NY State Senate Bill 2009-S3870

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
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Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to children and families
Apr 02, 2009	referred to children and families

2009-S3870 (ACTIVE) - Details

Current Committee:: Senate Children And Families
Law Section:: Family Court Act
Laws Affected:: Amd §§115, 1012, 1013, 1016, 1021 & 1051, rpld §1059, Fam Ct Act; amd §398, Soc Serv L

2009-S3870 (ACTIVE) - Summary

Relates to child protective and permanency proceedings for destitute children.

2009-S3870 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3870

 TITLE OF BILL :
An act to amend the family court act and the social services law, in
relation to destitute children in child protective and permanency
proceedings in the family court; and to repeal certain provisions of
the family court act relating thereto


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

Prior to enactment of omnibus permanency legislation in 2005  L. 2005,
c. 3 .  proceedings to initiate and review the placement of destitute
children in foster care were commenced by petitions brought pursuant
to section 392 of the Social Services Law. That legislation, however,
repealed section 392, leaving no procedural vehicle for placement of
such children into foster care, where necessary, and for periodic
review of that placement. Accordingly, this measure would amend
Article 10 of the Family Court Act to create a new no-fault cause of
action to serve as that vehicle. Recognizing that, as the definition
of "destitute child" in section 371 of the Social Services Law
specifies, this status arises through no fault of the parents - that
is, where there are no parents who can be held financially responsible
for the child's support - the measure would designate "destitute"

child as a category of child in need of protection as distinct from an
"abused" or "neglected" child. In so doing, the measure would provide
the procedural vehicle for fulfilling the State Constitutional mandate
to provide care and assistance to the needy.  See N.Y. Constitution,
Art. XVII.

That destitute children currently fall into a procedural void is clear
from the recent case of Matter of Nurayah J., 41 A.D.3d 477 (2d Dept.,
2007). In that case, a mother, who was herself a foster child, was
charged with neglect of her baby. The Appellate Division, Second
Department, found that Family Court properly dismissed the neglect
charge as without merit, but held the county responsible for caring
for the baby as a destitute child under sections 371 and 398 of the
Social Services Law. However, neither of those provisions delineate
any court process for approving and periodically reviewing placement
of such a child.  Thus, although the county is responsible, Family
Court has no means of ensuring that appropriate plans are made for the
child either to be reunified with parents, cared for by relatives,
placed for adoption or provided with transitional or independent
living services. This measure would fill this statutory gap.

The measure would establish "destitute child," as the term is defined
in section 371 of the Social Services Law, as a discrete category of
child protective proceeding, with the attendant due process
protections for parents and children that apply in all proceedings
brought under Article 10 of the Family Court Act and with the social
services, casework and permanency planning applicable to those
proceedings. It would specifically authorize temporary placements upon
the parents' consent, pursuant to section 1q21 of the Family Court
Act, as well as each of the dispositional alternatives available in
section 1052 of the Act. Further, section 1051 of the Act would be
amended to include a discrete finding that a child is "destitute," as
distinct from "abused" or "neglected." Where a destitute child is ..
placed, pursuant to section 1055 of the Act, the placement would be
reviewed, as are all other placements, through permanency hearings
under Article 10-A and the child and family would have all of the
rights to services and planning applicable under the permanency
statute. Similar amendments would be made to section 398 of the Social
Services Law to delineate the responsibility of local social services

departments to provide care and support for destitute children and, in
appropriate cases, to petition the Family Court.

Finally, the measure would repeal section 1059 of the Family Court
Act, as it is anachronistic and conflicts with more recent legislation
regarding abandoned children.

This measure would take effect immediately.

 2008 LEGISLATIVE HISTORY :

S.4544 (Social Services, Children + Families Comm.)/A.8750 (3rd
reading)

2009-S3870 (ACTIVE) - Bill Text download pdf

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

                                  3870

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 2, 2009
                               ___________

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  destitute  children  in  child protective and permanency
  proceedings in the family court; and to repeal certain  provisions  of
  the family court act relating thereto

