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

                                  3358

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 25, 2013
                               ___________

Introduced by M. of A. LAVINE -- read once and referred to the Committee
  on Children and Families

AN  ACT to amend the family court act and the domestic relations law, in
  relation to abandoned infants

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

  Section  1.  Section 1012 of the family court act is amended by adding
a new subdivision (f-1) to read as follows:
  (F-1) A CHILD IS AN "ABANDONED INFANT" WHEN THE COURT ENTERS AN  ORDER
PURSUANT  TO  SECTION ONE THOUSAND FIFTY-ONE-A OF THIS ARTICLE THAT SUCH
CHILD IS NOT MORE THAN THIRTY DAYS OLD AND WHO HAS BEEN LEFT BY  HIS  OR
HER  PARENT  IN  A MANNER WHICH INDICATES INTENT TO SURRENDER AND RELIN-
QUISH ALL RESPONSIBILITY FOR THE CARE OF SUCH CHILD.
  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 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 OR HER parents or other
person legally responsible for his OR HER care, BUT SHALL NOT INCLUDE AN
ABANDONED INFANT AS DEFINED IN SUBDIVISION (F-1) OF THIS SECTION.
  S 3. Subdivision (j) of section 1012  of  the  family  court  act,  as
amended  by  section  3  of  part B of chapter 3 of the laws of 2005, is
amended to read as follows:
  (j) "Aggravated circumstances" means where a  child  has  been  either
severely  or  repeatedly  abused,  as  defined  in  subdivision eight of
section three hundred eighty-four-b of the social services law; OR WHERE
A CHILD HAS BEEN DETERMINED  TO  BE  AN  ABANDONED  INFANT  PURSUANT  TO
SECTION  ONE  THOUSAND FIFTY-ONE-A OF THIS ARTICLE; or where a child has
subsequently been found to be an abused child, as defined  in  paragraph
(i) or (iii) of subdivision (e) of this section, within five years after

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05819-01-3
              

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return  home  following  placement  in  foster care as a result of being
found to be a neglected child, as defined in  subdivision  (f)  of  this
section,  provided  that  the  respondent  or respondents in each of the
foregoing  proceedings  was  the same; or where the court finds by clear
and convincing evidence that the parent of a child in  foster  care  has
refused  and has failed completely, over a period of at least six months
from the date of removal, to engage in services necessary  to  eliminate
the  risk  of abuse or neglect if returned to the parent, and has failed
to secure services on his or her own or otherwise adequately prepare for
the return home and, after being informed by  the  court  that  such  an
admission  could  eliminate the requirement that the local department of
social services provide reunification services to the parent, the parent
has stated in court under oath that he or she  intends  to  continue  to
refuse  such necessary services and is unwilling to secure such services
independently  or  otherwise  prepare  for  the  child's  return   home;
provided,  however,  that if the court finds that adequate justification
exists for the failure to engage in or secure such  services,  including
but  not  limited to a lack of child care, a lack of transportation, and
an inability to attend services that conflict  with  the  parent's  work
schedule,  such failure shall not constitute an aggravated circumstance;
or where a court has determined a child [five] THIRTY days old or young-
er was abandoned by a parent with an intent to wholly abandon such child
and with the intent that the child be  safe  from  physical  injury  and
cared for in an appropriate manner.
  S 4. Section 1042 of the family court act, as amended by chapter 41 of
the laws of 2010, is amended to read as follows:
  S  1042.  Effect  of absence of parent or other person responsible for
care. If the parent or other person legally responsible for the  child's
care is not present, the court may proceed to hear a petition under this
article only if the child is represented by counsel. The parent or other
person  legally  responsible for the child's care shall be served with a
copy of the order of disposition with written notice of its entry pursu-
ant to section one thousand thirty-six of this article. Within one  year
of  such service or substituted service pursuant to section one thousand
thirty-six of this article, the parent or other person legally responsi-
ble for the child's care may move to vacate the order of disposition and
schedule a rehearing. Such motion shall be granted on an affidavit show-
ing such relationship or responsibility and a meritorious defense to the
petition, unless THE CHILD HAS BEEN DECLARED AN ABANDONED INFANT  PURSU-
ANT  TO SECTION ONE THOUSAND FIFTY-ONE-A OF THIS ARTICLE AND THE PARENTS
HAVE FAILED TO ASSERT A CLAIM OF CUSTODY  WITHIN  THE  TIME  PERIOD  SET
FORTH  IN  SUCH  SECTION,  OR  the  court finds that the parent or other
person willfully refused to appear at the hearing,  in  which  case  the
court may deny the motion.
  S  5.  Paragraph (ii) of subdivision (b) of section 1055 of the family
court act, as amended by section 18 of part A of chapter 3 of  the  laws
of 2005, is amended to read as follows:
  (ii) (A) Upon placing a child under the age of one, who has been aban-
doned  AS  DEFINED  IN  PARAGRAPH (II) OF SUBDIVISION (F) OF SECTION ONE
THOUSAND TWELVE OF THIS ARTICLE, with a  local  commissioner  of  social
services,  the  court  shall,  where either of the parents do not appear
after due notice, include  in  its  order  of  disposition  pursuant  to
section  one  thousand  fifty-two  of  this  part, a direction that such
commissioner shall promptly commence a diligent  search  to  locate  the
child's non-appearing parent or parents or other known relatives who are
legally  responsible  for  the  child,  and  to commence a proceeding to

