Regular Session - March 16, 1999
1040
NEW YORK STATE SENATE
THE
STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 16, 1999.
3:02 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President.
STEVEN M. BOGGESS, Secretary.
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
come to order. I ask everyone present to rise
and repeat with me the Pledge of Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: With us today is
Revered Peter G. Young from the Church of the
Blessed Sacrament in Bolton Landing.
REVEREND YOUNG: Let us pray.
Dear God, we join in prayer for Your guidance
and inspiration. We pray that You may instill
in us dedication to again assist all of the
citizens of New York State. We ask You this
now and forever. Amen.
THE PRESIDENT: Thank you very
much.
Reading of the Journal.
THE SECRETARY: In Senate,
Monday, March 15th. The Senate met pursuant
to adjournment. The Journal of Sunday March
14th was read and approved. On motion, Senate
adjourned.
THE PRESIDENT: Without object,
the journal stands approved as read.
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Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator McGee
from the Committee on Alcoholism and Drug
Abuse, reports:
Senate Prints 560, by Senator
Fuschillo, an act to amend the Vehicle and
Traffic Law;
971, by Senator Skelos, an act to
amend the Vehicle and Traffic Law;
1432, by Senator Johnson, an act to
amend the Vehicle and Traffic Law.
Senator Maziarz, from the Committee
on Aging, reports:
Senate Prints 927, by Senator
Meier, an act to amend the Real Property Tax
Law;
2963, by Senator Maziarz, an act to
amend the Executive Law;
3080, by Senator Saland, an act to
amend the Public Health Law.
Senator Trunzo, from the Committee
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on Transportation reports:
Senate Prints 2589, by Senator
Wright, an act to amend the Vehicle and
Traffic Law;
2994, by Senator Trunzo, an act to
amend the Vehicle and Traffic Law and the
Public Authorities Law;
3012, by Senator Leibell, an act to
amend the Highway Law;
3170, by Senator Marcellino, an act
to amend the Vehicle and Traffic Law;
3244, by Senator Kuhl, an act to
amend the Vehicle and Traffic Law;
3319, by Senator McGee, an act to
amend the Vehicle and Traffic Law.
Senator Kuhl from the Committee on
Education, reports:
Senate Prints 2213, by Senator
LaValle, an act to amend the Education Law;
2577, by Senator Volker, an act to
amend the Education Law;
2622, by Senator Skelos, an act to
amend the Education Law;
2752, by Senator Saland, an act to
authorize the city school district of the City
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of Poughkeepsie;
3016, by Senator McGee, an act to
provide the State to deduct; and
3113, by Senator Meier, an act to
amend the Education Law.
Senator Marcellino, from the
Committee on Environmental Conservation
reports:
Senate Print 1917, by Senator
Farley, an act to amend the Environmental
Conservation Law.
All bills directly for third
reading.
THE PRESIDENT: Without object,
all bills directed and ordered directed to
third reading.
Reports of select committees.
Communications and reports from
State officers.
Motions and resolution.
Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
On behalf of Senator Meier on page
7, I offer the following amendments to
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Calendar Number 109, Senate Print 1480, and I
ask that that bill retain its place on the
Third Reading Calendar.
THE PRESIDENT: The amendment is
received. The bill retains its place on the
Third Reading Calendar.
SENATOR FARLEY: Also on behalf
on Senator Meier, Madam President, on page 13,
I offer the following amendments to Calendar
214, Senate Print 925, and I ask that that
bill retain its place at the Third Reading
Calendar.
THE PRESIDENT: The amendment is
so received and the bill will retain its place
on the Third Reading Calendar.
Senator Hevesi.
SENATOR HEVESI: Madam President,
I move that the following bills be discharged
from their respective committees and be
recommitted with instructions to strict the
enacting clause, Senate 2585.
THE PRESIDENT: So ordered,
Senator.
SENATOR HEVESI: Thank you.
SENATOR SKELOS: Madam President.
1046
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Are there any
substitutions to be made?
THE PRESIDENT: Yes, there are,
Senator.
SENATOR SKELOS: Please make
them, please.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 8,
Senator Lack, moves to discharge from the
Committee on Consumer Protection, Assembly
Bill Number 2597 and substitute it for the
identical Senate Bill third reading 120.
On page 19, Senator Kuhl, moves to
discharge from the Committee on Civil Service
and Pensions, Assembly Bill 3097 and
substitute it for the identical third reading
301.
On page 19, Senator Spano, moves to
discharge from the Committee on Agriculture,
Assembly Print 2333 and substitute it for the
identical Senate Bill third reading 293.
THE PRESIDENT: The substitution
is so ordered.
1047
Senator Skelos.
SENATOR SKELOS: Madam President,
at this time may we please adopt the
Resolution Calendar with the exception of
Resolutions 670 and 671.
THE PRESIDENT: All in favor of
adopting the Resolution Calendar with the
exception of Resolutions 670 and 671, signify
by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
can we take up Resolution 671 by Senator
Nozzollio. I ask that it be read in its
entirety and move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Nozzollio, Legislative Resolution 671,
congratulating the Auburn Doubledays on being
crowned New York-Penn Baseball League 1998
1048
co-champions.
Whereas, it is the sense of this
Legislative Body to recognize and commend
those who combined in a team effort to achieve
a common goal reflecting the community spirit
and representing their home towns with pride
in accomplishment, attendant to such concern
and fully in accord with its long standing
traditions, this Legislative body is justly
proud to congratulate the Auburn Doubledays
upon the occasion of being crowned 1998
co-champions of the New York-Penn Baseball
league.
Auburn, New York has proudly
fielded professional baseball teams since the
late 1800s. It is currently a minor league
affiliate of the Houston Astros.
Spanning nearly 130 years of
baseball in Auburn, the team has variously
been known by 13 names, five have been
reflected their major league affiliation while
others have reflected the region and local
businesses.
Among names by which Auburn
baseball teams have historically been know, by
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the Auburns, the Yankees, in 1889. The New
York Yankees did not assume their famous name
until 1913 when they changed their name from
the Highlanders. Also, the Maroons, Falcons,
Bulies, Cayugas, Auburn Americans, Red Stars
and Sunsets.
In 1996 the Astros Auburn franchise
adopted the name Doubleday in honor of the
Civil War hero and former Auburn resident
Abner Doubleday, who is widely credited with
inventing the game of baseball. Auburns of
the choice of the names Doubledays honors the
rich history of the game and provides a unique
identity for Auburns professional baseball
club.
A member of the New York Penn
league for nearly 30 years, the Auburn
Doubledays completed the 1998 season with a
winning record, 43 and 32, in their division
and went on to be declared co-champions of the
league.
Through their hard work, talents,
persistence and determination, the Auburn
Doubledays have distinguished themselves and
brought honor to themselves and their
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community.
It is with great pleasure that this
Legislative Body recognizes the effort and
dedication that makes championship teams and
commends the Auburn Doubledays for achieving
that goal, encouraging others to follow their
example and strive to achieve excellence in
their endeavors.
Now, therefore be it resolved that
this Legislative Body pause in its
deliberations to congratulate the Auburn
Doubledays upon the occasion of being named
1998 co-champions of the New York-Penn
Baseball League, and be it further resolved
that a copy of this resolution suitably
engrossed by transmitted to the Auburn
Doubledays.
THE PRESIDENT: The question is
on the resolution. All in favor, signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed nay.
(No response.)
THE PRESIDENT: The Resolution is
adopted. Senator Skelos.
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SENATOR SKELOS: Madam President,
may be please have Resolution 670, by Senator
Nozzolio read in its entirety and move for its
immediate adoption, and then if you would
recognize Senator Nozzolio
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Nozzolio, Legislative Resolution Number 670,
commending Leo Pinckney upon the occasion of
his designation as "King of Baseball" by the
National Association of Professional Baseball
Leagues.
Leo Pinckney has given not only of
his time and his energies, but also of his
competence, intelligence and leadership and
consequently has been designated for a special
honor.
Leo Pinckney has long been known as
"Mr. Baseball" in the City of Auburn, New
York. At baseball's winter meeting, Monday,
December 14, 1998, Leo Pinckney picked up
another title, "King of Baseball."
Instrumental in bringing minor league baseball
to Auburn 40 years ago, Leo Pinckney was
1052
chosen for the award by the National
Association of Professional Baseball Leagues
for his lifelong dedication and service to the
game. The award is given once a year.
Leo arrived in Nashville with no
knowledge of the fact that he was to be
honored. NAPBL officials contacted his wife
of 55 years, Chris, and members of the
Doubledays organization to insure that Leo
would be coming to the meetings.
A 1936 graduate of Auburn High
School, Leo was sports editor of the Citizen
for forty-five years. He continues to
contribute a weekly column. He has received a
multitude of honors for his work as a writer
and his contributions to a wide range of
organizations on the local and national level.
In 1993 the New York-Penn league
named one of its divisions after him. Three
years later the Baseball Hall of Fame asked
Pinckney to throw out the ceremonial first
pitch of its annual game during induction
weekend in Cooperstown. Among all of the
accolades he has received, Leo said this one
ranks right at the top.
1053
NAPBL President, Mike Moore,
presented Leo with a kings crown, a kings
robe, a baseball diamond shaped glass trophy
and a Louisville Slugger baseball bat
inscribed, "Leo Pinckney, King of Baseball."
Rare indeed is the impressive
dedication shown by an individual to the
benefit of others which Leo Pinckney has
displayed throughout his life; now, therefore,
be it
Resolved, that this Legislative
Body pause in its deliberations to honor Leo
Pinckney upon the occasion of his designation
for special honor; and be it further
Resolved, that a copy of this
Resolution, suitably engrossed, be transmitted
to Leo Pinckney.
THE PRESIDENT: Senator Nozzolio.
SENATOR NOZZOLIO: Thank you,
Madam President, on the resolution.
Madam President, my colleagues,
these resolutions, first honoring the Auburn
Doubledays on the occasion of their
championship of the New York-Penn League, and
in my view, more importantly the resolution
1054
that this body is about to vote on are
resolutions that are sponsored in the Assembly
by Assemblyman Dan Fessenden, who is here with
the board of directors of Auburn Community
Baseball. And the board of directors of the
Doubledays, the only municipally owned
baseball team, I dare say, in the state if not
the nation. I would like to welcome them to
this body.
First, Chuck Mason, who is the
Auburn city counsel representative on the
board of directors, Jim Hutchinson, who serves
as treasurer of the Auburn Doubledays, Charles
Lynch, an attorney who represents them for
many years in that capacity as well as a
director and last but not least, the person
who is being honored by this resolution,
President of the Auburn Doubledays, Leo
Pinckney.
I want to just mention a word about
Leo Pinckney. That if it were not for the
efforts of Leo there would be no Auburn
Doubledays, there would be no New York-Penn
Baseball League. Leo has given tirelessly of
his time and energy to make sure that the
1055
national past time born in New York State
continues in the communities of New York
State, not just in the cities, but in those
small cities and towns across New York where
baseball was born. Leo certainly deserves the
title of "King of Baseball." We have a great
deal to thank him for, not just in Auburn, but
all across New York, for what he has done in
keeping the flame of the New York-Penn league
and baseball, professional quality baseball,
in our communities alive.
Madam President, it is with great
honor that I present these two resolutions on
behalf of Assemblyman Fessenden and I welcome
these distinguished guests to Albany and thank
this Legislature for its consideration.
THE PRESIDENT: The question is
on the resolution.
All in favor, signify by saying
aye.
(Response of "Aye.")
THE PRESIDENT: Opposed nay.
(No response.)
THE PRESIDENT: The resolution is
adopted and on behalf of the Senate I extend
1056
to you all of our courtesies and
congratulations and have a wonderful day.
(Applause.)
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
if we could take up the non-controversial
calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
157, by Senator Johnson, Senate Print 2399, an
act to amend the Education Law, in relation to
requiring.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
161, by Senator Fuschillo, Senate Print 557,
an act to amend the Real Property Tax Law, in
relation to granting.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
1057
(The Secretary called the roll.)
THE SECRETARY: Ayes 53.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
208, by Senator Skelos, Senate Print 1075, an
act to amend the Social Service Law and the
Family Court Act.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
212, by Senator Saland, Senate Print 2722, an
act to amend the Family Court Act, in relation
to evidence.
THE PRESIDENT: Read the last
section.
SENATOR DUANE: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
213, by Senator Saland, Senate Print 2724, an
act to amend the Family Court Act, in relation
to judicial notification.
SENATOR PATERSON: Lay it aside.
