S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2369
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 18, 2017
                                ___________
 
 Introduced by M. of A. LENTOL -- read once and referred to the Committee
   on Children and Families
 
 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
 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-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03419-01-7

 A. 2369                             2
 
 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.
   §  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.
   § 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.
   §  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
 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

 A. 2369                             3
 
 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.
   § 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
 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

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 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
   §  6.  The  civil  practice  law  and rules is amended by adding a new
 section 4549 to read as follows:
   § 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.
   § 7. This act shall take effect immediately.