A. 3358                             3

commit the guardianship and custody of such child to an authorized agen-
cy pursuant  to  section  three  hundred  eighty-four-b  of  the  social
services  law,  six  months  from  the date that care and custody of the
child  was transferred to the commissioner, unless there has been commu-
nication and visitation between such child and such parent or parents or
other known relatives or persons legally responsible for the  child.  In
addition  to  such  diligent  search  the  local  commissioner of social
services shall provide written notice to the child's parent  or  parents
or  other known relatives or persons legally responsible as provided for
in this paragraph. Such notice shall  be  served  upon  such  parent  or
parents  or  other known relatives or persons legally responsible in the
manner required for service of process pursuant to section  six  hundred
seventeen  of  this  act.  Information  regarding  such diligent search,
including, but not limited to, the  name,  last  known  address,  social
security  number,  employer's address and any other identifying informa-
tion to the extent known regarding the non-appearing  parent,  shall  be
recorded  in the uniform case record maintained pursuant to section four
hundred nine-f of the social services law.
  (B) AN ABANDONED INFANT, AS DEFINED IN SUBDIVISION  (F-1)  OF  SECTION
ONE  THOUSAND  TWELVE  OF  THIS  ARTICLE,  SHALL  NOT  BE SUBJECT TO THE
REQUIREMENTS OF SUBPARAGRAPH (A) OF THIS PARAGRAPH.
  S 6. The family court act is amended by adding a new section 1031-a to
read as follows:
  S 1031-A. ABANDONED INFANTS. (A) A PROCEEDING TO DETERMINE  WHETHER  A
CHILD IS AN ABANDONED INFANT SHALL BE COMMENCED WITHIN SIX BUSINESS DAYS
OF  A LOCAL COMMISSIONER OF SOCIAL SERVICES RECEIPT OF NOTIFICATION THAT
A CHILD ALLEGED TO BE AN ABANDONED INFANT HAS BEEN FOUND IN  THE  JURIS-
DICTION OF THE LOCAL SOCIAL SERVICES AGENCY.
  (B)  THE  PETITION  SHALL ALLEGE THE FACTS SURROUNDING THE HISTORY AND
CURRENT CUSTODY OF THE CHILD, INCLUDING BUT NOT LIMITED TO:
  (I) THE LOCATION THE CHILD WAS SURRENDERED OR ABANDONED;
  (II) THE DATE OF SUCH OCCURRENCE;
  (III) THE AFFIDAVIT OF THE LICENSED PHYSICIAN CERTIFYING  SUCH  PHYSI-
CIAN'S DETERMINATION AS TO THE AGE OF THE INFANT;
  (IV)  THE  NAMES AND ADDRESSES OF ANY PROSPECTIVE FOSTER CARE OR ADOP-
TIVE HOMES; AND
  (V) ANY OTHER INFORMATION THAT WOULD FACILITATE THE  COURT'S  DETERMI-
NATION.
  (C)  THE  PETITION  SHALL ALSO MAKE AN APPLICATION PURSUANT TO SECTION
ONE THOUSAND THIRTY-NINE-B OF THIS PART FOR THE COURT TO DETERMINE  THAT
REASONABLE  EFFORTS  TO  RETURN  THE  CHILD  TO  HIS OR HER HOME ARE NOT
REQUIRED BASED UPON A FINDING THAT THE CHILD HAS BEEN DECLARED AN  ABAN-
DONED INFANT.
  (D) THE COURT SHALL APPOINT AN ATTORNEY FOR THE CHILD TO REPRESENT THE
INTERESTS OF ANY CHILD NAMED IN A PETITION WHO IS ALLEGED TO BE AN ABAN-
DONED INFANT.
  (E)  NO  PROCEEDING  MAY  CONTINUE UNDER THIS SECTION UNLESS THE COURT
ENTERS A FINDING:
  (I) THAT THE CHILD WAS NOT MORE THAN THIRTY DAYS OLD AT  THE  TIME  OF
THE ABANDONMENT; AND
  (II) THAT THE PARENT LEFT THE CHILD IN A MANNER WHICH INDICATES INTENT
TO  SURRENDER  AND  RELINQUISH  ALL  RESPONSIBILITY FOR THE CARE OF SUCH
CHILD.
  (F) ALL AUTHORITY GRANTED TO THE LOCAL COMMISSIONER OF SOCIAL SERVICES
RELATING TO THE CARE AND CUSTODY OF THE INFANT PURSUANT  TO  THE  SOCIAL
SERVICES LAW SHALL CONTINUE UNTIL FURTHER ORDER OF THE COURT.