1058
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
219, by Senator Meier, Senate Print 1910, an
act to amend the General Construction Law, the
Real Property Tax Law and the Public Officers
Law.
THE PRESIDENT: Read the last
section. I'm sorry, Senator Meier.
SENATOR MEIER: I would like to
explain my vote, Mr. President.
THE PRESIDENT: We have to read
the last section first. Read the last
section.
THE SECRETARY: Section 14. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator Meier,
explain your vote.
SENATOR MEIER: Thank you, Madam
President. This bill may seem a technicality
to some. Essentially what it does is it puts
in one place, in an easy form, the dates of
various conflicts to make it easier to define
1059
who is eligible for certain veteran's
benefits, and that sounds dry, but the bill is
impressive when you look at the catalog that
it refers to of things that we in the State of
New York do in order to protect the benefits
of our veterans and in order to protect and
honor their legacy in their service.
This is part of a package of bills
that the Senate is acting upon today. It
comes upon the heels of the announcement by
Senator Bruno that we will be contributing in
an appropriate amount of one dollar for every
World War II veteran to the World War II
Memorial in Washington, D.C.
And it is even more fitting that we
take up this bill and others in the package
today because today is American Legion day
here in the Capitol and we are honored to have
here today in the Chamber with us the
Department of New York Commander of the
American Legion, Bob Morrill, who is here
today.
We thank the Commander for joining
us today and his fellow Legionnaires and on
behalf of the Senate we welcome you and are
1060
proud to put forward this Legislative agenda
for the veterans that you so capably serve.
I vote aye.
THE PRESIDENT: Senator, you are
so recorded as voting aye. The Secretary will
read the results.
THE SECRETARY: Ayes 55.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
233, by Senator Marcellino, Senate Print 831,
an act to amend the Parks Recreation and
Historic Preservation Law.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
247, by Senator Kuhl, Senate Print 3044, an
act to amend the Military Law, in relation to
the conspicuous service cross award.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act would take effect immediately.
THE PRESIDENT: Call the roll.
1061
(The Secretary called the roll.)
THE PRESIDENT: Senator Kuhl.
SENATOR KUHL: I would like to
explain my vote.
THE PRESIDENT: Go ahead,
Senator.
SENATOR KUHL: Thank you, Madam
President.
Throughout the year 1999, as we
count our way down to the year 2000 and the
beginning of the new century, much of our
celebration will involve reminiscing about the
past century. As we recall the Twentieth
Century our focus must fall on the prominent
role that American servicemen and servicewomen
have played in shaping the America that will
begin the 21st Century, a nation defined by
freedom, by promise and by strength. As we
recall the 20th Century we will be given
countless reminders of the debt of gratitude
that America's veterans have earned. The
Senate's action today, particularly on this
bill, is one opportunity to express our
gratitude.
This legislation, this bill expands
1062
the list of those who are eligible to receive
New York State's highest military award, the
conspicuous services cross. Specifically it
would expand the eligibility list to include
deceased veterans who were killed in action.
And just by way of information, there were
27,659 veterans from New York State killed in
World War II. There were 2,249 veterans from
New York State who were kill in the Korean
War, and there were 3,380 individuals who were
residents of the State of New York who were
killed in Viet Nam.
Those state veterans who sacrificed
their lives to preserve our nation's freedoms
and ideals should be eligible for the
conspicuous service cross. And I believe that
they deserve our continued recognition and
respect.
I voted aye. Thank you.
THE PRESIDENT: Senator Kuhl, you
will be recorded as voting in the affirmative.
The Secretary will announce the
results.
THE SECRETARY: Ayes 57.
THE PRESIDENT: The bill is
1063
passed.
THE SECRETARY: Calendar Number
275, by Senator Stafford, Senate Print 1849,
an act to amend the Executive Law, in relation
to designating September 11th as Battle of
Plattsburgh Day.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effective immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President, I just rise and I regret that
Senator Stafford isn't here, but if you recall
last year during the middle of the debate
about changing the name of the cemetery at
Saratoga, Senator Stafford educated me on the
importance of the Battle of Plattsburgh, so I
rise. I will be voting in favor.
I still, however, dispute with
Senator Stafford that the most famous battle
ever fought within New York State is the
1064
Battle of Saratoga that really provided the
impetus for a winning American Revolutionary
War, but nonetheless, the Battle of
Plattsburgh deserves the recognition that
Senator Stafford is according to it.
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative. The
Secretary will announce the results.
THE SECRETARY: Ayes 57.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
287, by Senator Larkin, Senate Print 175, an
act to amend the Education Law, in relation to
expanding.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect on the 120th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 57.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1065
288, by Senator Meier, Senate Print 1250, an
act to amend the Education Law and the Public
Health Law.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 9. This
act shall take effect on the 120th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 57.
THE PRESIDENT: The bill is
passed.
Senator Skelos, that completes the
non-controversial reading of the calendar.
SENATOR SKELOS: Madam President,
if we could take up the controversial calendar
at this time.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
157, by Senator Johnson, Senate Print 2399, an
act to amend the Education Law, in relation to
requiring.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
1066
President, on the bill, I think that we all
would wish to observe the Pledge of Allegiance
and we certainly do so here in this chamber as
we have going back to 1987 when we passed a
resolution to start reciting the Pledge of
Allegiance before our deliberations. And I
just hope that in the spirit of Senator
Johnson's bill that the egregious cuts to
higher education, a hundred fourteen million
dollars, the cutting of the TAP hours from 90
to 75 and some of the other services that are
being lost that may add up to finding 20,000
students that won't be able to recite very
much since they won't be in school, I just
hope that in our budget deliberations that we
try to be as inclusive in all those, many of
them who have fought through some of the
problems in their lives an in the
neighborhoods to get to college and to make it
as possible for them to stand before their
peers and graduate at certain ceremonies and
celebrations to be able to recite that Pledge
of Allegiance with the full assurance that
they will have every opportunity to leave
college, go out into the job market and become
1067
productive tax paying citizens of this
country.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President, I voted for this bill in the past
and I am going to vote for it again, but I
would just caution all of my colleagues that
the one thing that I think that makes America
worth fighting for, the one thing that we all
should be proud of is that we live in a
country where we do not require as a matter of
law that people be patriots. That we give
them a choice. That we let them exercise
their own free will to decide what they want
to do in this country and how they want to
honor the flag and how they want to honor the
nation in which they live. It seems that is
the fundamental freedom that we had our first
veterans enshrined for 220 years ago. And as
I understand it that is the freedom that every
veteran and every American has stood up for
the last 225 years. And that is the
occasional freedom to disagree with your
government, or to choose not to be a patriot.
1068
And I would just caution those that suggest
that this is patriotism enshrined in law is
that too often perhaps it becomes as one
person once described it, the last refuge of a
scoundrel.
I hope that as we ask and require
as this bill does, the National Anthem and the
Pledge of Allegiance at graduation ceremonies
at State sponsored institutions, that we are
not falling into that last place of refuge.
THE PRESIDENT: Read the last -
excuse me. Senator Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President, just briefly on this bill, I have
in the past voted no. And I guess
symbolically I voted no because I don't like
the fact that we order the young people to do
the Pledge when at the same time with the
other stroke of our other hand we cut programs
for young people in our higher education
institutions. But today I am going to change
my vote. I am voting yes. But I want to just
remind my colleague that the Pledge of
Allegiance of to me, to the Flag, means that
we are pledging allegiance to the basic
1069
principle of democracy in our nation. And
part of that is that there should be
opportunity for people to enjoy the best of
our nation and to be part of the building of
our nation and the system that has made it
possible for so many of us to become full
participants in this, in the development of
our nation has been public education. And the
more we try to destroy public education or to
undermine that system I think the more it goes
against our Pledge of Allegiance.
So I hope that my voting yes is not
taken that I am backing away in any way from
what I believe to be the basic principles of
democracy in our nation, but Madam President,
I am voting yes.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act should take effect on the 120th day after
it shall have become law.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 56, nays
one. Senator Duane recorded in the negative.
1070
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
208, by Senator Skelos, Senate Print 1075, an
act to amend the Social Services Law and the
Family Court Act.
SENATOR OPPENHEIMER: Ask for an
explanation.
THE PRESIDENT: Senator Skelos,
an explanation has been requested.
SENATOR SKELOS: This legislation
has passed the Senate on numerous occasions,
1996, 1997, 1998. Votes varying from 54 to
two, 54 to one.
Basically what it does is a 1995
Court of Appeals ruling decided that a
positive toxicology test of a newborn was no
longer sufficient to supported an indicated
report of child abuse without more evidence of
abuse and neglect.
With this legislation if an infant
is born with an illegal substance in their
system it is prima facie proof of neglect.
Also the positive toxicology report raises a
rebuttal presumption that the release of such
1071
child to the parent presents an imminent
danger to the child's life or health.
THE PRESIDENT: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Actually I
have had no questions except I want to explain
why I am changing my vote, which in the past
has been a yes and I'm going to changing it to
a no vote. And I think the thing that is so
concerning to me is the making this single
test the prima facie evidence of neglect.
In the past I did understand that
the evidence of neglect did not mandate a
finding of neglect and did not mandate that
the child be taken away and I felt that was
sufficient and that's why I had voted yes.
But in thinking more about this, it sort of
turns things upside down. It is sort of like
you are not innocent until proven guilty, you
are guilty until you prove yourself innocent.
And right now we have our existing
law that requires a very thorough
investigation. It can not just be the single
testing of blood. And it does not even
provide for a double checking of the accuracy
1072
of the test and we all know that a single test
can be inaccurate. And it just -- and it
doesn't cover alcohol. That wouldn't make
sense to me because alcohol fetal syndrome is
every bit as bad as the drug syndrome. And it
is impossible to envision a woman challenging
this unless she had sufficient resources,
monetary resources, and also physical
resources. She might not feel very strong
after having given birth.
And there is another worrisome
thing about this that is causing me to change
my vote in that it could, you could see a
Pandora's box opening here that you could see
criminalizing of unhealthy activities by
pregnant women. It really does open the door
for the possible criminal prosecution of
pregnant women for behavior during their
pregnancy that could be seen as endangering
the fetus and it sort of is giving fetuses
rights, which I feel very strongly should not
be subjected to law.
I think this is just not an
acceptable bill when you start to really
examine it and I think that in changing my
1073
vote I am now seeing this is bill more clearly
and taking the right course.
Thank you.
THE PRESIDENT: Senator Sampson.
SENATOR SAMPSON: Madam
President, would the sponsor yield for a
couple of questions?
THE PRESIDENT: Senator Skelos?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: He so yields. Go
ahead, Senator.
SENATOR SAMPSON: Yes, threw you
Madam President, I would like to know who
decides when these tests should be conducted?
SENATOR SKELOS: I didn't hear
you.
SENATOR SAMPSON: Who decides
when the tests should be conducted as to these
newborns? Who makes the decision to test?
SENATOR SKELOS: The doctor would
make a determination. Generally the doctor
can tell, for example, when the birth mother
is brought into the maternity ward and about
to deliver, there are certain signs that he or
1074
she will see that indicate that the birth
mother is under the influence of drugs, plus
there is certain things they can visually see
from a child that is born that perhaps they
are under the influence of drugs or from the
birth mother.
SENATOR SAMPSON: Through you,
Madam President, would the sponsor continue to
yield?
SENATOR SKELOS: Yes, Madam
President.
SENATOR SAMPSON: So you are
saying the criteria is based upon his own
personal judgment?
SENATOR SKELOS: Basically,
Senator, what this legislation does it goes
back to what the practice was prior to 1995
when the Court of Appeals held in a case in
Nassau County that originated out of Nassau
County that a test positive, a positive
toxicology report in and of itself was not
enough to find indicated potential abuse by
the birth parent. We're basically going back
to that pre 1995 decision.
When a child is born generally
1075
there is no time within the hospital for a
parent to abuse that child because they are
being cared for. We're erring on the side of
the child saying why sent them home to a home
where drugs are being used to be perhaps
killed or injured prior to social services
stepping in, trying number one to protect that
child, but also number two, trying to get the
parents into drug counseling and help also.
SENATOR SAMPSON: I understand
that point, but some concern is that we might,
some doctors might deal with the issue of
profiling certain individuals who come into
that area. And my next question would be,
what kinds of devices are we putting in to
prevent those false positive tests, which can
occur?
SENATOR SKELOS: You can always
have the -- remember, it is a rebuttable
presumption. You can always have it retested.
But again, the basic premise of this bill is
that we are erring on the side of caution for
a newborn child.
