Senate Bill S1447A

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

                                 1447--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            January 12, 2015
                               ___________

Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Children and  Families  --
  recommitted  to  the  Committee on Children and Families in accordance
  with Senate Rule 6, sec. 8  --  committee  discharged,  bill  amended,
  ordered reprinted as amended and recommitted to said committee

AN  ACT to amend the social services law, the criminal procedure law and
  the civil practice  law  and  rules,  in  relation  to  assisting  and
  protecting victims of domestic violence, child abuse and child neglect

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

  Section 1.  Legislative  intent.  Presently,  a  person  convicted  of
harassment,  which  is  only  a violation under the penal law, enjoys an
automatic seal on his or her criminal record. Harassment often  includes
matters  of  domestic  violence.  In  subsequent proceedings between the
victim of the violence and the convicted aggressor, the  record  of  the
criminal court, the police arrest and investigation, and the aggressor's
conviction,  admissions  or  orders of protection in the criminal matter
are not available to the victim to  prove  that  the  domestic  violence
occurred;  making  it  difficult  for  the  victim to protect himself or
herself against further aggression or obtain justice in family court  or
other  civil  proceedings.  This  act  will allow the victim or victim's
representative to obtain a judicial subpoena releasing  such  record  to
the family or supreme court.
  Likewise,  where  an investigation by child protective services "indi-
cates" the abuse or neglect of a child, the state law allows the subject
of the report the ability to amend the report to "unfounded" without any
notice or opportunity to object to the  amendment  being  given  to  the
victim  of  the  abuse  or  neglect.  As  a  result, if amended, even by
default, the victim or co-parent cannot access the record of the  inves-
tigation  in  subsequent  family or supreme court proceedings.  Further,
the person previously "indicated" can use the amended report as a weapon

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00955-02-6
              

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against the opposing party to show that their allegation, or  belief  in
the  allegation,  was  frivolous.  Even where the "indicated" finding is
properly amended to "unfounded," and the accused was frivolously victim-
ized  by  the  allegations  of  their  opposing party, the reporting law
shields the  identity  of  the  false  reporter.  This  act,  therefore,
protects  the victims of child abuse, child neglect and wrongful accusa-
tions of child abuse and neglect by opening the records of  the  central
registry by judicial subpoena.
  Finally,  the  state  legislature  enacted  a  hearsay  exception to a
child's statements of abuse or neglect in section  1065  of  the  family
court  act.  Justifiably, if not technically correct, the state's appel-
late courts have expanded such section's exception to  custody,  divorce
and  child support proceedings. However, this exception is not currently
available in every matter where domestic violence, child abuse or  child
neglect  may be at issue (i.e. surrogate court matters, tort actions, or
family offenses). This act allows the judges, parens patria, to  provide
further  protection  to  children  in  consideration of their particular
emotional immaturity and fragility, while preventing convictions on only
the allegations of a child.
  S 2. Subparagraphs (iv) and (v) of paragraph (a) of subdivision  5  of
section  422 of the social services law, subparagraph (iv) as amended by
chapter 555 of the laws of 2000 and subparagraph (v) as amended by chap-
ter 256 of the laws of 2014, are amended to read as follows:
  (iv) to the subject of the report; [and]
  (v) to a district attorney, an assistant district attorney, an  inves-
tigator  employed  in  the  office of a district attorney, or to a sworn
officer of the division of state police, of  a  city,  county,  town  or
village  police  department  or  of  a county sheriff's office when such
official verifies that the report is  necessary  to  conduct  an  active
investigation  or  prosecution  of  a  violation  of subdivision four of
section 240.50 of the penal law; AND
  (VI) ON JUDICIAL SUBPOENA OF THE FAMILY OR  SUPREME  COURT  WHERE  THE
PROTECTION OF A CHILD OR A FALSE ALLEGATION OF CHILD ABUSE OR NEGLECT IS
AT ISSUE AND THE SUBJECT OF THE REPORT IS A PARTY TO AN ACTION THEREIN.
  S  3.  Subdivision  7  of  section  422 of the social services law, as
amended by chapter 434 of the laws  of  1989,  is  amended  to  read  as
follows:
  7.  At  any  time, a subject of a report [and], other persons named in
the report OR THEIR GUARDIANS OR CUSTODIANS, AND THE FAMILY  OR  SUPREME
COURT  BY JUDICIAL SUBPOENA AND WHERE THE PROTECTION OF A CHILD OR FALSE
ALLEGATIONS OF CHILD ABUSE OR NEGLECT IS AT ISSUE AND THE SUBJECT OF THE
REPORT IS A PARTY TO AN ACTION THEREIN, may  receive,  upon  request,  a
copy  of  all  information  contained in the central register; provided,
however, that the commissioner is authorized, EXCEPT WHEN THE REQUEST IS
MADE BY JUDICIAL SUBPOENA AND THE REPORTER IS A PARTY TO THE ACTION,  to
prohibit the release of data that would identify the person who made the
report  or  who  cooperated in a subsequent investigation or the agency,
institution, organization, program or other entity where such person  is
employed  or with which he is associated, which he reasonably finds will
be detrimental to the safety or interests of such person.
  S 4. Subparagraph (i) of paragraph (a) and subparagraphs (i) and  (ii)
of  paragraph (b) of subdivision 8 of section 422 of the social services
law, as amended by chapter 12 of the laws of 1996, are amended and a new
paragraph (f) is added to read as follows:
  (i) At any time subsequent to the completion of the investigation  but
in  no  event  later than ninety days after the subject of the report is