A. 3358                             4

  S 7. The family court act is amended by adding a new section 1051-a to
read as follows:
  S  1051-A.  SUSTAINING  OR DISMISSING A PETITION ALLEGING AN ABANDONED
INFANT. (A) IF FACTS SUFFICIENT TO SUSTAIN A PETITION UNDER SECTION  ONE
THOUSAND  THIRTY-ONE-A  OF THIS ARTICLE ARE ESTABLISHED, THE COURT SHALL
ENTER AN ORDER FINDING THAT THE CHILD IS AN ABANDONED INFANT  AND  SHALL
STATE IN ITS ORDER:
  (I)  THAT,  WITHIN  A  REASONABLE MEDICAL CERTAINTY, THE CHILD WAS NOT
MORE THAN THIRTY DAYS OLD WHEN HE OR SHE WAS ABANDONED;
  (II) THE DATE THE CHILD WAS BORN, WITHIN A REASONABLE MEDICAL CERTAIN-
TY;
  (III) THAT THE CHILD WAS LEFT IN A MANNER THAT INDICATED  HIS  OR  HER
PARENT'S  INTENT  TO RELINQUISH RESPONSIBILITY FOR AND RIGHT TO THE CARE
AND CUSTODY OF SUCH CHILD;
  (IV) THAT BASED UPON THE FINDINGS OF PARAGRAPHS (I) AND (III) OF  THIS
SUBDIVISION,  THE  CHILD  IS AN ABANDONED INFANT PURSUANT TO SUBDIVISION
(F-1) OF SECTION ONE THOUSAND TWELVE OF THIS ARTICLE; AND
  (V) THAT BASED UPON SUCH  FINDING  THAT  THE  CHILD  IS  AN  ABANDONED
INFANT,  REASONABLE  EFFORTS  TO RETURN THE CHILD TO HIS OR HER HOME ARE
NOT REQUIRED.
  (B) (I) IF FACTS SUFFICIENT TO SUSTAIN THE PETITION UNDER SECTION  ONE
THOUSAND  THIRTY-ONE-A  OF  THIS  ARTICLE ARE NOT ESTABLISHED DUE TO THE
CHILD BEING MORE THAN THIRTY DAYS OLD AT THE  TIME  OF  ABANDONMENT  THE
COURT  SHALL  CONVERT  THE PETITION TO A PROCEEDING TO DETERMINE NEGLECT
PURSUANT TO SECTION ONE THOUSAND THIRTY-ONE OF THIS  ARTICLE  AND  SHALL
STATE ON THE RECORD THE GROUNDS FOR THE CONVERSION. TEMPORARY CUSTODY OF
THE  CHILD  SHALL  CONTINUE UNTIL FURTHER ORDER OF THE COURT.  THE COURT
SHALL ALSO REFER THE  MATTER  TO  THE  APPROPRIATE  DISTRICT  ATTORNEY'S
OFFICE AND DIRECT THE LOCAL COMMISSIONER OF SOCIAL SERVICES TO ORIGINATE
A PROCEEDING UNDER SECTION ONE THOUSAND THIRTY-ONE OF THIS ARTICLE WITH-
IN SEVEN DAYS.
  (II)  IF  THE  FACTS  SUFFICIENT  TO  SUSTAIN  THE PETITION UNDER THIS
SECTION ARE NOT ESTABLISHED DUE TO AN INABILITY TO DETERMINE THE  INTENT
OF  THE PARENT OR PARENTS THEN THE COURT SHALL CONVERT THE PETITION TO A
PROCEEDING TO DETERMINE NEGLECT PURSUANT TO SECTION ONE  THOUSAND  THIR-
TY-ONE OF THIS ARTICLE AND SHALL STATE ON THE RECORD THE GROUNDS FOR THE
CONVERSION.  TEMPORARY CUSTODY OF THE CHILD SHALL CONTINUE UNTIL FURTHER
ORDER OF THE COURT.  FOR THE PURPOSES OF THIS PARAGRAPH, ABANDONMENT  IN
THE  MANNER  PRESCRIBED  BY  SECTION  260.00  OF  THE PENAL LAW SHALL BE
PRESUMPTIVE EVIDENCE OF INTENT TO SURRENDER AND RELINQUISH ALL RESPONSI-
BILITY FOR THE CARE OF SUCH CHILD.
  (C) THE COURT SHALL COMMENCE A DISPOSITIONAL HEARING IMMEDIATELY  UPON
COMPLETION OF THE FACT-FINDING HEARING. AT THE CONCLUSION OF SUCH DISPO-
SITIONAL HEARING THE COURT SHALL ENTER AN ORDER OF DISPOSITION:
  (I)  PLACING  THE  CHILD  IN  THE CUSTODY OF THE LOCAL COMMISSIONER OF
SOCIAL SERVICES IN ACCORD WITH THE PROVISIONS OF  SECTION  ONE  THOUSAND
FIFTY-FIVE OF THIS PART, UPON A DETERMINATION THAT:
  (A)  CONTINUATION  IN  THE  CHILD'S HOME WOULD BE CONTRARY TO THE BEST
INTERESTS OF THE CHILD; AND
  (B) WHERE THE COURT HAS DETERMINED THAT  THE  CHILD  IS  AN  ABANDONED
INFANT, REASONABLE EFFORTS TO PREVENT OR ELIMINATE THE NEED FOR REMOVING
THE  CHILD  FROM HIS OR HER HOME OR TO MAKE IT POSSIBLE FOR THE CHILD TO
RETURN SAFELY TO HIS OR HER HOME ARE NOT REQUIRED;
  (II) REQUIRING THE LOCAL COMMISSIONER OF SOCIAL SERVICES TO COMMENCE A
PROCEEDING TO COMMIT THE GUARDIANSHIP AND CUSTODY OF SUCH  CHILD  TO  AN
AUTHORIZED AGENCY PURSUANT TO SECTION THREE HUNDRED EIGHTY-FOUR-B OF THE