Over one quarter of the children
who died from abuse were known to have been
1076
exposed to drugs before birth. So there is a
high correlation to abuse, whether it is death
or being seriously injured to a birth mother
using drugs. And in many instances because of
the short amount of time the drugs will stay
in the system, the blood, you know, I used
this example in previous debates, I mean, the
birth mother is literally taking crack or
smoking marijuana in the taxi or the car going
to the hospital.
SENATOR SAMPSON: I understand that
and I agree with you on certain points about
that, Senator. We should be concerned about
the welfare of the child. But once that
individual is tested positive, is there a
re-test within a certain period of time to
just -- because in instances there will be
cases where there will be a false positive.
What's the turn around time that we have to re
test?
SENATOR SKELOS: Well, the -
first of all the test -- the turn around time
on a test can be one hour, depending on the
type of test.
I think we have to have some
1077
discretion with the doctor if he feels for
example that the test has not been correct
that you can have another one. Or the birth
mother can say, Look, I'm not using drugs, can
you re-test me again.
But again, we are looking to
protect that child. And we are going back to
the way it was prior to 1995 when the courts
basically said, without legislative
authorization we can't do this any more.
SENATOR SAMPSON: No further
questions.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, very
much, Madam President. Would the sponsor
yield to a couple more questions?
THE PRESIDENT: Senator?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Duane.
SENATOR DUANE: Has any thought
been given to also including the father in
this legislation? And if not, why not?
SENATOR SKELOS: The drug at that
1078
time will have been transmitted to the child
through the mother.
SENATOR DUANE: I come at it at
two angles, if I may continue. The first is
that drug and alcohol contamination of sperm
could be as dangerous as any toxicology in the
mother, would you agree with that?
SENATOR SKELOS: No, that would
have happened nine months ago. We're talking
about the drugs to have the impact on the
child that would indicate to a doctor that
there is a problem would have occurred
probably within a couple days prior to the
birth of that child.
SENATOR DUANE: However, if we
are looking at damage over all to a fetus, the
damage could have begun even earlier than you
are willing to look at but because it has to
do with the father I think we are seeing a
blind spot as to whether or not that should be
a factor as well.
SENATOR SKELOS: Senator Duane,
Madam President, if I could, what we're really
looking at with this legislation is trying to
avoid putting that child into an abusive
1079
situation. Social services can always look at
the household and find if the father is
abusive and remove that child. But right now
all we can deal with is the birth mother and
the child that is born with perhaps drugs in
their system.
SENATOR DUANE: Madam President,
if I may continue along this line for a bit?
THE PRESIDENT: Senator Skelos,
do you continue to yield?
SENATOR SKELOS: Absolutely.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: However, if that
is the concern, although frankly I'm not that
concerned -- I mean, I am concerned, but I
don't think that is the way to approach the
problem is what I am trying to say, but to
follow your logic would it not be then better
to go all the way back and see whether or not
then the father and his sperm have been
tainted by drugs and alcohol. What I think is
that we're seeing a double standard, and I am
wondering if you might not agree that by only
focusing on the mother we're really only
1080
dealing with half of what the problem is that
you are trying to get at, though I may
disagree with your method.
SENATOR SKELOS: You raise an
interesting point, but the issue right now is
keeping that child or getting that child into
protective services as soon as possible.
SENATOR DUANE: To continue Madam
President, if I may.
THE PRESIDENT: Go ahead, Senator
Duane. Senator Skelos continues to yield.
SENATOR DUANE: Along the same
lines then you also just raised a statistic to
say that in twenty-five percent of these cases
it is found that the child is a victim of
abuse during the earlier part of their life.
Would it not also be safe to assume that that
is the case and in fact the vast majority of
cases which I know of, although I would be
interested to hear your statistics, actually
involved abuse on the part of the father in
one of these family situations, and not on the
part of a mother.
SENATOR SKELOS: And I would
guess, Senator Duane, that there are reams of
1081
legislation out here that look to address that
issue also.
SENATOR DUANE: Madam President,
to continue on this line.
THE PRESIDENT: Senator Skelos,
do you yield to an additional question?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: Go ahead,
Senator.
SENATOR DUANE: If that is the
case Senator, then why is that not part of a
whole package dealing with the issue of the
impact of alcohol and substance abuse on
families and on children? Would that not be a
better avenue than to just focus this on a
mother and, you know, a fetus, and potentially
a newborn.
SENATOR SKELOS: I am sure
throughout the legislative session you are
going to see bills that address all these
issues. This here is on its own as it has
been for a last four legislative sessions.
SENATOR DUANE: Although as you
know, Senator, I am a comprehensive a kind of
1082
guy and I have been calling for comprehensive
solutions to some of the things that we are
facing.
I think that what I might do is
because other issues having to do with the
toxicology etc., and the way to check it have
been brought up, if I may Madam President, on
the bill.
THE PRESIDENT: Senator Duane, on
the bill.
SENATOR DUANE: I also think that
we're on a slippery slope when we start to
recognize rights of fetuses at very early
stages. I am very concerned about prenatal
care. I think we all are concerned about
prenatal care. I don't think that this falls
into the category of where we need to be going
on the public policy issue as it applies to
prenatal care.
And the other issue is, I believe,
and courts may agree or may not agree with me
that this emphasis on testing is an invasion
of privacy and it is particularly directed
sadly and I think inappropriately towards
women, and the more specifically towards women
1083
who are pregnant or who may become pregnant.
And I think that we need to rethink whether or
not this is how we want to go in public policy
as it impacts families and women and children
and particularly prenatal care and probably
more comprehensively the issue of alcohol and
substance abuse. And in fact we will be
voting later today on another issue which I
think has a very negative impact on a mother's
inclination to get treatment for alcohol and
drug problems. Thank you, Madam President.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: If I could just
comment, just to make sure that you understand
that the test is performed on the child and
the drugs are transmitted from the birth
mother to the child.
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: Thank you, Madam
President. If the gentleman would yield to a
question or two?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: Go ahead Senator.
SENATOR WALDON: Thank you, very
1084
much, Madam President.
Senator Skelos, the National
Organization of Women is very much opposed to
your proposal and it would seem that an
organization representing women, one might
have a great interest in issues of this
nature, but also may have some expertise. Can
you illuminate us and tell us of organizations
you may be aware of which are supporting the
position you take in submitting this for our
consideration?
SENATOR SKELOS: First of all, in
terms of the National Organization of Women, I
know they opposed. But they are also a group
that referred to Nettie Mayersohn, who is the
sponsor in the Assembly, as part of a right
wing conspiracy and my understanding of
Assemblywomen Nettie Mayersohn, certainly she
is no part of any conspiracy and in fact she
has worked very closely with Senator Velella
on legislation that has benefitted children in
this state. People that support it is New
York City protective services, New York City
Office of the Mayor, Association of Family
Court Judges of New York State.
1085
SENATOR WALDON: Madam President,
may I continue, please? Would the gentlemen
continue to yield?
THE PRESIDENT: Senator Skelos,
do you continue to yield?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Waldon.
SENATOR WALDON: Thank you, very
much, Madam President.
Senator, did you consider including
in activities which might be injurious to the
fetus alcohol and tobacco, and did you
consider having a test of the fetus for being
filled with nicotine at birth or being so much
proof in terms of it blood from the imbibing
of alcohol?
SENATOR SKELOS: This deals
strictly with drugs, illegal drugs.
SENATOR WALDON: If I may
continue, Madam President?
THE PRESIDENT: You may continue,
Senator Waldon.
SENATOR WALDON: Thank you, very
1086
much, Madam President. Senator, are you aware
that we have had case law at the federal level
which says that we have no right to intervene
in the future of fetuses, that that is under
the penumbral zone or under the -
SENATOR SKELOS: There is a
little background conversation if we could.
SENATOR WALDON: Senator, you
have to understand when veterans get together
they sometimes do that kind of thing. My guys
from the service days. I apologize for that.
Let me be more specific if I may, Madam
President.
THE PRESIDENT: Go ahead,
Senator.
SENATOR WALDON: Thank you.
There is a case, Automobile Workers versus
Johnson Controls and Justice Blackman, the
distinguished Justice who sat for 24 years,
said decisions about the welfare of future
children must be left to the parents. Don't
you think we are being invasive by interfering
with this process?
SENATOR SKELOS: Senator Saland
pointed this is out to me just while Senator
1087
Duane was explaining his vote that in domestic
relation cases in areas of abuse, domestic
violence, the State makes a decision that to
some extent it is going to intrude within the
privacy of the family to protect whether it is
a woman being abused or a child being abused.
That the State makes a decision that we will
intervene and protect that individual.
SENATOR WALDON: May I continue,
Madam President?
THE PRESIDENT: Senator Skelos,
do you continue to yield?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Waldon.
SENATOR WALDON: Thank you, Madam
President.
I have another question Senator,
but it boggles my imagination that you would
say to us after hearing of the Justice's
decision that the State can make a decision to
intervene even though the Federal government
has said that in fact perhaps we shouldn't.
But lets talk about burden of proof for a
1088
moment, if I may.
SENATOR SKELOS: The courts -
decision change as the make up of the courts
also change.
SENATOR WALDON: I appreciate
that insight and I will keep it with me for
the rest of my life.
The burden of proof issue. Aren't
we changing the burden of proof from the
people to the person who has been violated by
this process? We are saying to the dear
mother who just gave birth, we don't have to
prove you guilty, you have to come forward and
prove yourself innocent. Isn't that
contraindicated to what America's jurist
prudence system is all about?
SENATOR SKELOS: First of all I
wouldn't define it as a process that is
violating somebody's rights as you defined it.
I would define it as through a doctor in his
professional judgment feeling that this child
has been injected with drugs through the
mother, that there should be urine tests taken
to find out if there are illegal drugs within
that child's system. And if there are that is
1089
-- it is indicated for abuse and that social
services should be notified, step in and
protect that child and that it is then a
rebuttal presumption as to whether in fact
that child does or does not belong with the
birth mother.
SENATOR WALDON: Madam President,
may I ask another question of the learned
gentleman?
THE PRESIDENT: Senator Skelos,
do you yield?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: You may proceed
with an additional question.
SENATOR WALDON: Thank you, very
much.
Senator, I thought I heard you say
earlier, and I may have been mistaken, I was
ruminating while you were talking and I
apologize for that about what was happening
with March madness and I saw my report today
on the teams I had picked and I'm not doing
well so I was a bit traumatized by that. I
then quickly got into the process and what I
1090
would like to know now more clearly is if the
toxicology report comes back and the mother
protests and then she wishes to appeal and
eventually she does appeal and the toxicology
report says it was false positive, what
happened to the child during the interim?
SENATOR SKELOS: First of all the
turn over in the test can be within a couple
of hours. That child is in the hospital. And
remember, the child, for the doctor generally
to order the test has indicated certain
symptoms that there are drugs within that
child's system and most likely that child will
be in the hospital for a period of time any
way.
SENATOR WALDON: Madam President,
if I may continue?
THE PRESIDENT: Senator Skelos,
do you continue to yield?
SENATOR SKELOS: Yes.
THE PRESIDENT: Go ahead,
Senator.
SENATOR WALDON: Senator, I never
had the benefit of going to Arthur Murray, but
that was a good dance. That didn't respond to
1091
my question from my perspective. I may be
wrong in my analysis, but I wanted to know
was -
SENATOR SKELOS: We all dance
differently.
SENATOR WALDON: That's good.
Some of us -
SENATOR SKELOS: Some of us lead,
some of us follow.
SENATOR WALDON: That's true,
that's true. I want to know, I want to know
in terms of the mother getting her test, this
is a poor woman perhaps, an African American,
Caribbean American, a Latino, a poor woman.
Where is she going to get her test conducted
and what is her turn around time going to be,
and is it not, from what you are saying to us
true, that once she has been perceived as a
positive test the jurisdiction of her child is
now out of her hands. Is that not correct or
am I misunderstanding something?
SENATOR SKELOS: Again, the child
gets tested and once again, we're just coming
at it differently. I believe at that point we
should err on the side of protecting that
1092
infant. It is just like within the State of
New York we have in domestic violence cases we
have a pro arrest policy. If you would like
to go back in the other direction you can
always put in legislation to accomplish that.
But I would rather lead when we are dancing
and be proactive and protect that child.
SENATOR WALDON: Madam President,
if I may ask another question?
THE PRESIDENT: Senator Skelos,
do you continue to yield for one additional
question.
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: Senator, you may
proceed with one additional question.
SENATOR WALDON: Okay, I got the
message, sub rosa, I got it. And I appreciate
the aplomb which you display here in running
this place. You have great style.
