senate Bill S2738

2011-2012 Legislative Session

Relates to evidence of child neglect where respondent is enrolled in drug rehabilitation program

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to children and families
Jan 31, 2011 referred to children and families

S2738 - Bill Details

Current Committee:
Law Section:
Family Court Act
Laws Affected:
Amd ยงยง1012, 1946 & 1052, Fam Ct Act

S2738 - Bill Texts

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Relates to evidence of child neglect where respondent is enrolled in drug rehabilitation program.

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BILL NUMBER:S2738

TITLE OF BILL:
An act
to amend the family court act, in relation to evidence of child
neglect where the respondent is voluntarily and regularly
participating in a recognized drug rehabilitation program and
requiring enrollment in rehabilitative
programs

PURPOSE:
To make enrollment in a drug program a factor at the dispositional
phase of a child neglect proceeding rather than an affirmative
defense to a finding of neglect.

SUMMARY OF PROVISIONS:
Section one amends subparagraph (B) of paragraph (i) of subdivision
(f) of section 1012 of the Family Court Act to delete the language
related to participation in a rehabilitation program, together with
the presumption related to participation in such program.

Section two amends paragraph (iii) of subdivision (a) of section 1046
of the Family Court Act to delete the language related to the
exception provided by participation in a rehabilitation program.

Section three adds a new subdivision (d) to section 1052 of the Family
Court Act to provide that, following an adjudication of neglect where
the respondent has been found to be misusing drugs or alcoholic
beverages to the extent that self-control of his or her actions is
lost, the court shall at the time of the final order of disposition,
take into consideration the enrollment and satisfactory participation
of the respondent in a recognized rehabilitation program, and the
court may in connection with such order of disposition require the
respondent to enroll and participate in such a pro gram.

EXISTING LAW:
Provides that enrollment in a drug rehabilitation program is an
affirmative defense to a finding of child neglect on drug abuse
grounds.

JUSTIFICATION:
Under current legislation, the respondent's voluntary and regular
participation in a recognized rehabilitation program would exclude a
presumption of neglect of the child in care, even where there has
been evidence of repeated misuse of drugs or alcoholic beverages.
Voluntary attendance in such a program is no assurance that drug or
alcohol abuse has ceased as the respondent may still get obtain
controlled substances on the streets. Also, the respondent may have
returned to the misuse of drug and alcohol after completion of a
rehabilitation program.

This exclusion of the normal presumption is confusing to child
protective workers, lawyers and the courts and acts against the
interests of children. It is unclear how the exception affects the
burden of proof and whether participation in a rehabilitation program
is a defense to an allegation of child neglect. This confusion has


been exacerbated as the number of neglect and abuse allegations
involving drug use by a parent has increased enormously in recent
years.

This legislation would clarify the law by retaining the presumption
that misuse of drugs or alcohol constitutes a prima facie case of
abuse or neglect. The participation of the parent in a rehabilitation
program would be considered by the judge at disposition, along with
other factors.
The participation in the program would not, and should not, constitute
a rebuttal of the presumption. It would be subject to the
determination, based on the preponderance of the evidence, of what is
in the best interest of the child. Further, the court may order the
respondent, as part of the disposition, to enroll in a rehabilitation
program to receive needed treatment.

LEGISLATIVE HISTORY:
2007-2008: S.1075 - Referred to Social Services, Children and Families
2005-2006: S.467 - Referred to Social Services, Children and Families
2003-2004: S.1917 - Passed Senate
2001-2002: S.395 - Passed Senate
2000: S.2722 - Passed Senate
1997-98: S.489 - Passed Senate
1995-96: S.2104 - Passed Senate
1993-94: S.3379 - Passed Senate

FISCAL IMPLICATIONS:
None.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
One hundred twenty days after it shall have become law.

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

                                  2738

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 31, 2011
                               ___________

Introduced  by  Sen.  SALAND -- 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, in relation to evidence  of  child
  neglect  where the respondent is voluntarily and regularly participat-
  ing in a recognized drug rehabilitation program and requiring  enroll-
  ment in rehabilitative programs

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

  Section 1. Subparagraph (B) of paragraph (i)  of  subdivision  (f)  of
section  1012  of the family court act, as amended by chapter 984 of the
laws of 1981, is amended to read as follows:
  (B) in providing the child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted harm, or a  substan-
tial  risk  thereof,  including  the  infliction  of  excessive corporal
punishment; or by misusing a drug or drugs;  or  by  misusing  alcoholic
beverages to the extent that he loses self-control of his actions; or by
any  other  acts  of a similarly serious nature requiring the aid of the
court[; provided, however, that where the respondent is voluntarily  and
regularly  participating  in a rehabilitative program, evidence that the
respondent has repeatedly misused a drug or drugs or alcoholic beverages
to the extent that he loses self-control of his actions shall not estab-
lish that the child is a neglected child  in  the  absence  of  evidence
establishing  that  the  child's physical, mental or emotional condition
has been impaired or is in imminent danger of becoming impaired  as  set
forth in paragraph (i) of this subdivision]; or
  S  2. Paragraph (iii) of subdivision (a) of section 1046 of the family
court act, as amended by chapter 984 of the laws of 1981, is amended  to
read as follows:
  (iii)  proof that a person repeatedly misuses a drug or drugs or alco-
holic beverages, to the extent that it has or would ordinarily have  the
effect  of  producing in the user thereof a substantial state of stupor,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05322-01-1

S. 2738                             2

unconsciousness, intoxication, hallucination, disorientation, or  incom-
petence,  or  a  substantial  impairment  of  judgment, or a substantial
manifestation of irrationality, shall be prima  facie  evidence  that  a
child  of  or  who  is  the  legal  responsibility  of  such person is a
neglected child [except that such  drug  or  alcoholic  beverage  misuse
shall  not be prima facie evidence of neglect when such person is volun-
tarily  and  regularly  participating  in  a  recognized  rehabilitative
program]; and
  S  3.  Section 1052 of the family court act is amended by adding a new
subdivision (d) to read as follows:
  (D) PRIOR TO GRANTING AN ORDER OF DISPOSITION IN A PROCEEDING  WHEREIN
THE  RESPONDENT  HAS  BEEN  FOUND TO HAVE MISUSED A DRUG OR DRUGS, OR TO
HAVE MISUSED ALCOHOLIC BEVERAGES TO THE EXTENT  THAT  HE  OR  SHE  LOSES
SELF-CONTROL OF HIS OR HER ACTIONS, THE COURT SHALL CONSIDER WHETHER THE
RESPONDENT  HAS  ENROLLED  IN A RECOGNIZED REHABILITATIVE PROGRAM AND IS
PARTICIPATING THEREIN IN A REGULAR  AND  SATISFACTORY  MANNER,  AND  THE
COURT  MAY REQUIRE THE RESPONDENT TO ENROLL IN AND PARTICIPATE IN SUCH A
PROGRAM IN CONNECTION WITH ANY ORDER OF DISPOSITION MADE UNDER  SUBDIVI-
SION (A) OF THIS SECTION.
  S  4.    This  act  shall take effect on the one hundred twentieth day
after it shall have become a law.

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