A. 3358                             5

SOCIAL  SERVICES  LAW  IN SIXTY DAYS, PROVIDED THAT NO PETITION HAS BEEN
BROUGHT PURSUANT TO SECTION ONE THOUSAND SIXTY-ONE-A  OF  THIS  ARTICLE.
UPON  RECEIVING  SUCH  PETITION, THE COURT SHALL SCHEDULE A DATE CERTAIN
FOR  THE  FACT-FINDING AND DISPOSITIONAL HEARING REGARDING SUCH PETITION
WHICH SHALL BE NINETY DAYS FROM THE DATE THAT THE CHILD WAS FOUND TO  BE
AN ABANDONED INFANT PURSUANT TO THIS SECTION;
  (III)  REQUIRING  THE  LOCAL  COMMISSIONER OF SOCIAL SERVICES TO CAUSE
NOTICE OF THE PROCEEDING INSTITUTED PURSUANT TO  SECTION  THREE  HUNDRED
EIGHTY-FOUR-B  OF  THE SOCIAL SERVICES LAW TO BE PUBLISHED IN ACCORDANCE
WITH THE PROVISIONS OF RULE THREE HUNDRED SIXTEEN OF THE CIVIL  PRACTICE
LAW  AND  RULES  IN THE COUNTY IN WHICH SUCH CHILD WAS FOUND. THE NOTICE
SHALL STATE:
  (A) THE DATE, TIME AND PURPOSE OF THE PROCEEDING;
  (B) THE DATE, TIME AND PLACE THAT THE ABANDONED INFANT WAS FOUND;
  (C) A DESCRIPTION OF THE INFANT  INCLUDING  ITS  APPROXIMATE  DATE  OF
BIRTH;
  (D) THAT UPON FAILURE TO APPEAR, ALL PARENTAL RIGHTS OF THE PARENTS OF
SUCH ABANDONED INFANT SHALL BE TERMINATED;
  (E) THAT A PARENT'S FAILURE TO APPEAR SHALL CONSTITUTE A DENIAL OF HIS
OR HER INTEREST IN THE CHILD, WHICH DENIAL SHALL RESULT, WITHOUT FURTHER
NOTICE,  IN  THE COMMITMENT OF THE CUSTODY AND GUARDIANSHIP OF THE CHILD
TO THE  LOCAL  COMMISSIONER  OF  SOCIAL  SERVICES  AND  IN  THE  CHILD'S
ADOPTION; AND
  (F)  THE  NAME, ADDRESS, AND TELEPHONE NUMBER OF THE PERSON DESIGNATED
BY THE LOCAL COMMISSIONER OF SOCIAL SERVICES TO CONTACT FOR  INFORMATION
REGARDING SUCH CHILD.
  S 8. The family court act is amended by adding a new section 1061-a to
read as follows:
  S  1061-A. CUSTODY CLAIM BY PARENT OF AN ABANDONED INFANT.  (A) AT ANY
TIME PRIOR TO THE CHILD BEING  FREED  FOR  ADOPTION  EITHER  PARENT  MAY