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

  Section 1. Subdivision (c) of section 115 of the family court act,  as
amended  by  section  1  of  part A of chapter 3 of the laws of 2005, is
amended to read as follows:
  (c) The family court has such other jurisdiction  as  is  provided  by
law,  including  but not limited to: proceedings concerning adoption and
custody of children, as set forth in parts two and three of article  six
of  this  act;  proceedings  concerning  the  uniform  interstate family
support act, as set forth in article five-B  of  this  act;  proceedings
concerning  children in foster care and care and custody of children, as
set forth in sections three  hundred  fifty-eight-a  and  three  hundred
eighty-four-a  of the social services law and article ten-A of this act;
proceedings concerning DESTITUTE CHILDREN, AS SET FORTH IN ARTICLES  TEN
AND  TEN-A  OF THIS ACT; PROCEEDINGS CONCERNING guardianship and custody
of children by reason of the death of, or abandonment or  surrender  by,
the  parent  or  parents, as set forth in sections three hundred eighty-
three-c, three hundred eighty-four and paragraphs (a) and (b) of  subdi-
vision  four  of  section  three  hundred  eighty-four-b  of  the social
services law; proceedings concerning standby guardianship and  guardian-
ship  of the person as set forth in part four of article six of this act
and article seventeen  of  the  surrogate's  court  procedure  act;  and
proceedings  concerning the interstate compact on juveniles as set forth
in chapter one hundred  fifty-five  of  the  laws  of  nineteen  hundred

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10365-01-9

S. 3870                             2

fifty-five, as amended, the interstate compact on the placement of chil-
dren, as set forth in section three hundred seventy-four-a of the social
services law, and the uniform child custody jurisdiction and enforcement
act, as set forth in article five-A of the domestic relations law.
  S  2.  Paragraph (ii) of subdivision (f) of section 1012 of the family
court act, as amended by chapter 666 of the laws of 1976, is amended and
a new paragraph (iii) is added to read as follows:
  (ii) 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 parents or other person
legally responsible for his care[.]; OR
  (III) WHO IS DESTITUTE, AS DEFINED IN  SUBDIVISION  THREE  OF  SECTION
THREE HUNDRED SEVENTY-ONE OF THE SOCIAL SERVICES LAW.
  S 3. Subdivision (a) of section 1013 of the family court act, as added
by chapter 962 of the laws of 1970, is amended to read as follows:
  (a)   The  family  court  has  exclusive  original  jurisdiction  over
proceedings under this article alleging [the abuse or neglect of] THAT a
child IS ABUSED, NEGLECTED OR DESTITUTE.
  S 4. The section heading and the opening paragraph of section 1016  of
the  family  court act, as added by chapter 319 of the laws of 1990, are
amended to read as follows:
  Appointment of [law guardian] ATTORNEY FOR THE CHILD.  The court shall
appoint [a law guardian] AN ATTORNEY to represent a child who  has  been
allegedly  abused  or  neglected  OR IS ALLEGED TO BE DESTITUTE upon the
earliest occurrence of any of the following:  (i)  the  court  receiving
notice,  pursuant  to  paragraph (iv) of subdivision (b) of section [ten
hundred] ONE THOUSAND twenty-four of this act, of the emergency  removal
of  the child; (ii) an application for an order for removal of the child
prior to the filing of a petition,  pursuant  to  section  one  thousand
twenty-two  of  this  act;  or  (iii)  the filing of a petition alleging
[abuse or neglect] THAT THE CHILD  IS  ABUSED,  NEGLECTED  OR  DESTITUTE
pursuant to this article.
  S 5. Section 1021 of the family court act, as amended by section 12 of
part A of chapter 3 of the laws of 2005, is amended to read as follows:
  S 1021. Temporary removal with consent. A peace officer, acting pursu-
ant  to  his or her special duties, or a police officer or an agent of a
duly authorized agency, association, society or institution  may  tempo-
rarily  remove  a  child from the place where he or she is residing with
the written consent of his or her parent or other person legally respon-
sible for his or her care, if the child is suspected  to  be  an  abused
[or],  neglected  OR  DESTITUTE child under this article. The officer or
agent shall, coincident with consent or removal, give written notice  to
the  parent  or other person legally responsible for the child's care of
the right to apply to the family court  for  the  return  of  the  child
pursuant  to  section  one thousand twenty-eight of this article, and of
the right to be represented by counsel and the procedures for those  who
are  indigent  to obtain counsel in proceedings brought pursuant to this
article. Such notice shall also include the name,  title,  organization,
address and telephone number of the person removing the child; the name,
address and telephone number of the authorized agency to which the child
will  be  taken, if available; and the telephone number of the person to
be contacted for visits with the child. A copy of the instrument whereby
the parent or legally responsible person has given such consent to  such
removal shall be appended to the petition alleging [abuse or neglect of]
THAT the removed child IS ABUSED, NEGLECTED OR DESTITUTE and made a part
of  the permanent court record of the proceeding. A copy of such instru-

