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

                                  6877

                            I N  S E N A T E

                            February 19, 2010
                               ___________

Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Children and Families

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is REPEALED.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.
        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:

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

                                                           LBD06023-05-0

S. 6877                             2

  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
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-

S. 6877                             3

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.
  (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

S. 6877                             4

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-
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

S. 6877                             5

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.