INSTITUTE  AN ACTION TO ASSERT A CLAIM FOR CUSTODY OF THE CHILD DECLARED
AN ABANDONED INFANT PURSUANT TO SECTION ONE THOUSAND FIFTY-ONE-A OF THIS
ARTICLE. SUCH PROCEEDING SHALL BE BROUGHT WITHIN THE COUNTY  WHERE  SUCH
INFANT  IS  FOUND. SUCH PROCEEDING SHALL ORIGINATE BY PETITION AND SHALL
NAME THE LOCAL COMMISSIONER OF SOCIAL SERVICES, AND BOTH THE PARENTS, IF
KNOWN. IN THE EVENT THE WHEREABOUTS OF  EITHER  PARENT  IS  UNKNOWN  THE
PETITION  SHALL  SO  STATE  AND  THE  COURT MAY PROCEED IN SAID PARENT'S
ABSENCE. A FILING OF A PETITION UNDER THIS SECTION SHALL TOLL  THE  TIME
FOR FREEING THE CHILD FOR ADOPTION AS PROVIDED FOR IN SUBDIVISION (A) OF
SECTION  ONE  THOUSAND  FIFTY-ONE-A  OF  THIS ARTICLE.   NOTICE SHALL BE
SERVED UPON THE ATTORNEY FOR THE CHILD APPOINTED PURSUANT TO SUBDIVISION
(D) OF SECTION ONE THOUSAND THIRTY-ONE-A OF THIS ARTICLE. IN DETERMINING
CUSTODY OF THE INFANT THE COURT SHALL CONSIDER THE BEST INTEREST OF  THE
CHILD.  PENDING  A DETERMINATION IN THIS MATTER, THE INFANT SHALL REMAIN
IN THE CARE AND CUSTODY OF THE LOCAL  COMMISSIONER  OF  SOCIAL  SERVICES
UNLESS THE COURT DIRECTS OTHERWISE.
  (B)  IN THE EVENT THAT PETITIONER WHO ALLEGES TO BE A PUTATIVE FATHER,
RECITES IN A PETITION, FILED IN THE COUNTY  WHEREIN  HE  RESIDES,  FACTS
THAT  ALLEGE HE IS THE FATHER OF AN INFANT WHOSE WHEREABOUTS ARE UNKNOWN
DUE TO THE CONCEALMENT AND PROBABLE ABANDONMENT OF THE RESPONDENT  MOTH-
ER, THE PETITION MAY BE SERVED UPON THE MOTHER SEEKING AS ITS SOLE REME-
DY,  THE  LOCATION WHERE THE INFANT WAS ABANDONED. RESPONDENT MOTHER MAY
THEN AVOID APPEARING IN COURT BY FILING A  SWORN  STATEMENT  WITHIN  TEN
DAYS  DISCLOSING  THE  LOCATION  THE  CHILD  WAS  ABANDONED. A COURT MAY
COMPEL, BY THE POWERS OF CONTEMPT, THE DISCLOSURE OF THE INFANT'S WHERE-
ABOUTS.  UPON DISCLOSURE OF THE INFANT'S LOCATION THE PETITION TO ASSERT