S. 3870                             3

ment and notice of the telephone number of the child  protective  agency
to  contact  to  ascertain the date, time and place of the filing of the
petition and of the hearing that will be held pursuant  to  section  one
thousand  twenty-seven  of  this article shall be given to the parent or
legally responsible person. Unless the child is returned sooner, a peti-
tion shall be filed within three court days from the date of removal. In
such a case, a hearing shall be held no later than the  next  court  day
after  the  petition  is  filed  and  findings shall be made as required
pursuant to section one thousand twenty-seven of this article.
  S 6. Subdivision (a) of section 1051  of  the  family  court  act,  as
amended  by  chapter  160  of  the  laws  of 1987, is amended to read as
follows:
  (a) If facts sufficient to sustain the  petition  are  established  in
accord  with  part  four of this article, or if all parties and the [law
guardian] ATTORNEY FOR THE CHILD consent, the court  shall,  subject  to
the  provisions of subdivision (c) of this section, enter an order find-
ing that the child is an abused child  [or],  a  neglected  child  OR  A
DESTITUTE CHILD and shall state the grounds for the finding.
  S  7.  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 A CHILD alleged [neglect] TO BE
NEGLECTED OR DESTITUTE, 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.
  S  8.  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] THAT A CHILD
HAS BEEN ABUSED OR NEGLECTED OR IS DESTITUTE, it shall determine,  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 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 OR DESTITUTE may be removed  and  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 probabil-
ity  that  the  final order of disposition will be an order of placement
under section one thousand fifty-five OF THIS  ARTICLE.  In  determining
whether  substantial  probability  exists,  the court shall consider the
requirements of subdivision (b) of section  one  thousand  fifty-two  OF
THIS ARTICLE.
  S 9. Section 1059 of the family court act is REPEALED.
  S  10.  Subdivision  1  of  section  398 of the social services law is
amended to read as follows:
  1. As to destitute children: Assume charge of  and  provide  CARE  AND
support  for any destitute child who cannot be properly cared for in his
OR HER home, AS PROVIDED IN SUBDIVISION  TWO  OF  THIS  SECTION  AND  AS
ORDERED  BY  THE  FAMILY COURT PURSUANT TO ARTICLES TEN AND TEN-A OF THE
FAMILY COURT ACT.
  S 11. The opening paragraph and paragraph  (a)  of  subdivision  2  of
section 398 of the social services law, as amended by chapter 880 of the
laws of 1976, are amended to read as follows:

S. 3870                             4

  As to neglected, abused [or], abandoned OR DESTITUTE children:
  (a) Investigate [the] ANY alleged neglect, abuse, DESTITUTION or aban-
donment  of  a child, offer protective social services to prevent injury
to the child, to safeguard his OR HER welfare[,]  and  to  preserve  and
stabilize  family  life wherever possible, and, if necessary, [bring the
case before] PROMPTLY PETITION the family  court  for  adjudication  and
care  for the child [until the court acts in the matter and, in the case
of an abandoned child, shall  promptly  petition  the  family  court  to
obtain custody of such child].
  S  12.  Paragraph  (b)  of  subdivision 2 of section 398 of the social
services law, as amended by chapter 555 of the laws of 1978, is  amended
to read as follows:
  (b)  Receive  and  care  for any child alleged to be neglected, abused
[or], abandoned OR DESTITUTE, who is temporarily  placed  in  [his]  THE
care  OF THE LOCAL COMMISSIONER by the family court pending adjudication
by such court of the alleged neglect, abuse [or], abandonment OR FINDING
THAT THE CHILD IS A DESTITUTE CHILD, including the authority  to  estab-
lish,  operate,  maintain  and  approve  facilities  for such purpose in
accordance with the regulations of the [department] OFFICE  OF  CHILDREN
AND  FAMILY  SERVICES;  and  receive  and care for any neglected, abused
[or], abandoned OR DESTITUTE child placed [or discharged to his] IN  THE
care OF THE LOCAL COMMISSIONER by the family court.
  S 13. This act shall take effect immediately.
  REPEAL  NOTE:  Section  1059,  proposed  to  be  repealed by this act,
provides that children found to be abandoned are to be discharged to the
custody of the local commissioner of social services, who shall care for
them as  destitute  children  and  institute  proceedings  to  terminate
parental rights.

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Senate Bill S3870

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

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2009-S3870 (ACTIVE) - Details

2009-S3870 (ACTIVE) - Summary

2009-S3870 (ACTIVE) - Sponsor Memo

2009-S3870 (ACTIVE) - Bill Text download pdf

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Sponsored By

Velmanette Montgomery

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

Actions

2009-S3870 (ACTIVE) - Details

2009-S3870 (ACTIVE) - Summary

2009-S3870 (ACTIVE) - Sponsor Memo

2009-S3870 (ACTIVE) - Bill Text download pdf

Comments