S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8047
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 11, 2021
                                ___________
 
 Introduced by M. of A. BYRNES -- read once and referred to the Committee
   on Children and Families
 
 AN  ACT  to  amend  the social services law and the family court act, in
   relation to allowing certain previous investigations to be re-examined
   using a fair preponderance of the evidence standard

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subdivisions 6 and 7 of section 412 of the social services
 law, as amended by section 1 of part R of chapter  56  of  the  laws  of
 2020, are amended to read as follows:
   6.  An "unfounded report" means any report made pursuant to this title
 unless an investigation: (i) commenced on  or  before  December  thirty-
 first, two thousand twenty-one determines that some credible evidence of
 the  alleged abuse or maltreatment exists; or (ii) commenced on or after
 January first, two thousand twenty-two determines that a fair preponder-
 ance of the evidence of the alleged abuse  or  maltreatment  exists;  OR
 (III)  COMMENCED  AT  ANY  TIME  IN WHICH THE SUBJECT OF THE REPORT IS A
 VICTIM OF DOMESTIC VIOLENCE AND THE SOLE BASIS FOR SUCH REPORT  IS  THAT
 SUCH  SUBJECT FAILED TO PROVIDE ADEQUATE GUARDIANSHIP DUE TO ENGAGING IN
 ACTS OF DOMESTIC VIOLENCE DETERMINES THAT A FAIR  PREPONDERANCE  OF  THE
 EVIDENCE OF THE ALLEGED ABUSE OR MALTREATMENT EXISTS;
   7. An "indicated report" means a report made pursuant to this title if
 an  investigation: (i) commenced on or before December thirty-first, two
 thousand twenty-one  determines  that  some  credible  evidence  of  the
 alleged  abuse  or  maltreatment  exists;  or (ii) commenced on or after
 January first, two thousand twenty-two determines that a fair preponder-
 ance of the evidence of the alleged abuse  or  maltreatment  exists;  OR
 (III)  COMMENCED  AT  ANY  TIME  IN WHICH THE SUBJECT OF THE REPORT IS A
 VICTIM OF DOMESTIC VIOLENCE AND THE SOLE BASIS FOR SUCH REPORT  IS  THAT
 SUCH  SUBJECT FAILED TO PROVIDE ADEQUATE GUARDIANSHIP DUE TO ENGAGING IN
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10966-01-1
              

 A. 8047                             2
 
 ACTS OF DOMESTIC VIOLENCE DETERMINES THAT A FAIR  PREPONDERANCE  OF  THE
 EVIDENCE OF THE ALLEGED ABUSE OR MALTREATMENT EXISTS;
   §  2.  The  opening  paragraph  of  paragraph  (a) of subdivision 5 of
 section 422 of the social services law, as amended by section 3 of  part
 R of chapter 56 of the laws of 2020, is amended to read as follows:
   Unless  an  investigation of a report conducted pursuant to this title
 that is commenced on or before December thirty-first, two thousand twen-
 ty-one determines that there is some credible evidence  of  the  alleged
 abuse  or  maltreatment or unless an investigation of a report conducted
 pursuant to this title that is commenced on or after January first,  two
 thousand twenty-two determines that there is a fair preponderance of the
 evidence  that  the  alleged abuse or maltreatment occurred OR UNLESS AN
 INVESTIGATION OF A REPORT CONDUCTED  PURSUANT  TO  THIS  TITLE  THAT  IS
 COMMENCED  AT ANY TIME IN WHICH THE SUBJECT OF THE REPORT IS A VICTIM OF
 DOMESTIC VIOLENCE AND THE SOLE  BASIS  FOR  SUCH  REPORT  IS  THAT  SUCH
 SUBJECT  FAILED TO PROVIDE ADEQUATE GUARDIANSHIP DUE TO ENGAGING IN ACTS
 OF DOMESTIC  VIOLENCE  DETERMINES  THAT  A  FAIR  PREPONDERANCE  OF  THE
 EVIDENCE  OF THE ALLEGED ABUSE OR MALTREATMENT OCCURRED, all information
 identifying the subjects of the report and other persons  named  in  the
 report shall be legally sealed forthwith by the central register and any
 local  child  protective  services  which  investigated the report. Such
 unfounded reports may only be unsealed and made available:
   § 3. Paragraph (c) of subdivision 5  of  section  422  of  the  social
 services  law,  as  amended  by section 4 of part R of chapter 56 of the
 laws of 2020, is amended to read as follows:
   (c) Notwithstanding any other provision of law, the office of children
 and family services may, in its discretion, grant a request  to  expunge
 an unfounded report where: (i) the source of the report was convicted of
 a  violation  of subdivision three of section 240.55 of the penal law in
 regard to such report; or (ii) the subject of the report presents  clear
 and  convincing  evidence  that  affirmatively refutes the allegation of
 abuse or maltreatment; provided however, that  the  absence  of  a  fair
 preponderance  of  the  evidence  supporting  the allegation of abuse or
 maltreatment shall not be the sole basis to expunge the  report,  EXCEPT
 THAT  ANY  REPORT  IN  WHICH  THE  SUBJECT OF SUCH REPORT IS A VICTIM OF
 DOMESTIC VIOLENCE AND THE SOLE  BASIS  FOR  SUCH  REPORT  IS  THAT  SUCH
 SUBJECT  FAILED TO PROVIDE ADEQUATE GUARDIANSHIP DUE TO ENGAGING IN ACTS
 OF DOMESTIC VIOLENCE MAY BE EXPUNGED WHERE THE ABSENCE OF A FAIR PREPON-
 DERANCE OF THE EVIDENCE SUPPORTING THE ALLEGATION OF ABUSE OR  MALTREAT-
 MENT  IS  THE  SOLE BASIS TO EXPUNGE SUCH REPORT.  Nothing in this para-
 graph shall require the office of children and family services  to  hold
 an  administrative hearing in deciding whether to expunge a report. Such
 office shall make its determination upon reviewing the written  evidence
 submitted  by  the  subject of the report and any records or information
 obtained from the state or local agency which investigated  the  allega-
 tions of abuse or maltreatment.
   §  4.  Section 651-a of the family court act, as amended by section 10
 of part R of chapter 56 of the laws of  2020,  is  amended  to  read  as
 follows:
   §  651-a.  Reports  of child abuse and maltreatment; admissibility. In
 any proceeding brought pursuant to this section to determine the custody
 or visitation of minors, a report made to the statewide central register
 of child abuse and maltreatment, pursuant to title six of article six of
 the social services law, or a portion thereof, which is otherwise admis-
 sible as a business record pursuant to rule forty-five hundred  eighteen
 of the civil practice law and rules shall not be admissible in evidence,