Senator, last question. Someone
who is not pregnant, someone who is not
pregnant, the doctor sees this person with the
eyes dilated, pupils dilated, and if you have
ever, as I have in my professional experience
1093
watched people who are under the influence of
drugs, they do different things. The heroin
addict drops almost to the floor and comes
back up, never touches the floor and you
wonder how could this person physically
respond in that way.
Would the doctor have the right to
say to that women who is not pregnant, I want
to test you to see whether or not you are
filled with drugs as the doctor in your
proposal can test the child just delivered by
the woman he perceived is pregnant without any
other indicia except his eyes told him that
she was a drug abuser?
SENATOR SKELOS: First of all,
again, in neither case are we testing the
mother, we're testing the child. And it is
based on the doctor's medical experience as
what he visualized not only with the mother
but also with the child.
SENATOR WALDON: Madam President,
let me thank you for your gaveling us so well
and let me thank the Senator for what he said,
and if I may on the bill.
THE PRESIDENT: Senator on the
1094
bill.
SENATOR WALDON: Thank you, very
much, Madam President.
THE PRESIDENT: Your welcome.
SENATOR WALDON: Senator, with
all due respect I understand what your
attempting to do. I too worry about children,
my daughter, and we are greatly appreciative
of this, is now four months pregnant. Barbara
and I will have another grandchild. We are
happy about that. We have one who is twelve
and we have begged them to give us more, and
they have told us it is none of our business.
But we are going to have another grandchild so
I am worried about what happens when this
child is born. I want this child to be as
healthy as possible. But I think that what
your proposing in regard to fetal rights one
violates what the Federal government has said
through its great court system is the
appropriate approach to this issue. I think
this is an invasion of privacy no matter what
you say. We are forcing someone to divulge
something that if not pregnant and if not in
this situation couldn't be done otherwise.
1095
I think that what this will do is
to come down on those who are least able to
defend themselves; poor, Black, Latino, inner
city. They are the ones who will be abused by
this process, and I think that in the wisdom
of what we do sometimes we ought to consider
that an organization as whatever it is in your
eyesight, whatever it is in my very
distinguished colleague in the Assembly Nettie
Mayersohn's eyesight, the National
Organization of Women has credibility on
women's issues and with women's issues, and we
should listen to them.
Their drummer beats the right
rhythm with regard to women's issues and I
think that we ought to listen to them, so I am
going to encourage my colleagues and ask my
colleagues to vote with me on this. We should
do this bill in. We should run our own test
and say it came back positive and we are going
to vote negative.
Thank you, very much, Madam
President.
THE PRESIDENT: Senator
Montgomery.
1096
SENATOR MONTGOMERY: Yes, Madam
President, I would wonder if the sponsor would
yield for a couple of questions?
THE PRESIDENT: Senator, do you
yield?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Montgomery.
SENATOR MONTGOMERY: All right,
Senator Skelos, the current law states that if
the court makes a finding of abuse or neglect
it shall determine based upon the facts
adduced during the fact finding hearing and
any other additional facts presented to it,
whether a preliminary order is required to
protect the child's interest before the judge
makes a determination of neglect.
But your bill adds a part which
says that except in the case of a newborn
where that baby is test positive. So I am
just wondering why is it that you are
establishing a harsher determination for a
woman whose just had a baby over any other
situation where there is a suspicion of
1097
neglect?
SENATOR SKELOS: Because I
pointed out earlier in the debate, generally
when a child is in the hospital there is
really no opportunity for the birth mother to
abuse that child in the hospital. I feel that
rather than sent the child home where
statistics show that there is such a high rate
of abuse that protective services should come
in, protect that child and then eventually
hopefully get the birth mother into counseling
and if the child is sent home that it is a
relatively safe and secure environment that we
are going to send that child home to.
SENATOR MONTGOMERY: Madam
President, if I can ask my colleague to
continue to yield?
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR SKELOS: Yes.
THE PRESIDENT: Go ahead.
SENATOR MONTGOMERY: Senator
Skelos, in your sponsor's memo one of the last
paragraphs on justification it says illegal
drug use during pregnancy creates a high risk,
1098
a high degree of risk that newborns will
exhibit neurobehavioral and circulatory health
complications that include neurological
defects, learning disabilities, low cognition,
physical and developmental delay and low birth
weight. These are exactly the same
neurobehavioral and circulatory complications
that appear in newborns of mothers who have
consumed alcohol. So why did we not include
them if we're concerned about the newborns it
seems to me in the same way.
SENATOR SKELOS: That could be a
separate bill, and if -
SENATOR MONTGOMERY: I'm not
advocating it but just wondering why that was
left out.
SENATOR SKELOS: As I mentioned
to one of the prior questioners, this just
applies to drugs.
SENATOR MONTGOMERY: Just applies
to illegal drugs under the current definition
of illegal drugs.
Madam President, I want to just
pursue one other issue with my colleague if
you will and that is Senator Skelos, we know
1099
that there are instances, there are examples
of programs that are in place as we speak
where, if drug treatment is offered to women
during their pregnancy as well as immediately
after the birth of their babies, and if they
are allowed to have treatment while they can
keep their babies there is a greater incentive
for them to get off of drugs, number one, so
it is more likely to be successful and that
these work.
It is my understanding that at one
time in our history New York State expressed a
commitment to this kind of treatment as an
answer to the issue that you are raising here,
ie, newborns tested positive. What happened
to that program and why aren't we talking
about that as opposed to establishing a level
of neglect which threatens the mother?
SENATOR SKELOS: Protective
services could determine that the child could
still go home. So if a mother is in one of
the these programs, protective services could
make a determination when the child is born,
that that environment will be safe and the
child can go home.
1100
SENATOR MONTGOMERY: All right.
Thank you, Senator Skelos.
Madam President, just briefly on
the bill. Obviously I find this very
troubling that we are once again moving in the
direction of penalizing the mother. We're
treating drug addiction as a crime rather than
as a sickness that needs to be dealt with.
And let me just say that I do view this as a
slippery slope because we know that the
fastest growing segment of the prison
population is women and most of the reason why
they are in there is related to some kind of
drug activity and so now we're setting up a
situations where a mother goes into the
hospital, has a baby, the baby tests positive,
and rather than treating that mother for the
drug addiction and attempting to bring her
back to health so that she can be a healthy
good parent we're placing her in a position
where, one, her child can be removed from her
and two, where eventually that parent might be
put in and categorized as having committed a
crime. That is the way some states have
addressed this issue by the way.
1101
So I am opposed to this. I that
think this is absolutely the wrong answer to a
problem. There are many better ways to do it,
and certainly we don't want to end up having
women go to jail because their babies test
positive. So I want to say again to my
colleagues, I'm not changing my vote on this.
I am voting no, once again.
SENATOR SKELOS: Madam President.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: I appreciate
your concern. But one day I spent the
afternoon at Hale House with Lorraine Hale and
her comment was basically that the child
should never go back to the parent that has
abused drugs during birth. So I think this is
a very moderate approach and reasonable
approach to dealing with this problem.
THE PRESIDENT: Senator Saland.
SENATOR SALAND: Thank you, Madam
President.
I rise to commend Senator Skelos
for what I would consider to be an absolutely
excellent job well done in the course of
bringing this bill before us. There certainly
1102
seems to be some misinformation or some
inappropriately drawn conclusions that are
being bandied about with respect to this bill.
One of my colleagues I heard refer to the
class of people who were most at risk, I think
he used the term being most vulnerable and
least protected as being certain mothers.
Well who is more vulnerable and less protected
than a newborn? That is the person with whom
we should be most concerned.
I heard several of my colleagues at
one time or another or several comments make
reference to fetal testing. There is no fetal
testifying involved under Senator Skelos'
measure, nor is there any testing required of
any women under Senator Skelos' measure.
And I guess those who are opposing
this bill are effectively advocating the
continuation of a system which effectively
cuts mother and child loose, unsupervised to
become statistics, perhaps fatalities, to
become statistics, perhaps a mother who will
go onto yet additional drug use and perhaps
get involved in the criminal justice system
because really without this kind of a measure,
1103
how in the world do you expect to try, even in
the name of family reunification to get a
mother into a program. There is absolutely
nothing in the existing law that directs or
pushes a mother of a child who is born with a
positive toxicology into a program. And there
is not a system in the world that you have in
this state that could possibly require that
mother to do it. She could basically thumb
her nose at you and say kiss off, I'm not
interested. And when she comes back again and
again and again and you've had multiple
incidents, and then when the child winds up
becoming a statistic you can say the NOW memo
told me, this shrill, ill informed piece of
garbage told me that I should not support this
measure. If you base it on this your
committing one of the vilest inappropriate
acts that anybody could commit because this is
purely a piece of junk.
I would like to congratulate again
Senator Skelos. He has labored long and hard
and he has the interest of children at heart
as he has shown time and again in many other
instances of dealing with child related
1104
issues.
I think we ought to get beyond what
I would consider to be misinformation, look at
the facts, how do we help children, how do we
help the mothers who those who seem to be
opposing this bill are concerned about. I can
assure you with absolute certainty and
challenge anybody on the other side of the
aisle to tell me how a mother under the
existing system who is abusing drugs and can
not go through a positive tox test is going to
be put into a program which will enable her to
seek assistance and enable her child to have
the opportunity to be nurtured and to grow
with that mother in an environment in which
that child will have at least a modicum of
opportunity instead of perhaps a condemnation,
a condemnation of a life of ill health, ill
performance and perhaps even death.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President, on the bill.
I appreciate -- I appreciate the
fact that this is a well intentioned measure
1105
designed to address a very difficult problem,
the problem of child abuse and child neglect
is severe.
However I have to say as someone
who, before I went to law school spent two
years working in a prison and most of my time
was setting up a drug and alcohol treatment
program in a correctional facility and for
those who just recently left the correctional
facility, I find that the drug treatment
policy of the present administration of the
State of New York to be utterly
incomprehensible to anyone who has ever worked
in a system like this.
And I think that the problem I have
with the bill in addition to several of the
issues that have been raised, that I really
have two points I want to make and I will try
and be as brief as possible.
It is absolutely clear that where
we have positive programs to encourage people
to participate in drug treatment it has a
tremendously beneficial effect. One of the
great drug treatment programs in the history
of the world, Phoenix House, is in my
1106
district. I have worked closely with them.
There are drug programs that work. And if you
test a newborn, the drug use is already done,
you are not helping a pregnant woman get into
a program. There are programs that can
accomplish that. We know what they are and
yet we see in the budget proposals of the
Governor and in his vetoes last year and in
the reluctance I understand or our own house
to restore funding massive cuts to funding for
adolescent treatment programs because we are
dealing with youthful mothers here. Massive
cuts to funding for school and community based
drug prevention programs.
So on the one hand we are telling
poor women, predominantly members of minority
groups, we are going do test you, we are going
to get you, penalize you. We are not
providing the funds before they get to the
hospital to deliver their baby to help them
and we know those funds can be effective if
they are applied properly.
The second point I want to make is
that this seems to be a part of a pattern
that, again, I find somewhat incomprehensible.
1107
We are making -- we are discouraging people
from going to health care facilities in this
state in a variety of ways. And I think it is
astonishing that at the same time we are
trying to deal with this issue and trying to
be tough on those who might abuse the system,
that I can not seem to get any progress on a
bill to encourage and protect women trying to
visit the very clinics where they get drug
counseling; family planning and reproductive
health clinics. We need to open up the doors
so that people can get into the programs that
will solve these problems and will actually
prevent children from being born and testing
drug positive.
I have to advise my colleagues, as
I do every week, that we have two further
reports of acts of violence and terrorism at
family planning clinics and I sit here week
after week hoping that the clinic
anti-violence bill will come to the floor.
Planned Parenthood of Chicago had
to be vacated yesterday when another anthrax
threat was received. Planned Parenthood of
Mexico at San Mateo was -- there was a bomb or
1108
a fire, they are not clear which, that
destroyed a portion of the clinic and they
also had another chemical threat. So this a
problem that we don't seem to be able to
address and I would urge you that if you are
concerned about pregnant women abusing drugs,
we know the facilities where poor women seek
counseling, where poor women get into drug
treatment programs, and I hope we will get the
clinic anti-violence bill to the floor so we
can begin to encourage people and support
people who want to get to see there doctors
and hopefully take that step.
I will vote no and I encourage my
colleagues to do likewise.
THE PRESIDENT: Senator
Marcellino.
SENATOR MARCELLINO: Thank you,
Madam President.
I want to rise also to congratulate
my colleague Senator Skelos in bring up this
piece of legislation that is much needed.