S. 1447--A                          3

notified that the report  is  indicated  the  subject  may  request  the
commissioner  to amend the record of the report.  THE COMMISSIONER SHALL
MAIL TO THE  VICTIM'S  PARENT,  GUARDIAN  OR  CUSTODIAN  NOTICE  OF  THE
SUBJECT'S  REQUEST  TO  AMEND  AND THE BASIS UPON WHICH THE AMENDMENT IS
SOUGHT. SUCH PARENT, GUARDIAN OR CUSTODIAN MAY OBJECT TO  THE  AMENDMENT
WITHIN  THIRTY  DAYS  OF  NOTICE  BY MAILING HIS OR HER OBJECTION TO THE
COMMISSIONER. If the commissioner does not amend the report  in  accord-
ance  with such request within ninety days of receiving the request, the
subject shall have the right to a fair hearing, held in accordance  with
paragraph  (b)  of  this subdivision, to determine whether the record of
the report in the central register should be amended on the grounds that
it is inaccurate or it is being maintained in a manner inconsistent with
this title.
  (i) If the department, within ninety days of receiving a request  from
the  subject  that the record of a report be amended, does not amend the
record in accordance with such request, the department shall schedule  a
fair  hearing  and shall provide notice of the scheduled hearing date to
the subject, the statewide central register [and, as  appropriate,  to],
the  child protective service or the state agency which investigated the
report, THE ADULT VICTIM, OR THE  MINOR  VICTIM'S  PARENT,  GUARDIAN  OR
CUSTODIAN.  SUCH  PARENT, GUARDIAN OR CUSTODIAN MAY APPEAR IN PERSON, OR
BY AN ATTORNEY,  TO  OBJECT  TO  THE  REQUESTED  AMENDMENT  AND  PRESENT
WITNESSES,  SWORN  STATEMENTS AND OTHER EVIDENCE FOR PRESENTATION TO THE
HEARING OFFICER.
  (ii) The burden of proof in such a  hearing  shall  be  on  the  child
protective  service  or  the state agency which investigated the report,
THE ADULT VICTIM, OR THE MINOR VICTIM'S PARENT, GUARDIAN  OR  CUSTODIAN,
as  the  case may be. In such a hearing, the fact that there is a family
court finding of abuse or neglect against the subject in  regard  to  an
allegation contained in the report shall create an irrebuttable presump-
tion that said allegation is substantiated by some credible evidence.
  (F)  AN ADULT VICTIM, OR THE MINOR VICTIM'S PARENT, GUARDIAN OR CUSTO-
DIAN MAY SEEK TO VACATE AN AMENDMENT MADE PURSUANT TO PARAGRAPH  (E)  OF
THIS SUBDIVISION WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS PARAGRAPH
OR  KNOWLEDGE  THAT SUCH AN AMENDMENT HAS BEEN MADE WITHOUT SUCH PARENT,
GUARDIAN OR CUSTODIAN RECEIVING  NOTICE  OF  HEARING  OR  THE  SUBJECT'S
REQUEST TO AMEND. THE ADULT VICTIM, OR THE MINOR VICTIM'S PARENT, GUARD-
IAN  OR  CUSTODIAN  SEEKING TO VACATE AN UNNOTICED AMENDMENT SHALL STATE
WITH PARTICULARITY THE DATE THAT THEY BECAME AWARE THAT AN AMENDMENT WAS
MADE AND THE EVIDENCE HE OR  SHE  WILL  PRESENT  THAT  DEMONSTRATES  THE
COMMISSIONER'S  ERROR  IN  AMENDMENT.  THE COMMISSIONER SHALL SCHEDULE A
REHEARING DATE, AND SHALL IMMEDIATELY INFORM THE SUBJECT OF THE FORMERLY
INDICATED REPORT, THE ADULT VICTIM OR MINOR VICTIM'S PARENT, GUARDIAN OR
CUSTODIAN, AND THE CHILD PROTECTIVE SERVICE OR  THE  STATE  AGENCY  THAT
INVESTIGATED THE REPORT.
  S  5. Paragraph (d) of subdivision 1 of section 160.55 of the criminal
procedure law, as amended by chapter 449 of the laws of 2015, is amended
to read as follows:
  (d) the records referred to in paragraph (c) of this subdivision shall
be made available to the person accused or to such  person's  designated
agent, and shall be made available to (i) a prosecutor in any proceeding
in  which  the accused has moved for an order pursuant to section 170.56
or 210.46 of this chapter, or (ii) a  law  enforcement  agency  upon  ex
parte motion in any superior court, or in any district court, city court
or  the  criminal court of the city of New York provided that such court
sealed the record, if such agency demonstrates to  the  satisfaction  of

