S T A T E O F N E W Y O R K
________________________________________________________________________
6858
I N S E N A T E
March 1, 2016
___________
Introduced by Sen. AVELLA -- (at request of the Office of Court Adminis-
tration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Children and Families
AN ACT to amend the domestic relations law, the family court act, the
executive law and the social services law, in relation to the substi-
tution of the term intellectual disability for the term mental retar-
dation in family court proceedings
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (d) of subdivision 2 of section 111 of the domes-
tic relations law, as amended by chapter 911 of the laws of 1983, is
amended to read as follows:
(d) who, by reason of mental illness or [mental retardation] INTELLEC-
TUAL DISABILITY, as defined in subdivision six of section three hundred
eighty-four-b of the social services law, is presently and for the fore-
seeable future unable to provide proper care for the child. The determi-
nation as to whether a parent is mentally ill or [mentally retarded]
INTELLECTUALLY DISABLED shall be made in accordance with the criteria
and procedures set forth in subdivision six of section three hundred
eighty-four-b of the social services law; or
S 2. Paragraph (iv) of subdivision (a) of section 115 of the family
court act, as amended by chapter 185 of the laws of 2006, is amended to
read as follows:
(iv) proceedings to permanently terminate parental rights to guardian-
ship and custody of a child: (A) by reason of permanent neglect, as set
forth in part one of article six of this act and paragraph (d) of subdi-
vision four of section three hundred eighty-four-b of the social
services law, (B) by reason of mental illness, [mental retardation]
INTELLECTUAL DISABILITY and severe or repeated child abuse, as set forth
in paragraphs (c) and (e) of subdivision four of section three hundred
eighty-four-b of the social services law, and (C) by reason of the death
of one or both parents, where no guardian of the person of the child has
been lawfully appointed, or by reason of abandonment of the child for a
period of six months immediately prior to the filing of the petition,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14206-01-6
S. 6858 2
where a child is under the jurisdiction of the family court as a result
of a placement in foster care by the family court pursuant to article
ten or ten-A of this act or section three hundred fifty-eight-a of the
social services law, unless the court declines jurisdiction pursuant to
section three hundred eighty-four-b of the social services law;
S 3. Section 231 of the family court act, as added by chapter 853 of
the laws of 1976, is amended to read as follows:
S 231. Jurisdiction over [mentally retarded] INTELLECTUALLY DISABLED
children. If it shall appear to the court that any child within its
jurisdiction is [mentally retarded] INTELLECTUALLY DISABLED, the court
may cause such child to be examined as provided in the mental hygiene
law and if found to be [mentally retarded] INTELLECTUALLY DISABLED as
therein defined, may commit such child in accordance with the provisions
of such law.
S 4. Subdivision 13 of section 301.2 of the family court act, as added
by chapter 920 of the laws of 1982, is amended to read as follows:
13. "Incapacitated person" means a respondent who, as a result of
mental illness, [mental retardation] OR INTELLECTUAL or developmental
disability as defined in subdivisions twenty[, twenty-one] and twenty-
two of section 1.03 of the mental hygiene law, lacks capacity to under-
stand the proceedings against him or HER OR to assist in his OR HER own
defense.
S 5. Subdivision 1 and paragraph (a) of subdivision 5 of section 322.2
of the family court act, as amended by chapter 41 of the laws of 2010,
are amended to read as follows:
1. Upon the receipt of examination reports ordered under section 322.1
OF THIS ACT, the court shall conduct a hearing to determine whether the
respondent is an incapacitated person. The respondent, the counsel for
the respondent, the presentment agency and the commissioner of mental
health or the commissioner of [mental retardation and] developmental
disabilities, as appropriate, shall be notified of such hearing at least
five days prior to the date thereof and afforded an opportunity to be
heard.