Anyone who has had any dealings
with drug addicts or has had to deal with drug
addiction knows full well that the addict is a
1109
very difficult person to deal with. They will
lie, they will cheat, they will steal. They
will do anything to get that god almighty
drug. They don't care about anybody. They
don't care about their parents, they don't
care about their children, they don't care
about their families, they don't care about
their friends, and frankly they don't care
about themselves.
The rate in the programs mentioned
by some of my colleagues, talk about
recidivism, they go back to it. They could be
off the drugs for a few weeks and the
inclination comes upon them, something happens
in their lives, they go back to the drug. The
drug is the almighty god, the drug is the
leading factor, the drug drives their lives.
What this bill is striving to do is
to take the children out of that lifestyle,
out of that realm, out of that filth, if you
will. You have to product the child. If the
mother can go get treatment, god bless her,
open up as many doors as possible for that.
We would be happy to do that. But the child
is there. That is a living creature and we
1110
have a responsibility to protect it and keep
it alive. We can not allow drug addiction to
destroy that child's life. And addicted
parents and an addicted mother who is taking
drugs while she is pregnant is destroying or
the potential to destroy that child's brain,
impact that child's development while it is in
the womb. Anything can happen to that child
so we have a whole host of problems that are
going to arise from this.
We must act to protect the child
first. That is the primary responsibility.
That's the new life. And that is what this
bill so correctly attempts to do. All the
rest that I am hearing about clinic access,
everything that my colleague mentioned, is a
crime now under current law, can be enforced
now under current law. You brought up
yesterday the bombing in North Carolina. To
my knowledge, and I would like the chair to
correct me if I am wrong, placing a bomb in
someone's place of business is a crime under
the current law when I last read it. I'm not
a lawyer. I'll back off on that if you can
correct me.
1111
There are criminal penalties to pay
for this. Catch the person who set the bomb,
put them in jail for the rest of their natural
lives, except we'll probably have someone on
the other side of the aisle stand up and say,
Wait a minute, we can't have a harsh penalty
like that once we've caught him because we
hear this debate over and over again when we
try to extend the penalties for these criminal
types of behavior. We can't do that, its too
harsh, its too strong, we take too many
liberties, we are taking away their rights,
all this kind of garbage. Meanwhile people
are dying, children are becoming addicts who
are born of addicted parents. This has to
stop. This society has to make a statement
and a very firm statement. Drug addiction at
any time is wrong. It is wrong. And risking
a child's life has got to be stopped now.
I vote aye on this bill and I urge
all my colleagues to vote aye. And I think
you Senator Skelos. This is an excellent bill.
THE PRESIDENT: Senator Balboni.
SENATOR BALBONI: Madam
President, in an effort to perhaps share
1112
another perspective that has not been
addressed today on this particular measure, I
spoke with my father about this bill last year
upon my arrival to the Senate because we never
see this bill over in the State Assembly.
My father is a pediatric
cardiologist. And he spent most of his career
in ORs, but also in delivery rooms,
particularly when it came time to address the
needs of the child upon birth with a cardiac
condition. To hear him talk about all of the
tests that we require by law in this State to
be performed upon infants upon birth, of all
of the extraordinary means we utilize to try
to preserve and protect the life of that
infant, the life of that newborn, and then to
hear on the floor that we are somehow
concerned that if a test is done on a child,
on a newborn, and it comes back positive that
some how we are not going to act on it.
Put yourselves in the position of
the physician who now has this newborn,
someone he is trying to bring to life and make
sure that the child survives and the child is
addicted to drugs and is in withdrawal, is
1113
showing symptoms of drug abuse. And you
expect a physician not to do anything about
it? That is ridiculous. Do you know right
now under the Public Health Law there is a
requirement that is a misdemeanor, is a
misdemeanor penalty on the physician if the
physician does not perform a blood test for
Phenylketonuria. It is a misdemeanor for the
physician not to perform that test. And the
argument that this is some how against the
rights of the mother because it presents
evidence without her being able to refute it,
hey folks, res ipsa loquitur -- the things
speaks for itself. The child is not going to
go out and get addicted to drugs. It shares a
circulatory system with the mother. The
reason why these drugs are so dangerous is
because not all things pass the placental
barrier, these drugs do.
Senator Skelos has had a history of
taking on tough causes and things that begin
as controversy but end as a law and common
sense in this State. I commend you again for
taking this effort up. I'm going to vote yes.
THE PRESIDENT: Senator Bonacic.
1114
SENATOR BONACIC: Thank you,
Madam President. I too stand in support of
this is bill for the following reasons. It is
troubling that we have to debate whether a
child should go back into the home and
preserve the family unit that is something
that I grew up with as a kid. And now we're
being told that some how when that child is
born at birth it is not going to go back to
the parents. That is troubling to me
conceptually because that's the way I grew up.
But society is not the same today. The
standards of the preservation of the family
unit is being challenged. And maybe it is a
sad state of our society when we see children
are being murdered in their homes, children
are being maimed in their homes.
One of the incidents, the
Christopher Gardner case in Sullivan County is
classic example of -- and I will not tell you
the details of it, but a child was literally
brutalized. Every bone in his body was
broken, thrown down a flight of stairs, burned
with cigarettes by a family, a mother and
boyfriends that were dysfunctional because of
1115
drugs. It is not proven in a court of law
yet, but that is the initial evidence.
Let me tell you what is happening
today. It was interesting to hear Senator
Waldon say the most vulnerable, I think, and I
am quoting now, and if I am not quoting
correctly you tell me, is the poor, the Black
and the Hispanic, talking about the mother.
Who could be more vulnerable than the baby,
thats one day old or two days old and has
drugs in their body.
There was -- these statistics are
not accurate but they are close. There was a
national study of children that were killed in
their homes from abuse and it was like close
to two million since 1996. And 75 percent of
the children that were killed was by the
spouses, maybe one or boyfriends in the home.
So when we put children in the concept of the
home it is not necessarily a safe environment
any more. Things are changing. And although
it may be an admission of a failure of society
and the breakdown of the family unit, somebody
-- somebody has to step up to the plate to
protect that child. And Senator Skelos with
1116
his bill starts that debate and I challenge
you, who else is going do to for that child if
we don't start.
And you know the other things you
talk about are very legitimate. Maybe better
drug treatments for the mother. Absolutely.
That's another fight. That is another issue.
But every time and every day we debate and we
delay every hour there is going to be another
death from a child that went back to the so
called home, the safe environment that simply
is not safe any more.
So I think it is a fact of life
today of our society and it is a sad
commentary, but we have to start soon and this
is why I stand up in support of this
legislation.
Thank you, very much, Madam
President.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President, I rise frankly not quite sure what
to do with respect to this bill. I voted in
favor of it in the past. I just want to
1117
review some of what has been said and maybe
look at the underlying nature of this bill and
what exactly it does.
First of all, I hope I didn't
misunderstand Senator Marcellino. I hope he
didn't say, and maybe I misinterpreted, I hope
he didn't suggest that taking away someone's
rights suggesting that you were taking away
someone's rights garbage. I would hate to
think that in this chamber taking away rights
granted to them by the New York State
Constitution, the United States Constitution,
that somehow taking away those rights, or
those of us who suggest that government may be
taking away someone's rights, that that
argument is garbage. I would suggest that
that instead is the principle for which this
country was founded. That government is
restricted in the ability of what it can do.
And those who argue for individual rights,
whether it is the rights of a pregnant mother
or anyone else's rights, are simply seeking to
preserve the principles that this country was
founded on; the relationship between
government and the individual.
1118
Senator Balboni, with all due
respect I don't think anyone in this chamber
is suggesting that we shouldn't do anything
upon a finding of a positive toxicology
report. That is not what this bill is about.
The bill isn't about whether we do nothing.
This bill is about whether we create prima
facie evidence of neglect upon a finding of a
toxicology report that is -- that shows
evidence of exposure to drugs. So I
appreciate your comments, but we are not
comparing doing nothing to this bill. In
fact, that evidence can be used as some
evidence of neglect in an abuse proceeding.
What Senator Skelos' bill does, as I
understand it, is it establishes a rebuttable
presumption. And it also constitutes prima
facie evidence of neglect. This alone could
constitute neglect. So with all due respect
to Senator Balboni, and I appreciate your
bringing your father's experience because I
think it is important, but we are not talking
about a situation where we are saying do
nothing. We have under the current system
that can be used as evidence of neglect. What
1119
Senator Skelos' bill does is it rises it from
some evidence of neglect to become prima facie
evidence. This alone may be sufficient to
withdraw parental rights.
Senator Bonacic, I would simply
comment to you that I agree with you about the
importance of children. But remember what we
are talking about doing. The bottom line of
what Senator Skelos will do, and it may be
warranted in some cases, is we are empowering
government in certain instances to do one of
the most critical things that we can ever do
and that is to take a child away from its
mother. That is the bottom line. And I would
suggest to you, anyone who suggests, as some
of my colleagues have indicated, that this is
something we ought to be very sure we're doing
the right thing as I think Senator Skelos
would say. Senator Skelos' position on this
bill is that evidence of a positive toxicology
report is sufficient for the power of
government to sever the parent relationship
and take the child away from the mother. That
is an enormous power for government to have,
and I would just suggest that my colleagues
1120
who have suggested that we should do this
carefully and with good reason are well
justified in their position.
My concern about this bill does not
so much lie in what it does in its intent, but
the science that under lies it. You have
heard a discussion today about the nature of
positive toxicology reports and what they
mean. Let me give you some additional
evidence that comes to you from the following
sources: This from the Center on Substance
Abuse Treatment, United States Department of
Health and Human Services in a publication in
1998 entitled, Pregnant Substance Abusing
Women, states, "A pregnant woman who is
addicted to heroin faces a catch 22. If she
stops cold turkey, as some advocates urge, the
resulting withdrawal can cause fetal death.
If she continues to use heroin, if she
switches to methadone the child will still
undergo withdrawal because both substances are
addictive to the newborn.".
Let me quote an opinion from
Sheriff v. Encore, a case from Nevada in 1994
in which substance abuse statutes were used
1121
against women who tested positive for
toxicology. The court found that the child
abuse statute could not be used to against a
pregnant woman because to hold otherwise would
open the flood gates to prosecution of
pregnant women who ingest such things as
alcohol, that very addictive, very powerful,
substance which impacts fetal health, which is
not included in this bill, nicotine, that even
more addictive and dangerous substance, which
is also not included in this bill, and a range
of miscellaneous otherwise illegal toxins.
There has been discussion about who
is addicted to drugs. Who as a pregnant woman
is addicted to drugs. Let me provide you with
some information from the Southern Regional
Projection Infant Mortality, A Step Toward
Recovery in 1993 which says the following:
"Newspaper reports in the 1980s sensationalize
the use of crack cocaine and created a new
picture of the typical female addict; young,
poor, Black, urban, on welfare. The mother of
many children and addicted to crack. In
interviewing nearly 200 women for this study a
very different picture of the typically
1122
chemically dependent woman emerges. She is
most likely White, divorced or never married,
age 31, a high school graduate, on public
assistance, the mother of two or three
children and addicted to alcohol or one other
drug. It is clear from the women we
interviewed that substance abuse among women
is not a problem confined to those who are
poor, Black or urban, but crosses racial,
class, economic and geographic boundaries.
Further evidence questions the
science of the correlation between toxicology
reports and a finding of -- presumptive
finding of neglect.
THE PRESIDENT: Excuse me,
Senator. Senator Saland, why do your rise?
SENATOR SALAND: Would Senator
Dollinger yield to a question?
THE PRESIDENT: Senator
Dollinger?
SENATOR DOLLINGER: I would be
glad to Madam President, when I am finished.
THE PRESIDENT: He does not
yield, Senator.
SENATOR DOLLINGER: The brief -
1123
amicus curiae -- the brief of the California
Medical Association and the American College
of Obstetricians and Gynecologists filed in
1993 contained the following information.
Identified drug exposed infants should be
reported to child protective services only if
factors in addition to prenatal drug exposure
show that the infant is at risk for abuse or
neglect.
A brief filed on behalf of those
people who attend to children and who comment
that that finding alone shouldn't be
sufficient to show neglect.
And a couple more quick ones just
for the record. In a survey the Center for
Health Policy Research at George Washington
University in their book -- their article
entitled, Analysis of Resources to Drug
Exposed Infants and their Families says, "A
survey of women's attitudes regarding punitive
laws found that substance abuse pregnant women
would go underground and avoid treatment for
fear of incarceration or loss of their
children." The experts commenting on the fact
that if the drug test is going to be positive
1124
there is a danger that they will go
underground and they will get away from the
very treatment that we would like them to
have.
