BILL NUMBER:S4082

TITLE OF BILL:  An act to amend the family court act and the social
services law, in relation to severe or repeated child abuse in child
protective and termination of parental rights proceedings

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.

In 1981, the State Legislature added subdivision 8 to Social Services
Law § 384-b to create two additional grounds to support terminations
of parental rights: severe or repeated child abuse. See L. 1981, c.
739. These grounds, however, were almost never utilized because of
difficulties of proof. In light of the lower quantum of proof required
for a child abuse finding under Article 10 of the Family Court Act as
compared to that which is required for termination of parental rights
- a preponderance of the evidence as compared to clear and convincing
evidence - the Article 10 child abuse findings that precipitated a
child's entry into foster care could not be used as proof of severe or
repeated child abuse in a subsequent termination of parental rights
proceeding. The original child abuse allegations would thus need to be
retried, often long after the fact, utilizing the higher standard of
proof. In an attempt to obviate the need to retry the child abuse
charges, the Legislature later amended Family Court Act § 1051
regarding fact-finding orders as part of the State statute
              

implementing the Federal Adoption and Safe Families Act [Public Law
105-89]. Family Court was thereby authorized to render an additional
finding of severe or repeated child abuse as part of its fact-finding
order in a child abuse proceeding so long as the requisite proof by
clear and convincing evidence had been adduced. See L. 1999, c. 7.

Although the 1999 statute facilitated greater utilization of the
severe or repeated child abuse grounds for terminations of parental
rights, Family Courts encountered a significant obstacle to making the
additional findings at the stage of the initial child abuse
proceedings. Moreover, the definition of severe abuse has not been
updated since its enactment 30 years ago to incorporate two serious
sexual offenses that were added to the Penal Law in 2006. We submit
this measure to address these problems.

First, the measure would eliminate the need for Family Court to
include a finding regarding provision of diligent efforts in order for
the additional findings that may be rendered in a child protective
proceeding under Article 10 of the Family Court Act to be admissible
in a proceeding to terminate parental rights. Section 1051 would be
amended to provide that, in addition to child abuse findings by a
preponderance of evidence, Family Court may make findings in a child
abuse proceeding by clear and convincing evidence regarding the acts
of abuse or the crimes that comprise the definitions of severe or
repeated child abuse, that is, subparagraphs (i), (ii) and (iii) of
paragraph (a) or subparagraphs (i) and (ii) of paragraph (b),
respectively, of Social Services Law § 384b(8). While these findings
would supply the requisite proof regarding substantive allegations of
abuse or crimes in a later termination of parental rights proceeding
brought on the grounds of severe or repeated child abuse, the agency
would nonetheless retain its obligation to prove the additional


element of diligent efforts - that is, Social Services Law
384-b(8)(a)(iv) or § 384-b(8)(b)(iii), respectively - as part of its
case in chief in the termination proceeding.

The additional findings rendered at the child abuse stage would
obviate the need for the agency to retry the abuse allegations in the
subsequent termination of parental rights proceeding, but diligent
efforts would nonetheless need to be proven at that later stage,
unless excused by the Family Court. In a particularly egregious case,
a child protective agency may move pursuant to Family Court Act
1039-b for an order terminating its obligation to provide reasonable
efforts to enable a child's return home, thus allowing Family Court to
render additional findings that cover all of the elements of the
severe or repeated child abuse definition, including diligent efforts.
However, such motions are rare and more often it would be premature
for Family Court to render a finding regarding diligent efforts to
reunite the family at the early stage of the fact-finding hearing in a
child abuse case. Several appellate cases have reversed severe abuse
findings that had been made in child abuse proceedings where findings
regarding diligent efforts had not been included. See, e.g., Matter of
Leon K, 63 A.D.3d 1069 (2nd Dept., 2011); Matter of Candace S., 38
A.D. 2d 786 (2nd Dept., 2007), lye, app. denied, 9 N.Y.3d 805 (2007);
Matter of Latifah C., 34 A.D.3d 798 (21 Dept., 2006). Without altering
the agency's obligation to meet its burden of proving diligent efforts
as part of its termination of parental rights prima facie case, this
measure would eliminate duplication by permitting the findings from
the initial child abuse case regarding the alleged act or acts of
severe or repeated child abuse to be used in a subsequent termination
of parental rights proceeding.

Second, the measure would add sections 130.95 and 130.96 of the Penal
Law to the list of sexual offenses and other felonies that constitute
severe abuse, as defined in Social Services Law § 384-b(8)(a). These
offenses, both Class A-II felonies, carry criminal penalties for first
offenders of a minimum of 10 to 25 years and a maximum of life
imprisonment, with longer sentences required for repeat and persistent
offenders. The two offenses add aggravating factors to - and are
therefore more serious than - the crimes already listed in Social
Services Law § 384-b(8), specifically, rape in the first degree,
criminal sexual act in the first degree, aggravated sexual abuse in
the first degree and course of sexual conduct against a child in the
first degree. Predatory sexual assault, as defined in Penal Law
130.95, enhances the penalties for these crimes where the offender:
causes serious physical injury to the victim, uses or threatens the
immediate use of a dangerous instrument, commits the crime against one
or more additional persons or has a prior conviction for a felony sex
offense, incest or use of a child in a sexual performance. Predatory
sexual assault against a child, as defined in Penal Law § 130.96,
enhances the penalties where the offender is 18 years of age or older
and commits one of the enumerated crimes against a victim under the
age of 13 years old.  Both of these predatory crimes, among the most
serious crimes in the Penal Law, warrant inclusion in the definition
of "severe abuse," both as grounds for termination of parental rights
and as bases for enhanced findings in child abuse proceedings under
Article 10 of the Family Court Act.


Enactment of this measure would make the promise of permanency a
reality for a group of children in out-of-home care who are most in
need of new, safe and stable families, that is, those who have been
removed from the care of parents who have been found to have committed
the most serious forms of child abuse.

This measure would have no fiscal impact upon the State, and would
take effect immediately.

2012 Legislative History:  Senate 7582 (Sen. Saland) [Rules] Assembly
10051 (M. of A. Paulin, et al) [Passed]