(a) If the court finds that there is probable cause to believe that
the respondent committed a felony, it shall order the respondent commit-
ted to the custody of the commissioner of mental health or the commis-
sioner of [mental retardation and] developmental disabilities for an
initial period not to exceed one year from the date of such order. Such
period may be extended annually upon further application to the court by
the commissioner having custody or his or her designee. Such application
must be made not more than sixty days prior to the expiration of such
period on forms that have been prescribed by the chief administrator of
the courts. At that time, the commissioner must give written notice of
the application to the respondent, the counsel representing the respond-
ent and the mental hygiene legal service if the respondent is at a resi-
dential facility. Upon receipt of such application, the court must
conduct a hearing to determine the issue of capacity. If, at the conclu-
sion of a hearing conducted pursuant to this subdivision, the court
finds that the respondent is no longer incapacitated, he or she shall be
returned to the family court for further proceedings pursuant to this
article. If the court is satisfied that the respondent continues to be
incapacitated, the court shall authorize continued custody of the
respondent by the commissioner for a period not to exceed one year. Such
extensions shall not continue beyond a reasonable period of time neces-
sary to determine whether the respondent will attain the capacity to
S. 6858 3
proceed to a fact finding hearing in the foreseeable future but in no
event shall continue beyond the respondent's eighteenth birthday.
S 6. Subdivisions 1, 2 and 3 of section 353.4 of the family court act,
subdivision 1 and paragraph (c) of subdivision 2 as amended by chapter
465 of the laws of 1992 and subdivisions 2 and 3 as added by chapter 920
of the laws of 1982, are amended to read as follows:
1. If at the conclusion of the dispositional hearing and in accordance
with section 352.2 OF THIS ACT the court finds that the respondent has a
mental illness, [mental retardation] OR INTELLECTUAL or developmental
disability, as defined in section 1.03 of the mental hygiene law, which
is likely to result in serious harm to himself or HERSELF OR others, the
court may issue an order placing such respondent with the [division for
youth] OFFICE OF CHILDREN AND FAMILY SERVICES or, with the consent of
the local commissioner, with a local commissioner of social services.
Any such order shall direct the temporary transfer for admission of the
respondent to the custody of either the commissioner of mental health or
the commissioner of [mental retardation and] developmental disabilities
who shall arrange the admission of the respondent to the appropriate
facility of the department of mental hygiene. The director of a hospital
operated by the office of mental health may, subject to the provisions
of section 9.51 of the mental hygiene law, transfer a person admitted to
the hospital pursuant to this subdivision to a residential treatment
facility for children and youth, as that term is defined in section 1.03
of the mental hygiene law, if care and treatment in such a facility
would more appropriately meet the needs of the respondent. Persons
temporarily transferred to such custody under this provision may be
retained for care and treatment for a period of up to one year and when-
ever appropriate shall be transferred back to the [division for youth]
OFFICE OF CHILDREN AND FAMILY SERVICES pursuant to the provisions of
section five hundred nine of the executive law or transferred back to
the local commissioner of social services. Within thirty days of such
transfer back, application shall be made by the [division for youth]
OFFICE OF CHILDREN AND FAMILY SERVICES or the local commissioner of
social services to the placing court to conduct a further dispositional
hearing at which the court may make any order authorized under section
352.2 OF THIS ACT, except that the period of any further order of dispo-
sition shall take into account the period of placement hereunder. Like-
lihood to result in serious harm shall mean (a) substantial risk of
physical harm to himself OR HERSELF as manifested by threats or attempts
at suicide or serious bodily harm or other conduct demonstrating he OR
SHE is dangerous to himself or HERSELF OR (b) a substantial risk of
physical harm to other persons as manifested by homicidal or other
violent behavior by which others are placed in reasonable fear of seri-
ous bodily harm.
2. (a) Where the order of disposition is for a restrictive placement
under section 353.5 OF THIS ACT if the court at the dispositional hear-
ing finds that the respondent has a mental illness, [mental retardation]
OR INTELLECTUAL or developmental disability, as defined in section 1.03
of the mental hygiene law, which is likely to result in serious harm to
himself OR HERSELF or others, the court may, as part of the order of
disposition, direct the temporary transfer, for a period of up to one
year, of the respondent to the custody of the commissioner of mental
health or of [mental retardation and] developmental disabilities who
shall arrange for the admission of the respondent to an appropriate
facility under his OR HER jurisdiction within thirty days of such order.