From a report in the United State
General Accounting Offices, Drug Exposed
Infants, a Generation at Risk, it states,
"Many women's treatment experts contend that
as stigma, rejection and blame increase drug
abusing women's feelings of guilt and shame
increase. This leads to lower self esteem,
increased depression, immobilization and
isolation. As societal stigma increases,
willingness to enter drug treatment
decreases."
Finally from the Criminalization of
Prenatal Use, "Punitive measures will be
counterproductive." In 1990 from the National
Association of Perinatal Addiction Research
and Education. "If a woman does go to
prenatal care or delivery she will be less
likely to disclose her drug and alcohol use to
her health care providers if she believes that
she will be subject to criminal prosecutions
or loss of her child. Thus her doctor and her
1125
nurse will not have all the information he or
she needs to treat the woman and her
subsequently born child."
Again, this will only serve to
impede the long term goal of insuring the
health and well being of mothers and their
children.
And lastly I would close with one
other comment that my colleagues have made
about tobacco use and nicotine. Understand
that as dangerous as the ingestion of illegal
drugs may be, there is no question that
tobacco use is the prime killer of children
who are born if their parents are addicted to
nicotine. It says, "Tobacco use is also
responsible for an estimated 1900 to 4800
infant deaths resulting from perinatal
disorders and from 1200 to 2200 deaths from
sudden infant death syndrome."
What does all that mean? It all
means that if you look at the legislative
declaration that underlies this bill you will
find that the science it is based on is highly
contested, highly contested. That the facts
that they would have you draw in the
1126
legislative declaration are really
significantly debated throughout this country.
I don't believe that there have
been any hearings on this bill. I would
suggest that before we declare this to be the
science of this state, we ought to hear from
other experts who may know a little bit more
about the problem. We ought to hear from
other experts about the nature of this issue.
Given all that, Madam President, I
close with one other thought. I'm not even
sure as I sit here right now how I am going to
vote on this is bill, but I will say one thing
in conclusion. I believe that this bill
continues a trend that I find very
discouraging, and that is that we tend to put
together solutions to problems without giving
people the resources to make them work.
I would suggest, Senator Skelos,
that this bill which will require prima facie
evidence of -- would create prima facie
evidence of neglect on the part of the mother
will immediately lead to a significant
increase in Family Court applications for
neglect. In enormously difficult situations
1127
where mothers have just given birth and are
informed immediately after their birth within
48 hours before they got out of the hospital
because we gave them 48 hours to stay, they
are going to be told that their child is going
to be removed from their custody.
I would suggest that before we put
this bill into law, lets put our money where
our mouth is. If we are going to do it, if we
want to do this, lets put a 25 or 35 million
dollar appropriation behind this bill for the
Family Courts of this State so that we know
that they can handle the neglect procedures
that are going to -- that are inevitably going
to follow from this bill.
Again, Madam President, I am still
making up my mind, but at least at this point
I think the science of it is suspect. I also
think that the -- frankly the decision weighs
in favor of voting against it.
THE PRESIDENT: Senator Saland.
SENATOR SALAND: I had asked a
bit earlier if Senator Dollinger might yield.
If he still has the floor?
THE PRESIDENT: He indicated he
1128
would yield when he finished.
SENATOR DOLLINGER: I did Madam
President. I apologize for concluding without
recognizing Senator Saland.
SENATOR SALAND: Thank you, Madam
President.
If Senator Dollinger yields through
you, Madam President?
THE PRESIDENT: Senator Dollinger
has already indicated he yielded at the end of
his presentation, so you may proceed, Senator
Saland.
SENATOR SALAND: Thank you.
Senator Dollinger, in your earlier remarks I
believe you said, and rightfully so, that this
bill establishes a prima facie -- as prima
facie where there is a positive toxicology
report on an infant. And the question that I
have of you is that, is it your understanding
that based upon that positive toxicology
finding that a child would then -- that that
child would then summarily be removed from
that child's mother?
SENATOR DOLLINGER: Madam
President, are you asking about current law or
1129
the effect of this bill?
SENATOR SALAND: Under this bill.
SENATOR DOLLINGER: It is my
understanding that it would create prima facie
evidence that alone would stand for a finding
of neglect. A court would find neglect based
on that fact alone. That is what a prima
facie case is.
SENATOR SALAND: Madam President?
THE PRESIDENT: Senator
Dollinger, do you continue to yield?
SENATOR DOLLINGER: Yes, I do
Madam President.
THE PRESIDENT: Go ahead, Senator
Saland.
SENATOR SALAND: It has been a
long time since I have been in law school, but
my understanding with respect to a prima facie
case is that it is just that, prima facie. It
gets you through the door. It does not
necessarily amount to being dispositive. And
depending upon what follows there will be
determination as to whether or not you prevail
or not.
So I would ask you the question
1130
again. Is it your understanding that Senator
Skelos' bill which yes, does establish where
there is a pos tox a prima facie finding of
neglect. Is that enough to summarily remove
the child from its mother?
SENATOR DOLLINGER: And the
answer I believe, according to law, Your
Honor, is yes, it is. Once you establish a
prima facie case, in the absence of evidence
from the opposing party, you are entitled to
judgment as a matter of law. You have
established what is necessary to remove the
child.
And what this does, as I understand
it, unless I am mistaken, is this shifts the
burden of proof from the government to the
mother. And it says to the mother, we found
prima facie evidence, we can take your child,
tell us why we shouldn't. And I would suggest
that that radically alters the system of
burden of proof in this State and in the
Family Courts before a child is removed from
their mother.
May I add one other thing, Madam
President, if I may. If I am mistaken I would
1131
be glad to have a correction from Senator
Skelos or someone else who better understands
the bill.
SENATOR SALAND: Let me take it a
step further and go back to your comments. I
think your comments imply that there would be
a hearing, correct? I mean, that was the gist
of your comments, that the burden of proof
shifts. Therefore if the burden of proof
shifts, this has to be in a forum in which
there is a presiding officer and there is
hearing; is that correct?
SENATOR DOLLINGER: I assume so,
Madam President. I do not know. I don't do
this kind of legal work. But I assume there
is a hearing, right.
SENATOR SALAND: And if Senator
Dollinger will continue to yield?
THE PRESIDENT: Senator
Dollinger, do you continue to yield?
SENATOR DOLLINGER: Gladly, Madam
President.
THE PRESIDENT: Go ahead,
Senator.
SENATOR SALAND: Thank you, Madam
1132
President. And if that burden of proof is now
shifted, the burden of proof has now shifted
to the mother, and it is now her
responsibility to go forward and show why
there is no neglect in this case. And if you
look at that section of the law, that is
Section 1046, which is the section that deals
with evidence, and if you look at Section
1051, which is the next section of the bill,
that is the dispositional section and it deals
with what occurs upon disposition. And what
that section concludes with is, and I will
read in part -
SENATOR DOLLINGER: Are you
reading the bill? Excuse me, Madam President.
SENATOR SALAND: Yes, I am
looking at lines 47 through 53 on page four of
the bill, and it reads in part, "Such that if
the child shall establish a rebuttable
presumption that the release of the infant to
the parent presents an imminent danger to the
child's life or health." A rebuttable
presumption. Again, at the dispositional
hearing.
Now that burden of establishing an
1133
imminent danger to the child's life or health
certainly I think speaks for itself and what
you now find yourself in a situation under the
dispositional portion is you had a prima facie
case which could be rebutted by the mother in
a hearing. No summarily coming in the
hospital, removing the child and saying you
shall never see this child again. The same
process that controls in any other neglect or
abuse hearing, Family Court hearing, judge
presiding, evidence taken and disposition.
Upon disposition there has to be a finding
that the release would present an imminent
danger to the child's life or health. So the
mother, I would think would have the ability
to overcome that finding or that presumption,
excuse me, by showing that she had the ability
to supervise and plan for the well being of
that child. If she couldn't it would fail as
it would in any other situation presenting
itself to the court as a neglect dispositional
hearing.
So I would suggest to you that you
have taken some liberties, perhaps
inadvertently, with what this law actually
1134
provides and I think there is nobody who is
being denied due process and nobody who is
having their child removed without the
opportunity to be heard. What we have done is
we have modified the standard to say first and
foremost that the most vulnerable, contrary to
what we heard earlier from Senator Waldon, the
most vulnerable player in this whole mosaic is
the child, and we think that we have to take
extra special precautions where there is a
positive toxicology to give the child the
benefit of the doubt. Not to remove the
mother's right to keep the child, but just to
put an added layer of protection in the best
interest of the child.
SENATOR DOLLINGER: Madam
President, if I could just address Senator
Saland's question via response, the way I read
the bill, what it says is, if you have a pos
tox report you establish a rebuttable
presumption that the release of the infant to
the parent presents an imminent danger to the
child's life or health. Imminent. That the
mere fact that they test positive means that
that child is in imminent danger and therefore
1135
the State can take the child away from -- has
the ability to take the child away.
I understand that this bill creates
a rebuttable presumption and that there would
be a hearing in which that presumption could
be rebutted. I would just suggest, what is
the evidence that rebuts that finding?
Maybe I should even ask Senator
Saland the question. What evidence could be
permitted, through you Madam President,
Senator Saland will yield?
THE PRESIDENT: Senator Saland,
do you yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Dollinger.
SENATOR DOLLINGER: What evidence
can be used by a mother who has a positive
toxicology report to rebut the allegation that
that fact alone is imminent evidence of danger
do the child?
SENATOR SALAND: I would think
that among the things that that mother could
present in the course of a hearing would be by
1136
way of illustration; A, I am currently in
treatment, B, I have located an alternative
caretaker, C, I am planning for the child's
future, D, the some total of all these things
show on my part that I have an on going and
permanent interest in the well-being of my
child and I am planning for his or her future
and this conducted on my part that brought me
before the court by reason of my being
involved in illegal drugs is something which I
am currently doing my best to show was an
aberration and I am going to spend my life
being devoted to my child. I think any or all
of those things in concert would be enough for
the mother to go forward.
SENATOR DOLLINGER: Okay. Madam
President, I concur, and I want to thank
Senator Saland. You are absolutely correct.
I think that is the evidence that you would
put forward.
I would simply suggest to all my
colleagues though that if this bill passes, if
49 percent of the evidence shows all those
facts that Senator Saland suggests, 49 percent
of the weight of the evidence shows all those
1137
facts, your child will still be taken away
from you because there will be a presumption
that the positive toxicology report creates an
imminent danger to the child's life and
health. Forget all what Senator Saland said.
That may be persuasive, but the burden of
proof is now going to be put on a mother, a
mother to defend her interest in her child.
I would just suggest to you that as
well meaning as this attempt is, and I
appreciate its well meaning nature, as
important as it is that we deal with the
problem of women who abuse drugs during the
period of their pregnancy, I would just
suggest that before this government flips the
burden of proof in these proceeding, and quite
frankly as I sit here talking about it I
become more convinced that I should vote no
than before, but before we flip the burden of
proof, before we put a women who is going
through drug problems in a position where she
has to prove to the state by a preponderance
of the evidence that there is not imminent
risk of danger to her child, before we do
that, we should require something more than
1138
simply a positive toxicology report because
otherwise every woman in this State who is
addicted to drugs, every time she is going to
become pregnant she is going to have to
consider some terrible, terrible, terrible
choices. And unfortunately we may take the
most desperate women and make them even more
desperate by putting this in place.
Senator Skelos, I applaud what you
are trying to do. I think this the wrong way
to do it and I think this could unfortunately
take the very people you are tying to help and
put them in a position where they don't go to
treatment, they don't get the right prenatal
care, and their child that we're all concerned
about will actually end up worse off trying to
deal with not only the consequences of their
mother's drug about, but without their mother
or their father at their side.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President.
Similar to Senator Dollinger, I
voted for this legislation last year and was
very impressed to hear some of the questioning
1139
that has gone on this afternoon, questions
from Senators Oppenheimer, Sampson and Duane,
Senators Waldon, Montgomery and Senator
Schneiderman, who I think raised some issues
that challenged my view as I voted last year
and I kept hearing an answer from Senator
Skelos that I heard last year and an answer
that I thought was one that was very strong,
very sincere and very hard to counter. And
that was that if there was any mistake or if
there was any err in the legislation that he
wanted to err in favor of the child, that the
child was the most vulnerable issue in these
types of hearings.