 A. 8047                             3
 
 notwithstanding  such  rule,  unless  an  investigation  of  such report
 conducted pursuant to title six of article six of  the  social  services
 law  commenced  on or before December thirty-first, two thousand twenty-
 one  has  determined that there is some credible evidence of the alleged
 abuse or  maltreatment,  or  unless  an  investigation  of  such  report
 conducted  pursuant  to  title six of article six of the social services
 law commenced on or after January first, two thousand twenty-two  deter-
 mines  that there is a fair preponderance of the evidence of the alleged
 abuse or  maltreatment,  OR  UNLESS  AN  INVESTIGATION  OF  SUCH  REPORT
 CONDUCTED  PURSUANT  TO  TITLE SIX OF ARTICLE SIX OF THE SOCIAL SERVICES
 LAW COMMENCED AT ANY TIME IN WHICH THE SUBJECT OF THE REPORT IS A VICTIM
 OF DOMESTIC VIOLENCE AND THE SOLE BASIS FOR SUCH  REPORT  IS  THAT  SUCH
 SUBJECT  FAILED TO PROVIDE ADEQUATE GUARDIANSHIP DUE TO ENGAGING IN ACTS
 OF DOMESTIC VIOLENCE DETERMINES THAT THERE IS A  FAIR  PREPONDERANCE  OF
 THE  EVIDENCE  OF THE ALLEGED ABUSE OR MALTREATMENT, that the subject of
 the report has been notified that the report is indicated. In  addition,
 if  such  report  has  been reviewed by the state commissioner of social
 services or his designee and has been determined  to  be  unfounded,  it
 shall not be admissible in evidence. If such report has been so reviewed
 and  has  been  amended to delete any finding, each such deleted finding
 shall not be admissible. If the state commissioner of social services or
 his designee has amended the report to add any new  finding,  each  such
 new  finding,  together  with  any  portion  of  the original report not
 deleted by the commissioner or his designee, shall be admissible  if  it
 meets the other requirements of this section and is otherwise admissible
 as  a business record. If such a report, or portion thereof, is admissi-
 ble in evidence but is uncorroborated, it shall  not  be  sufficient  to
 make  a  fact  finding  of abuse or maltreatment in such proceeding. Any
 other evidence tending to support the reliability of such  report  shall
 be sufficient corroboration.
   § 5. Subparagraph (i) of paragraph (a) of subdivision 8 of section 422
 of  the  social  services  law,  as amended by chapter 12 of the laws of
 1996, is amended and a  new  subparagraph  (vi)  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, EXCEPT WHERE THE INVESTIGATION
 WAS COMPLETED PRIOR TO JANUARY FIRST, TWO THOUSAND  TWENTY-TWO  AND  THE
 SUBJECT  OF  SUCH  REPORT  IS A VICTIM OF DOMESTIC VIOLENCE AND THE SOLE
 BASIS FOR SUCH REPORT IS THAT SUCH SUBJECT FAILED  TO  PROVIDE  ADEQUATE
 GUARDIANSHIP  DUE  TO  ENGAGING  IN  ACTS  OF DOMESTIC VIOLENCE, AND THE
 SUBJECT REQUESTS THAT SUCH REPORT BE RE-OPENED PURSUANT TO  SUBPARAGRAPH
 (VI)  OF  THIS  PARAGRAPH,  the  subject may request the commissioner to
 amend the record of the report. If the commissioner does not  amend  the
 report  in  accordance 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.
   (VI)  IN  CASES WHERE THE INVESTIGATION WAS COMPLETED PRIOR TO JANUARY
 FIRST, TWO THOUSAND TWENTY-TWO AND IT WAS DETERMINED AT A  FAIR  HEARING
 THAT  THERE WAS CREDIBLE EVIDENCE IN THE RECORD TO FIND THAT THE SUBJECT
 COMMITTED AN ACT OR ACTS OF CHILD ABUSE OR MALTREATMENT, AND THE SUBJECT
 OF THE REPORT IS A VICTIM OF DOMESTIC VIOLENCE AND THE  SOLE  BASIS  FOR
 SUCH REPORT IS THAT SUCH SUBJECT FAILED TO PROVIDE ADEQUATE GUARDIANSHIP