S. 6858 4
The director of the facility so designated by the commissioner shall
accept such respondent for admission.
(b) Persons transferred to the office of mental health or [of mental
retardation and] THE OFFICE FOR PEOPLE WITH developmental disabilities,
pursuant to this subdivision, shall be retained by such office for care
and treatment for the period designated by the court. At any time prior
to the expiration of such period, if the director of the facility deter-
mines that the child is no longer mentally ill or no longer in need of
active treatment, the responsible office shall make application to the
family court for an order transferring the child back to the [division
for youth] OFFICE OF CHILDREN AND FAMILY SERVICES. Not more than thirty
days before the expiration of such period, there shall be a hearing, at
which time the court may:
(i) extend the temporary transfer of the respondent for an additional
period of up to one year to the custody of the commissioner of mental
health or the commissioner of [mental retardation and] developmental
disabilities pursuant to this subdivision; or
(ii) continue the restrictive placement of the respondent in the
custody of the [division for youth] OFFICE OF CHILDREN AND FAMILY
SERVICES.
(c) During such temporary transfer, the respondent shall continue to
be under restrictive placement with the [division for youth] OFFICE OF
CHILDREN AND FAMILY SERVICES. Whenever the respondent is transferred
back to the [division] OFFICE OF CHILDREN AND FAMILY SERVICES the condi-
tions of the placement as set forth in section 353.5 shall apply. Time
spent by the respondent in the custody of the commissioner of mental
health or the commissioner of [mental retardation and] developmental
disabilities shall be credited and applied towards the period of place-
ment.
3. No dispositional hearing at which proof of a mental disability as
defined in section 1.03 of the mental hygiene law is to be offered shall
be completed until the commissioner of mental health or commissioner of
[mental retardation and] developmental disabilities, as appropriate,
have been notified and afforded an opportunity to be heard at such
dispositional hearing.
S 7. Subdivision 4 of section 380.1 of the family court act, as added
by chapter 7 of the laws of 2007, is amended to read as follows:
4. Notwithstanding any other provision of law, where a finding of
juvenile delinquency has been entered, upon request, the records
pertaining to such case shall be made available to the commissioner of
mental health or the commissioner of [mental retardation and] develop-
mental disabilities, as appropriate; the case review panel; and the
attorney general pursuant to section 10.05 of the mental hygiene law.
S 8. Subdivision 9 of section 508 of the executive law, as amended by
chapter 7 of the laws of 2007, is amended to read as follows:
9. Notwithstanding any provision of law, including section five
hundred one-c of this article, the office of children and family
services shall make records pertaining to a person convicted of a sex
offense as defined in subdivision (p) of section 10.03 of the mental
hygiene law available upon request to the commissioner of mental health
or the commissioner of [mental retardation and] developmental disabili-
ties, as appropriate; a case review panel; and the attorney general; in
accordance with the provisions of article ten of the mental hygiene law.
S 9. Paragraph (b) of subdivision 1 and subdivision 4 of section 509
of the executive law, paragraph (b) of subdivision 1 as amended by chap-
S. 6858 5
ter 511 of the laws of 1978 and subdivision 4 as amended by chapter 316
of the laws of 1983, are amended to read as follows:
(b) The office [of mental retardation and] FOR PEOPLE WITH develop-
mental disabilities may receive, treat and otherwise care for such a
child pursuant to article nine or fifteen of the mental hygiene law if
suitable for admission thereunder.