I think that the questioning has
very much been misunderstood. I think there
were at times attempts to make it appear that
somebody here is not interested in the welfare
of the child and that these Senators who came
forward with some information in this
discussion were actually doing it to in any
way deny the newborns that we aim to protect
the apt treatment that they so rightly need to
receive.
I think we all in this chamber
1140
would concede that anybody who tests positive
in this kind of situation would clearly be, if
not addicted, suffering from some judgment
that certainly was not in the best interest of
the fetus this close to birth. And to test
positive would be certainly something that
would raise an eyebrow in a serious way as to
the ability of the mother or whomever is in
the home to properly care for the child.
However as Senator Skelos would
certainly concede, he never was really asking
that we immediately take the child away from
the mother. His legislation speaks to the
issue of the actual hearing that would
determine whether or not there would be a
removal of the child.
And it is really in that sense that
I think I am persuaded by some of the issues
that were raised earlier. Senator Sampson
asked the question about the arbitrariness of
conducting a test, a test at the time of birth
based on the opinion of a doctor that there
should be a toxicology study to determine
whether or not the newborn tests positive for
drugs. And in that respect it would seem to
1141
me that since we take a test already
automatically that tells us a lot of things
about the infant including whether or not they
test positive for HIV, that perhaps a solution
that we need to consider is that we add the
pharmacological study for toxicity to all of
the tests that are taken by newborns which
would relieve the question that Senator
Sampson is raising.
Senator Duane mentioned that
actually it was the existence of all
situations in the home, not just the status of
the mother that would really determine at the
hearing whether or not it would be proper for
the state to remove the newborn.
Senator Montgomery raised the issue
of alcohol. Certainly a contributor to the
violence in the home and child abuse when it
is more frequently found in the system of
mothers or in the test for newborns. And
Senator Schneiderman raised the issue of
tobacco. Well, these don't exist in this
legislation.
So therefore what we have is a
piece of legislation that certainly addresses
1142
an issue, but is somewhat narrow in its
perspective of how much we are going to
actuality try to protect newborns from abuse.
So I raise to my colleagues whether or not we
are going to really try to find some workable,
sensible, achievable remedies for what is a
very serious this problem.
It is correct that Senator Skelos
points out that there is a higher instance of
violence against infants when there is a test
of -- drugs found in a test conducted on
newborns. But the fact is that we heard
statistics presented by other Senators here
that these are some of the many areas that are
indicators for what could be certainly a
foreboding situation for young people.
Senator Dollinger raised the issue
of the 1994 Supreme Court case of Sheriff v
Encore. And also raised the issue that in
certain situations if the mother were under
the care of a physician already that at that
point it might not be a good idea to take the
mother off the drugs right before the fetus is
born because it could actually damage the
health of the newborn. If that's the case
1143
this could become some of the evidence that
Senator Saland was referring to that would be
presented as a response after a presumption
was made at a hearing, a burden of proof
presumption. And if that's the case, since
the consultation with the physician came
before the actual birth, the facts is that
maybe we shouldn't be making a burden of proof
switch if we have evidence that there are
situations where the mother is put in a
position of having to remain on substances to
actually protect the child. It sounds a
little bizarre, but medically it seems to be
substantiated by what Senator Dollinger
offered to us as reports from the California
Medical Society and other places.
And so really after hearing these
types of questions, I have come to the
conclusion that there has to be a better way
to write this bill. That what I was willing
to accept last year and what Senator Skelos
was willing to accept in terms of the
legislation has been significantly challenged,
not in a shrill way, not by anybody pedaling a
bunch of simplistic exaggerations, but by some
1144
real comprehensive information that was
offered to us such as in the case of when
Senator Schneiderman raised the fact that
those who would be afflicted would not be
likely to receive medical care because if they
are addicted to drugs and they will do
anything to stay on the drugs, as was
suggested by Senator Marcellino, then it is
likely they would stay away from the health
care centers because they know they would
probably be subjected to a test that would
make them lose their newborn.
So I think that when we take a look
at this whole situation we would be well
advised to take Senator Dollinger's advise and
conduct hearings on this legislation because I
would suggest that it is not at this point
comprehensive enough, and in some ways even
far reaching enough to really satisfy the
needs of the residents of this state.
And just my final comment is that I
really benefited from this discussion today
and I don't think that there was any attempt
to in any way make excuses or in any way try
to make the conduct of those who are engaging
1145
in the use of substances during the critical
time of their lives when they are about to
give birth in any way, it does not excuse
that, it just simply tries to support the
effort that will inure to the benefit of
newborns to try to preserve their lives in the
first place, to give them the decent health
care that they would need and to also try to
put them in a situation where they would also
be able to grow and not hopefully wind up in
foster care or festering away in group homes
as we have made so many others who were taken
away from their mothers endure.
THE PRESIDENT: Senator Hevesi.
SENATOR HEVESI: Madam President,
on the bill.
I have a great respect for my
colleagues who have articulated some serious
concerns about the legislation proposed today
and I too share a number of those concerns,
including the concerns about testing of false
positive and our commitment to funding
programs which provide drug treatment. But it
occurs to me, Madam President, that we are
called upon every day in this institution
1146
dissect legislation and perform an analysis of
the potential policy implications of what
comes before us and to assess the efficacy of
that legislation, to weigh the good against
the bad and to determine whether the negative
implications of a piece of legislation out
weight the positive.
And it is my belief that in terms
of this piece of legislation that the negative
implications pale in comparison to the
potentially negative implications of not
passing this piece of legislation.
It is my belief, Madam President,
that a child that is born testing positive for
narcotics when we know that the mother
ingested those narcotics during her pregnancy,
that that child has been neglected, that child
has been abused. That child was not only
placed in jeopardy in terms of its life, but
potentially being born premature by having a
low birth rate, by compromising the cognitive
and developmental abilities of that child as a
consequence of the narcotics in that child's
system, but in addition and of equal
importance, we know that a mother who has a
1147
dependency on narcotics of some sort is
likely, because of that addiction, because of
that dependency, not to be paying one hundred
percent attention to the care of the child and
could possibly, because of some physiological,
emotional, psychological impairment not
provide the best care possible for that child.
And so the environment that the child would be
reared in is compromised, is dangerous. And
Madam President, if a child is born with drugs
in his or her system I want that child removed
from the family immediately.
Are we shifting the burden in this
case? Yes, we are shifting the burden. But I
believe that this situation calls for a
shifting of the burden. There are times when
we need to protect the interests of children.
This is one of those times. And although this
is not a perfect piece of legislation, and I
would suggest to the sponsor considering
amending the legislation to take into
consideration some of the concerns that have
been raised, we would be failing as a
governmental body if we did not seize upon the
opportunity to prevent the potential for a
1148
child to be born -- not to be born, to die
prenatally or to be born seriously impaired,
or as a consequence of somebody's drug use in
the home pursuant to knowing that that child
had drugs in his system because the mother
took drugs while pregnant that we knew that
and didn't do anything about it I believe that
that would be an abdication of our
responsibility and therefore I support this
legislation.
THE PRESIDENT: Senator Marchi.
SENATOR MARCHI: Madam President,
I believe that each and every member in this
chamber has profited by the contributions that
have been made and the insights that have been
advanced on this very important question.
When we speak of a rebuttal
presumption, we speak of a presumption that
can be reputed, not on the grounds that
toxicity was not in fact present, but it does
open the door and encourage a manifestation
and a determination to advance in the conduct
of the respondent at the hearing that this
will -- that the full consciousness of the
gravity of the situation and a determination
1149
to protect that offspring.
So the bottom line I think weighs
in favor of taking this step because the
hearing is provided based on a rebuttable -
and a rebuttable presumption is one that can
be rebutted, otherwise it does not make sense.
We are not going to object on the grounds that
it never took place and it was an erroneous
finding. So the question really goes to what
kind of conduct do we engender and the feeling
that may be engendered by the conducted of the
hearing offering ample opportunity as was so
well demonstrated I believe in indicating that
there is a firm determination to protect that
child. And I believe this would be a very
constructive step forward and other
suggestions have been made about enriching the
process by which that child can be protected
in the future. Those are valid observations
that maybe objectives legislatively. And also
perhaps other kindred surreptitious toxic
influences that maybe brought to bear. But on
balance I believe that we have a fair
statement attempting to elicit a determination
on the part of someone that suddenly faced
1150
with a rebuttable presumption to rebute by an
indication and manifestation of intent on how
to address this very serious responsibility.
So I do not term that as pejorative
in characterizing this situation generally,
but an encouragement to seek a better solution
to the frightful prospects that that offspring
may face.
So I would encourage a yes vote on
this bill.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 7. This
act shall take effect immediately.
THE PRESIDENT: Senator Waldon.
Call the roll first.
(The Secretary called the roll.)
THE PRESIDENT: Senator Waldon,
to explain your vote.
SENATOR WALDON: Thank you, very
much, Madam President. I will try to be
brief.
THE PRESIDENT: Thank you.
SENATOR WALDON: Last year I
voted up on this proposal and today the debate
1151
was lively, it was substantive, it was moving.
We did not address the mother from Scarsdale
who has a private gynecologist. I believe
this proposal applies mostly to the poor
Black, Latino mother in a health clinic
somewhere.
We didn't deal with the fetal
rights of the child outweighing the rights of
the mother. We didn't deal with what is truly
fair in terms of how we apply laws to this
particular situation. The reason that I'm
going to vote no today is that we currently
have laws on the books of the State of New
York which allow when a positive test,
toxicity test occurs in conjunction with other
evidence to remove the child.
The gathering of the other evidence
requires an investigation by social services.
Social services budgets have been cut, which
precludes a possibility of an investigation of
follow-up. The law is on the books now. So
what this proposal is an end run around the
responsibility of the state to properly and
appropriately do its job.
So what we out to do is to give the
1152
money to DSS so that the investigation and
follow up could be conducted and then
rightfully so, other than a prima facie proof
on the toxicity, rightfully so the child could
be removed from the family.
So what we are dealing with in my
opinion, with all due respect to Senator
Skelos and this is not an accusation against
you, Dean, please don't misunderstand what I
am saying, but this is a canard, a gross
canard. This is blue smoke and mirrors at its
best. Law on the books right now allows us
with other evidence to do exactly what this is
saying we do with just prima facie proof. We
should all vote no. This is a lie that we are
conducting to ourselves.
Thank you, very much, Madam
President.
THE PRESIDENT: Senator, you will
be recorded as voting in the negative.
Senator Duane, next.
SENATOR DUANE: Thank you, very
much, Madam President. If I may explain my
vote, I first want to say that I applaud what
is happening in society and even in this body
1153
that our concern for the well being of
children, I think it shows a great advancement
in our society. And well intentioned, and I
mean that from the bottom of my heart thought
that this legislation is, I am still -- I
continue to be struck that really the horse is
out of the barn already in that when the
testing occurs the substance abuse has already
occurred and damage may or may not have been
done to the fetus at that point any way and
then of course there are the issues about the
future. And it is a philosophical difference
from my point of view that I don't look at the
terrible problem of substance abuse in society
only as a criminal justice issue but as in my
mind, more importantly a public health problem
and one that really deserves more concerted
effort in research and treatment so that we
can deal with this terrible scourge in our
society.
I also think it is important to
noted that it is not about -- it is not that
the baby is addicted to drugs, it is that
potentially the mother is addicted to drugs.
All fetal -- I'm sorry, newborn testing is
1154
about testing the mother. It is totally about
testing the mother and we leave the other part
of what it is that people talk about in
families here today, which is the father that
it in the family and it really does nothing to
protect against potential for problems with
either the biological parent or father or the
custodial parent, whoever the father or the
other parent, no matter what gender they may
be who is in that family situation as well.
And for that reason I am -- those reason, I am
voting no.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
if I could, this has been an excellent debate
and I am not looking to cut anybody short, but
we do have a two minute rule, which as the
session goes on and perhaps the conversations
get a little bit longer, we should start
abiding by the two minute rule.
THE PRESIDENT: Thank you,
Senator.
Senator Montgomery.
SENATOR MONTGOMERY: Madam
President, to explain my vote I just want to
1155
correct one thing that was said regarding Hale
House. It is my understanding, I have spoken
added length, I have visited Hale House. And
I am really very good friends with Dr.
Lorraine Hale, and one of the things that she
emphasizes always is that even while the
mother is in treatment that mother is allowed
to visited her child while that child is being
cared for at Hale House.
There is every attempt to maintain
a relationship between that mother and child
even though the mother may not be -- may be
unable to take care of that child while she is
in treatment.