 A. 8047                             4
 
 DUE TO ENGAGING IN ACTS OF DOMESTIC VIOLENCE, THE SUBJECT OF SUCH REPORT
 MAY REQUEST THAT SUCH CASE BE RE-OPENED AND RE-EXAMINED USING A STANDARD
 OF   A FAIR PREPONDERANCE OF THE EVIDENCE IN THE RECORD TO FIND THAT THE
 SUBJECT  COMMITTED  AN ACT OR ACTS OF CHILD ABUSE OR MALTREATMENT WITHIN
 ONE YEAR OF THE EFFECTIVE DATE OF THIS SUBPARAGRAPH.
   § 6. Items (I) and (II) of clause (A) of subparagraph (i) and subpara-
 graph (ii) of paragraph (e) of subdivision 1 of  section  424-a  of  the
 social  services law, as amended by section 9 of part R of chapter 56 of
 the laws of 2020, are amended to read as follows:
   (I) the time for the subject of the report to request an amendment  OR
 RE-OPENING  of the record of the report pursuant to subdivision eight of
 section four hundred twenty-two has expired  without  any  such  request
 having been made; or
   (II) such request was made within such time and a fair hearing regard-
 ing  the request has been finally determined by the commissioner and the
 record of the report has not been amended OR RE-OPENED  to  unfound  the
 report or delete the person as a subject of the report; and
   (ii) If the subject of an indicated report of child abuse or maltreat-
 ment  has  not requested an amendment OR RE-OPENING of the record of the
 report and an inquiry is made to  the  office  of  children  and  family
 services  pursuant  to  this  subdivision  concerning the subject of the
 report, such office shall, as expeditiously as possible  but  within  no
 more than ten working days of receipt of the inquiry, determine whether,
 in  fact,  the person about whom an inquiry is made is the subject of an
 indicated report. Upon making a determination that the person about whom
 the inquiry is made is the subject of an indicated report of child abuse
 and maltreatment, the office of children and family services shall imme-
 diately send a written request to the child protective service or  state
 agency  which was responsible for investigating the allegations of abuse
 or maltreatment for all records, reports  and  other  information  main-
 tained  by  the  service  or state agency on the subject. The service or
 state agency shall, as expeditiously as possible but within no more than
 twenty working days of receiving  such  request,  forward  all  records,
 reports  and  other  information it maintains on the indicated report to
 the office of children and family services,  including  a  copy  of  any
 petition  or  court  order based on the allegations that were indicated.
 Where a proceeding pursuant to article ten of the family  court  act  is
 pending based on the same allegations that were indicated, the office of
 children  and  family services shall stay determination of whether there
 is a fair preponderance of the evidence to support the indication  until
 the  disposition  of  such family court proceeding. Unless such determi-
 nation has been stayed, the  office  of  children  and  family  services
 shall,  within  fifteen  working days of receiving such records, reports
 and other information from the child protective service or state agency,
 review all records, reports and  other  information  in  its  possession
 concerning  the subject and determine whether there is a fair preponder-
 ance of the evidence to find that the subject had committed the  act  or
 acts of child abuse or maltreatment giving rise to the indicated report.
   §  7.  This  act  shall  take  effect on the same date and in the same
 manner as part R of chapter 56 of the laws of 2020 and  shall  apply  to
 all  reports  filed in the statewide central register of child abuse and
 maltreatment.