4. Whenever the commissioner of mental health or the director of a
residential treatment facility for children and youth, or the commis-
sioner of [mental retardation and] developmental disabilities finds that
care and treatment of a child transferred pursuant to this section or
section 353.4 of the family court act is no longer suitable under the
mental hygiene law, he OR SHE shall forthwith so certify and discharge
the child to the custody of the child himself OR HERSELF, his OR HER
parents, his OR HER legal guardian, [his] THE local department of social
services or the [division for youth] OFFICE OF CHILDREN AND FAMILY
SERVICES, as appropriate, except that so long as there is a valid order
of the family court placing the child with the [division for youth]
OFFICE OF CHILDREN AND FAMILY SERVICES, or a valid order of a criminal
court sentencing a child to the [division for youth] OFFICE OF CHILDREN
AND FAMILY SERVICES, the child shall be returned to the care and custody
of the [division] OFFICE OF CHILDREN AND FAMILY SERVICES. The duration
of the placement or sentence with the [division] SUCH OFFICE of a child
transferred pursuant to this section shall not be extended or increased
by reason of any such transfer.
S 10. Paragraph (c) of subdivision 4 and paragraph (b) of subdivision
6 of section 384-b of the social services law, paragraph (c) of subdivi-
sion 4 as amended by chapter 284 of the laws of 1981 and paragraph (b)
of subdivision 6 as added by chapter 666 of the laws of 1976, are
amended to read as follows:
(c) The parent or parents, whose consent to the adoption of the child
would otherwise be required in accordance with section one hundred elev-
en of the domestic relations law, are presently and for the foreseeable
future unable, by reason of mental illness or [mental retardation]
INTELLECTUAL DISABILITY, to provide proper and adequate care for a child
who has been in the care of an authorized agency for the period of one
year immediately prior to the date on which the petition is filed in the
court; or
(b) For the purposes of this section, ["mental retardation"] "INTEL-
LECTUAL DISABILITY" means subaverage intellectual functioning which
originates during the developmental period and is associated with
impairment in adaptive behavior to such an extent that if such child
were placed in or returned to the custody of the parent, the child would
be in danger of becoming a neglected child as defined in the family
court act; PROVIDED, HOWEVER, THAT CASE LAW REGARDING USE OF THE PHRASE
"MENTAL RETARDATION" UNDER THIS SECTION SHALL BE APPLICABLE TO THE TERM
"INTELLECTUAL DISABILITY".
S 11. Subparagraph (n) of paragraph (A) of subdivision 4 of section
422 of the social services law, as amended by chapter 12 of the laws of
1996, is amended to read as follows:
(n) chief executive officers of authorized agencies, directors of day
care centers and directors of facilities operated or supervised by the
department of education, the [division for youth] OFFICE OF CHILDREN AND
FAMILY SERVICES, the office of mental health or the office [of mental
retardation and] FOR PEOPLE WITH developmental disabilities, in
connection with a disciplinary investigation, action, or administrative
or judicial proceeding instituted by any of such officers or directors
S. 6858 6
against an employee of any such agency, center or facility who is the
subject of an indicated report when the incident of abuse or maltreat-
ment contained in the report occurred in the agency, center, facility or
program, and the purpose of such proceeding is to determine whether the
employee should be retained or discharged; provided, however, a person
given access to information pursuant to this subparagraph [(n)] shall,
notwithstanding any inconsistent provision of law, be authorized to
redisclose such information only if the purpose of such redisclosure is
to initiate or present evidence in a disciplinary, administrative or
judicial proceeding concerning the continued employment or the terms of
employment of an employee of such agency, center or facility who has
been named as a subject of an indicated report and, in addition, a
person or agency given access to information pursuant to this subpara-
graph [(n)] shall also be given information not otherwise provided
concerning the subject of an indicated report where the commission of an
act or acts by such subject has been determined in proceedings pursuant
to article ten of the family court act to constitute abuse or neglect;
S 12. The closing paragraph of section 424 of the social services law,
as amended by chapter 634 of the laws of 1988, is amended to read as
follows:
The provisions of this section shall not apply to a child protective
service with respect to reports involving children [in facilities or
programs subject to the provisions of subdivision eleven of section four
hundred twenty-two of this title or reports involving children] in homes
operated or supervised by the [division for youth] OFFICE OF CHILDREN
AND FAMILY SERVICES, the office of mental health, or the office of
[mental retardation and] PEOPLE WITH developmental disabilities subject
to the provisions of section four hundred twenty-four-b of this title.
S 13. This act shall take effect immediately.