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THE CLAIM OF CUSTODY SHALL BE TRANSFERRED  TO  THE  COUNTY  WHEREIN  THE
INFANT IS RESIDING FOR FURTHER PROCEEDINGS.
  (C)  THE  RECORDS  AND  DISCOVERY  PROCEDURES SET FORTH IN SECTION ONE
THOUSAND THIRTY-EIGHT OF THIS ARTICLE SHALL BE APPLICABLE TO A  PROCEED-
ING UNDER THIS SECTION.
  (D)  FAILURE  OF  A  PARENT  TO  ASSERT A CLAIM FOR CUSTODY UNDER THIS
SECTION WITHIN THE SPECIFIED TIME  PERIOD  SHALL  IRREVOCABLY  FREE  THE
CHILD  FOR  ADOPTION  AND ANY ALLEGED PARENT WILL LOSE ALL RIGHTS AT THE
END OF THE NINETY DAY PERIOD WITHOUT FURTHER NOTICE.
  S 9. Paragraph (e) of subdivision 2 of section  111  of  the  domestic
relations law, as amended by chapter 375 of the laws of 1997, is amended
and a new paragraph (f) is added to read as follows:
  (e)  who has executed an instrument, which shall be irrevocable, deny-
ing the paternity of the child, such  instrument  having  been  executed
after  conception  and  acknowledged or proved in the manner required to
permit the recording of a deed[.]; OR
  (F) WHERE SUCH CHILD IS DETERMINED TO BE AN ABANDONED INFANT  PURSUANT
TO SECTION ONE THOUSAND THIRTY-ONE-A OF THE FAMILY COURT ACT.
  S  10.  This  act shall take effect on the sixtieth day after it shall
have become a law.