S. 1447--A                          4

the  court  that justice requires that such records be made available to
it, or (iii) any state or local officer or  agency  with  responsibility
for  the issuance of licenses to possess guns, when the accused has made
application for such a license, or (iv) the New York state department of
corrections  and  community supervision when the accused is under parole
supervision as a result of conditional release or parole release granted
by the New York state board of  parole  and  the  arrest  which  is  the
subject of the inquiry is one which occurred while the accused was under
such supervision, or (v) the probation department responsible for super-
vision  of  the  accused  when  the  arrest  which is the subject of the
inquiry is one which occurred while the accused was  under  such  super-
vision, or (vi) a police agency, probation department, sheriff's office,
district attorney's office, department of correction of any municipality
and  parole  department,  for  law  enforcement purposes, upon arrest in
instances in which the individual stands convicted of harassment in  the
second  degree, as defined in section 240.26 of the penal law, committed
against a member of the same family or household as  the  defendant,  as
defined in subdivision one of section 530.11 of this chapter, and deter-
mined  pursuant  to subdivision eight-a of section 170.10 of this title,
OR (VII) UPON RECEIPT OF A JUDICIAL SUBPOENA, THE FAMILY OR THE  SUPREME
COURT IN A MATTER WHERE DOMESTIC VIOLENCE, THE PROTECTION OF A CHILD, OR
A  FALSE  ALLEGATION  OF DOMESTIC VIOLENCE, ABUSE OR NEGLECT IS AT ISSUE
AND THE DEFENDANT IS A PARTY TO THE ACTION THEREIN; and
  S 6. The civil practice law and rules  is  amended  by  adding  a  new
section 4549 to read as follows:
  S  4549.  EVIDENCE  OF CHILD'S STATEMENTS REGARDING DOMESTIC VIOLENCE,
ABUSE OR NEGLECT. 1. PREVIOUS STATEMENTS MADE BY A CHILD RELATING TO ANY
ALLEGATIONS OF DOMESTIC VIOLENCE OR CHILD  ABUSE  OR  NEGLECT  SHALL  BE
GENERALLY  ADMISSIBLE IN EVIDENCE, BUT IF UNCORROBORATED, SUCH STATEMENT
SHALL NOT BE SUFFICIENT TO MAKE A FACT-FINDING OF ABUSE OR NEGLECT.  ANY
OTHER  EVIDENCE TENDING TO SUPPORT THE RELIABILITY OF THE CHILD'S PREVI-
OUS STATEMENTS SHALL BE  GENERALLY  ADMISSIBLE  AND  SUFFICIENT  CORROB-
ORATION.  THE  TESTIMONY  OF  THE CHILD SHALL NOT BE NECESSARY TO MAKE A
FACT-FINDING OF DOMESTIC VIOLENCE, ABUSE OR NEGLECT.
  2. THE PRESIDING JUDGE MAY, HOWEVER, ISSUE AN  ORDER  PROHIBITING  THE
DIVULGING  OF  THE  CONTENTS  OF SUCH STATEMENTS TO ANY ENTITY OR PERSON
OTHER THAN THE COURT, LITIGANTS, THEIR COUNSEL AND  ANY  WITNESS  DEEMED
NECESSARY TO THE PROCEEDINGS.
  S 7. This act shall take effect immediately.