAN SHALL INCLUDE, BUT  NOT  BE
LIMITED  TO,  TRAINING  WITH  COMMUNITY AGENCIES, RECEIVING SERVICES AND
PARTICIPATING IN PROGRAMS WHICH PROVIDE ASSISTANCE WITH CHILD  CARE  AND
FORMING  PLANS  DEVELOPED,  IN  THE  BEST INTEREST OF THE CHILD, FOR THE
PURPOSES OF PROVIDING A PERMANENT,  STABLE  LIVING  SITUATION  FOR  SUCH
CHILD.
  S  5. The social services law is amended by adding a new section 422-d
to read as follows:
  S 422-D. ESTABLISHMENT OF THE CHILD ADVOCACY AUDIT OFFICE. 1.  FOR THE
PURPOSES OF THIS SECTION:
  (A) "OFFICE" MEANS THE CHILD ADVOCACY AUDIT OFFICE  ESTABLISHED  UNDER
THIS SECTION;
  (B) "DEPARTMENT" MEANS THE DEPARTMENT OF HEALTH; AND
  (C) "DIRECTOR" MEANS THE DIRECTOR OF THE CHILD ADVOCACY AUDIT OFFICE.
  2.  THE  CHILD  ADVOCACY  AUDIT  OFFICE  IS HEREBY ESTABLISHED FOR THE
PURPOSES OF ADMINISTERING AN  AUDIT  OF  PROGRAMS  PUBLICLY  FUNDED  AND
SERVICES  PROVIDED  TO CHILDREN AND FAMILIES THROUGH THE OFFICE OF CHIL-
DREN AND FAMILY SERVICES OR LOCAL SOCIAL SERVICES DISTRICTS.
  3. THE CHILD ADVOCACY AUDIT OFFICE SHALL  CONSIST  OF  REPRESENTATIVES
FROM  THE  CHILD  PROTECTIVE  SERVICE, THE OFFICE OF CHILDREN AND FAMILY
SERVICES AND THE DEPARTMENT. THE DIRECTOR  SHALL  BE  APPOINTED  BY  THE
GOVERNOR,  IN CONSULTATION WITH THE DEPARTMENT, AND SHALL BE AN INDIVID-
UAL WITH EXPERIENCE IN THE AREA OF CHILD WELFARE.
  4. (A) THE CHILD  ADVOCACY  AUDIT  OFFICE  SHALL  CONDUCT  A  DETAILED
PERFORMANCE  EVALUATION  OF  THE  DELIVERY  OF SERVICES BY THE OFFICE OF
CHILDREN AND FAMILY SERVICES, LOCAL SOCIAL SERVICES DISTRICTS AND VOLUN-
TARY AGENCIES, TO CHILDREN IN THE CARE, CUSTODY, OR GUARDIANSHIP OF  THE
OFFICE  OF  CHILDREN  AND  FAMILY  SERVICES  OR  A LOCAL SOCIAL SERVICES
DISTRICT, AND THEIR FAMILIES. THE EVALUATION SHALL  REVIEW  PROGRAMS  OF
PUBLIC  EDUCATION, REVIEW THE INTERACTION WITH COMMUNITY-LINKED SERVICES
ASSISTING  FAMILIES  IN  PREVENTING  CHILD  ABUSE,  REVIEW  THE  PROCESS
CONDUCTED  BY  CHILD  PROTECTIVE  SERVICES  OF  ACCEPTING, SCREENING AND
ASSESSING REPORTS OF CHILD  ABUSE  AND  DETERMINE  HOW  EFFECTIVE  CHILD
PROTECTIVE SERVICES INVESTIGATE CHILD ABUSE REPORTS.
  (B)  SUCH  EVALUATION  SHALL BE CONDUCTED EVERY TWO YEARS AND SHALL BE
CONSOLIDATED INTO A REPORT WHICH THE DIRECTOR SHALL SUBMIT TO THE GOVER-
NOR, THE LEGISLATURE, AND THE COMMISSIONER OF THE OFFICE OF CHILDREN AND
FAMILY SERVICES. SUCH REPORT SHALL INCLUDE RECOMMENDATIONS OF THE OFFICE
FOR THE PURPOSES OF IMPROVING PROGRAMS AND SERVICES ADMINISTERED BY  THE
OFFICE  OF  CHILDREN  AND  FAMILY  SERVICES  OR  A LOCAL SOCIAL SERVICES
DISTRICT.
  5. THE AUDIT REQUIRED PURSUANT TO SUBDIVISION  FOUR  OF  THIS  SECTION
SHALL TAKE APPROPRIATE ACTIONS FOR THE BEST INTEREST OF THE CHILD PLACED
INTO  THE  CARE,  CUSTODY, OR GUARDIANSHIP OF THE OFFICE OF CHILDREN AND
FAMILY SERVICES OR  LOCAL  SOCIAL  SERVICES  DISTRICTS.  THE  OFFICE  IS
AUTHORIZED  FOR THE PURPOSES OF THIS AUDIT AND REPORT TO REVIEW PROGRAMS
OF PUBLIC EDUCATION, PROVIDE INTENSIVE INTERACTION AND VOLUNTARY  REFER-

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RALS  WITH  PROGRAMS  OR COMMUNITY-LINKED SERVICES TO ASSIST FAMILIES IN
THE PREVENTION OF CHILD ABUSE; VISIT FACILITIES,  CENTERS  AND  PROGRAMS
UNDER  THE  OFFICE  OF  CHILDREN  AND  FAMILY  SERVICES  OR LOCAL SOCIAL
SERVICES  DISTRICTS;  AND  REVIEW  AND  INVESTIGATE  COMPLAINTS  MADE OF
PUBLICLY FUNDED PROGRAMS THAT SERVICE CHILDREN AND FAMILIES ADMINISTERED
BY THE OFFICE OF CHILDREN AND FAMILY SERVICES.
  S 6. Paragraph (e) of subdivision 1  of  section  423  of  the  social
services  law, as amended by chapter 309 of the laws of 1996, is amended
to read as follows:
  (e) Except as set forth in paragraph  (f)  of  this  subdivision,  the
child protective service shall be the sole public agency responsible for
receiving  and  investigating, WHICH SHALL INCLUDE BUT NOT BE LIMITED TO
AN INTERVIEW WITH THE CHILD WITHIN FOURTEEN DAYS OF THE REPORT OF  CHILD
ABUSE OR MALTREATMENT, or arranging with the appropriate society for the
prevention  of  cruelty  to children to investigate all reports of child
abuse or maltreatment made pursuant to this title  for  the  purpose  of
providing  protective services to prevent further abuses or maltreatment
to children and to coordinate, provide or arrange for  and  monitor  the
provision  of  those  services  necessary  to  safeguard  and ensure the
child's well-being and development and to preserve and stabilize  family
life wherever appropriate.
  S  7.  This  act shall take effect on the ninetieth day after it shall
have become a law.