BILL NUMBER: S7886A

SPONSOR: AVELLA
 
TITLE OF BILL:  An act to amend the family court act, in relation to
the duration of orders of protection in child abuse and neglect
proceedings and in permanency planning hearings in family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

A serious problem confronting victims of family violence, both adults
and children, in child protective cases is the heavy burden created by
the extremely short duration of orders of protection against family
members, a period far shorter than applicable periods for orders in
family offense, custody, visitation, child support and paternity
proceedings. Subdivision one of 1056 of the Family Court Act authorizes
an order of protection against respondent parents, persons legally
responsible for a child's care and such persons' spouses in child
neglect and abuse proceedings to last only as long as a child protective
dispositional order. See Matter of Nevaeh T., 151 A.D.3d 1766 (4th
Dept., 2017); Matter of Alexis A. (Richard V.), 143 A.D.3d 700 (2nd
Dept., 2016); Matter of Kole HH, 84 A.D.3d 1518 (3rd Dept., 2011);
              

Matter of Patricia B., 61 A.D.3d 861 (2d Dept., 2009), lv. app. denied,
13 N.Y.3d 713 (2009); Matter of Andrew Y., 44 A.D.3d 1063 (2d Dept.,
2007); Matter of Candace S., 38 A.D.3d 786 (2d Dept., 2007), lye. app.
denied, 9 N.Y.3d 805 (2007); Matter of Amanda WW., 43 A.D.3d 1256 (3d
Dept., 2007); Matter of Collin H., 28 A.D.3d 806 (3d Dept., 2006).
Dispositions in child protective cases include, inter alia, release of a
child under supervision for one year, subject to a one-year extension,
or placement of a child until the next permanency planning hearing.
Permanency planning hearings must be convened for children in foster
care, as well as children directly placed with relatives and other indi-
viduals, once they have been in care for eight months and then every six
months thereafter. See Family Court Act §§ 1052, 1054, 1055, 1057, 1089.
Thus, orders of protection even in the most extreme cases of severe
child abuse may only last for six months or one year, subject to equally
limited extensions, although identical allegations in other categories
of cases would justify far longer orders.

We propose the instant measure to remedy this problem. This measure
would apply the rule now applicable to orders of protection in family
offense cases to orders of protection issued in child protective
proceedings against individuals who are related by blood or marriage to
the child or who were members of the child's household at the time of
the disposition; L e., that such orders might last up to two years or,
or, upon findings of special circumstances, up to five years.  The defi-
nition of special circumstances would be limited to the most serious
cases as follows:

physical injury or serious physical injury caused by the respondent to
the protected person or persons or any minor child, the use of a danger-
ous instrument by the respondent against the protected person or persons
or any minor child, a history of violations of orders of protection by
the respondent, prior convictions for crimes against the protected
person or persons or a minor child by the respondent or the commission
by the respondent of acts constituting a felony sex offense as defined
in subdivision (e) of section one thousand twelve of this article and
like incidents, behaviors and occurrences which to the court constitute
an immediate and ongoing danger to the protected person or persons or a
minor child or any family or household member.

Such orders could be extended upon judicial review, with notice to all
affected parties, in the context of a permanency hearing under Article
10-A of the Family Court Act or other postdispositional proceeding under
Article 10. These provisions for time-limited orders would, therefore,
be consistent with the requirement for time-limited orders with authori-
zations for periodic judicial review as established by the Court of
Appeals in Matter of Sheena D., 8 N.Y.3d 136 (2007).

The time limits in Family Court Act § 1056 stand in sharp contrast to
the duration limits applicable to family offense orders of protection,
which were extended by the Legislature in 2003 to up to two years or, if
aggravating circumstances or a violation of an order of protection are
found, up to five years. See Family Court Act § 842 (L. 2003, c. 579).
Orders of protection in custody, visitation and other civil proceedings
in Supreme and Family Court may last for specified periods until the
youngest child reaches majority. Indeed, the Family Court in Child
Protective Services ex rel Ashley B. v.  William B., 7 Misc.3d 1017(A),
2005 WL 1021565, NY Slip Op. 50637 (Fain. Ct., Suff. Co., 2005)
(Unrep.), in issuing a longer order in admitted contravention of the
statutory language, stated:

The facts of this case involve a grandfather who sexually abused his
granddaughter. It is more likely than not that if not prevented from
being a part of this child's life he may appear at some social or family
function at a future date and the child and her siblings would not be
protected by a Family Court order of protection.

FCA § 115 provides that the Family Court has exclusive original juris-
diction over abuse and neglect proceedings as set forth in Article 10.
FCA § 1011 states that the Article is designed to help and protect chil-
dren from injury or mistreatment and to safeguard their physical, mental
and emotional well-being. Since the Court is statutorily empowered to
issue an order of protection until a child's 18th birthday in a
custody/visitation matter, it defies logic that the Court would not have
a similar power under a child abuse/neglect proceeding.

The child sexual abuse case of Child Protective Services ex rel Ashley
B., in fact, represents the classic case compelling enactment of this
measure. Under current law, a parent, relative or other household member
living in the home of the child who is the subject of a child abuse
case, who has subjected the child to sexual abuse or other severe forms
of child abuse, may only be ordered out of the home for the period of
the disposition, typically six months (until the next permanency plan-
ning hearing) or one year, and may be extended for an additional year
(if supervision had been ordered). Incorporation into Family Court Act
§§ 1056 and 1089 of the family offense periods of two years and, where
special circumstances have been found, five years, is essential to
prevent further injury to children and critically important to effectu-
ate the purpose clause of the child protective article of the Family
Court Act, i.e., as stated in Family Court Act § 1011, "to help protect
children from injury or mistreatment and to help safeguard their phys-
ical, mental and emotional well-being."

This measure, which would have no meaningful fiscal impact on the State,
would take effect 90 days after it shall have become a law.
 
2018 LEGISLATIVE HISTORY:

OCA 2018-97

Senate 7886 (Sen. Avella) (advanced to 3rd Rdg.)