The second thing that I want to say
is that despite the fact that we talk about
this is as being a measure to protect the
babies, and certainly I can well imagine that
the interest of Senator Skelos and my
colleagues who are voting yes on this is bill
is that they want to protect the babies. But
I just want to remind you that the central
theme in this legislation is not a measure
that ultimately would lead to creating a hole
family, helping the parent, helping that
1156
parent bond with that baby, helping that
parent eventually get over that addiction.
The central theme is that the infant, the
newborn testing positive is prima facie
evidence for establishing a possible criminal
activity related to use of illegal drugs.
That is what it says in the legislation,
that's what it says in the justification,
that's what it says in the memo supporting the
bill. And eventually I want to remind you
that this could lead to incarceration.
So it seems like a stretch but I
warn my colleagues that it is not so far
fetched. And the one positive thing in our
discussion today is that Senator Balboni, I
believe I heard him say that it was never
debated in his house in the Assembly. So I am
thankful for that. I hope it never will.
But I am voting no today in this
house. Thank you.
THE PRESIDENT: Senator
Montgomery, you will be recorded as voting in
the negative. The Secretary will announce the
results.
THE SECRETARY: Those recorded in
1157
the negative on Calendar Number 208 are
Senators Dollinger, Duane, Gonzalez,
Markowitz, Montgomery, Oppenheimer, Paterson,
Rosado, Sampson, Santiago, Schneiderman,
Seabrook, Smith, Stavisky and Waldon.
Ayes 45, nays 15.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
212, by Senator Saland, Senate Print 2722, an
act to amend the Family Court Act, in relation
to evidence.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President.
Would the sponsor yield to a couple
of questions?
THE PRESIDENT: Senator Saland,
do you yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Duane, with a question.
SENATOR DUANE: Thank you. I am
concerned about this, and I first would like
1158
to ask the question, through you Madam
President, of the sponsor whether or not you
believe that drug treatment and person's
willingness to be in drug treatment is a good
and positive step?
SENATOR SALAND: Certainly if you
look at the existing law you will see that the
law currently recognizes that that certainly
is a very significant consideration in how
these types of neglect cases should be
disposed of. What this bill attempts to do is
to avoid the situation in which by way of
using as an affirmative defense your
voluntarily participating in a drug rehab
program and then dropping out of the program
or not completing the program, effectively
having shortcutted the proceeding that brought
you before the court in the first place then
requiring an order for the proceeding to in
effect have its day in court for the
proceeding to be reinitiated. All this is
saying is we're taking the existing law and we
are saying instead of it being a consideration
as it is now as an affirmative defense, it is
the very same consideration, only as part of
1159
the dispositional hearing. No change other
than -- let me rephrase that. Recognizing
that being voluntarily in a drug rehab program
certainly is something that augers well for an
outcome, speaks well of the parent, but
basically provides a device for greater
oversight by the court to ensure that that
parent will continue in the program and
successfully complete it without the need to
go back to court two or three or four times.
SENATOR DUANE: Madam President,
follow-up question if I may if the sponsor if
the sponsor will continue to yield?
THE PRESIDENT: Senator Saland,
do you continue to yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Duane, with a question.
SENATOR DUANE: I am respectfully
disagreeing with what it is that is happening
with this. I actually believe that this
actually ratchets down from being a positive
thing to a much more neutral consideration for
the court and I am frankly concerned about
1160
that in that I do believe, and I guess we
agree, that a person being enrolled in a drug
treatment program is a good thing and shows,
you know, a good kind of initiative that to in
any way diminish what is highly problematic,
particularly in light of the discussion which
we just had on the past, on the immediate past
bill which we voted on.
SENATOR SALAND: I say this
respectfully, Senator. You are free to
believe as you would choose to believe, but
certainly this bill makes more relevant the
voluntary participation of a parent in a drug
rehab program. It has been removed from fact
finding and now become a consideration in
disposition. And again, it can not be
thwarted by a parent who would, for whatever
reason, go in and out of drug rehab
necessitating multiple applications to a
court. This recognizes the importance of a
parent participating in a drug rehab program
and basically continues the jurisdiction of
the court without burdening the court with
multiple applications.
You may view it as you choose and I
1161
won't take issue with you. Let me rephrase
that. I will take issue with you 180 degrees
apart from where you stand, but I certainly
won't denigrate your position.
SENATOR DUANE: If I may just,
through you respectfully, Madam President,
just to follow up, I agree that potentially,
potentially it could be as positive as exists
in the law now, but also potentially it could
be neutral or in fact potentially negative,
though I think we would all hope that that
wouldn't be the case. And that is really what
my -- it just -- it changes something that I
don't believe should be changed and beyond
that I think it also runs the risk of
disincetivizing of a mother particularly from
being in a treatment program for fear that it
might not make any difference as to whether or
not they would be able to retain custody of
their child. Is that correct?
SENATOR SALAND: I would
respectfully, Madam President, ask if that was
a question would it please be repeated?
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Is it not true
1162
that with this legislation yes potentially a
mom being enrolled in a drug treatment program
could potentially then be considered a good
thing, but it also could be considered not at
all, that's at the judge's discretion, or it
could potentially, and I think that we all
hope that this isn't the case, be used in a
negative manner if there was some kind of
glitch in the treatment as opposed to the way
it is now where, and I don't -- and because I
don't think it should be changed, I think it
should be considered a positive thing, is it
not that this potentially makes it a neutral
or in worst case scenario, negative situation?
SENATOR SALAND: Madam President,
through you, what this effectively does is it
precludes the abuse of a voluntarily enrolling
in a drug rehab as in effect preemptively
terminating the ability of the court to deal
with the family because that affirmative
defense has effectively cut the cord off at
that point. What this does, it enables,
again, by putting it in the dispositional
section, it enables the court to have some
continuing control over the situation,
1163
hopefully to work with the family and
hopefully to bring the family into some type
of a positive conclusion as distinguished
from, again, multiple applications being made
with little or no intervention and in effect a
continuum of what almost becomes a game.
SENATOR DUANE: Thank you, Madam
President, on the bill, I just -- this bill
makes me uneasy because it makes, from my
point of view, drug treatment a factor as
opposed to an affirmative action. And I am
also concerned that it does take a step back
from an incentive that a mom might have to
stay in drug treatment based on the
possibility that, oh, you know, what's the
use, I'm going to lose my child any way. And
I think that the present law, which has being
in drug treatment as an affirmative thing and
something which the court looks kindly on,
which I do too is something that we should not
be changing.
Thank you, Madam President.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
1164
act shall take effect in 120 days.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 58, nays 2.
Senators Duane and Montgomery recorded in the
negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
213, by Senator Saland, Senate Print 2724, an
act to amend the Family Court Act.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President.
THE PRESIDENT: Your welcome,
Senator.
SENATOR DUANE: Since this seems
to be our day now, I was wondering if Senator
Saland would yield to a couple of questions?
THE PRESIDENT: Senator Saland,
do you yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Duane.
1165
SENATOR DUANE: I will try not to
make it our evening. I am concerned about
this bill. It seems that it assumes a person
who is found guilty of having abused a child
does not like all children as a class as
opposed to the specific instance in which
abuse may have been found.
And I am wondering if what the
intent is to sort of make children a protected
category that a person, if you will, would
have a bias against and that is why we're
concerned about the employment of such a
person among children?
SENATOR SALAND: I would say that
this bill certainly and clearly represents an
effort to acknowledge that a person who has
been found guilty of having committed abuse,
now we are not talking about neglect, we are
talking about abuse, certainly a far more
severe form of maltreatment, and we're saying
that where that person has substantial conduct
with children the employer of that person who
does have substantial contact with children
should be notified. It is certainly a
relevant consideration. I would not, were I
1166
an employer, I would not want to be placed in
a situation in which I had someone who had
been established in a court of law to have
engaged in abuse of child working in close
proximity with children. That is an
invitation to disaster.
SENATOR DUANE: Madam President,
if I may ask another question through you, I
want to preface what I am saying. First I
believe that -- and I do not know whether the
science is there yet, but I believe that
neglect is virtually as bad as abuse, even
though abuse is a pro-active thing, neglect is
also a terrible thing, although it is of
course a harder to prove neglect, you know,
than affirmative abuse. And I think that is
something that perhaps as a body but that
science needs to look at in a bigger way
because I think as much damage is done to
children threw neglect as through abuse,
though it never seems to compare, but in fact
I think it is on the well-being of a child.
But I believe, and I am wondering
if we could -- if you might cede some of this
to me, that abuse usually deals with a deeper
1167
motivating factor having to do with that
specific situation, particularly if it is a
family situation that the abusive parent or
adult finds themselves in with a child having
to predominantly with the dynamics of the
adult, of course, but that it is not about -
it is not easily a -- it is a leap, I believe,
and I am wondering if you agree, to transfer
that to all children and that adults
interaction and with all children or even
children in a, you know, in a school or a
group or whatever.
SENATOR SALAND: Senator, I would
call your attention to Section 1012 of the
Family Court Act and the definition of an
abused child, and when you look at the type of
behavior that is by definition required before
you can establish abuse it includes things
such as inflicts or allows to be inflicted
upon such child physical injury by other than
accidental means which causes or creates a
substantial risk of death or serious or
protracted disfigurement. I am reading in
part from one of the subsections. Creates or
allows to be created substantial risk of
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physical injury to such child that would
likely to cause death or serious protracted
disfigurement or protracted impairment of
physical or emotion health, commits or allows
to be committed a sex offense against such
child. Goes on to define certain sections of
the penal law. Those are, I would think,
pretty egregious acts committed against a
child by a person in a position of great
responsibility and authority, almost a
fiduciary, a trustee. Somebody who is
responsible, particularly for the needs of
that child, a member of his or her household.
And it is not difficult for me to
make the leap from the acts committed against
someone who should be near and dear to you,
not a stranger, not somebody who is one who
may have for some reason or other incited your
ire in a parking lot in a commercial endeavor
or whatever, but a child in your own
household, a child that you supposedly love
and care for. You have committed these vile
and heinous acts. I don't find it very
difficult to say that if that person is a
danger to his or her own child then it is
1169
critical that people who -- such as that, if
they are going to be placed in positions where
they have substantial and regular contact with
children that the appropriate persons, the
employer, be notified. Because if that person
could engage in that type of gross misconduct
with his own children the potential is there
for him or her to engage in similar conduct
with other children.
And I guess it goes to the heart of
some of the debates we have conducted today
about really, if you are going to err, on
whose side do you err.
We do not require anything more
than notification. And what we're saying is
that it is in the best interests -- this is
bill is in effect making a policy statement,
that it is in the best interest of children
that there be this notice mechanism to ensure
that in effect a potential fox is not put into
a potential hen house.
SENATOR DUANE: Madam President,
if I may follow up with a question through
you.
THE PRESIDENT: Senator Saland,
1170
do you continue to yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Duane, with an additional question.
SENATOR DUANE: I find the whole
discussion of child abuse is an incredibly
difficult and horrendous one for us to be
addressing. I am concerned because I don't
believe that abuse in a household necessarily
translates to abuse in the workplace. Just as
I don't -- and I know it is not exactly the
same thing, but has to do with say a husband
or man who has been accused or convicted of
spousal abuse then being able to have a job
where they would have supervisory authority or
control through whether it is through law
enforcement or some other way over women.
I don't think that the abuse, you
know, of a spouse and, again it is not exactly
the same thing, but necessarily then
translates into that this man would be a
danger to be around all women, particularly if
they were in some kind of a authority role or
controlling role over the women.
1171
So because I don't that's how it
works. I don't that in the vast majority of
cases that is how child abuse cases come about
or what their case is or what they lead to in
a larger world outside of the household. I
guess I don't necessarily need a response to
that. I'm sorry I just went on, but that's my
-- but the other question I have is, I just
wondering if there are statistics which
point -
THE PRESIDENT: Senator Saland,
do continue to yield for one more question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Senator Duane,
you may proceed.
SENATOR DUANE: If there are
statistics or examples about this having had
been a problem that someone who had how had
been convicted of child abuse then somehow was
guilty of that in an employment setting having
to do with children if that exists? And if
you could just point me there?
SENATOR SALAND: The genesis of
this bill comes out of a Family Court case in
1172
Westchester County.
SENATOR DUANE: Clarification,
one case, Senator?
SENATOR SALAND: This is what
brought it to our attention. As I am sure you
can appreciate, there maybe unreported cases.
And it has been only recently that the light
in effect has been -- the sun has shown on
Family Court. They to date they have been
fairly closed proceedings. So if you don't
find out about in a reported case, the
likelihood of your finding out about it unless
somehow or other the media brings it into the
public realm, you are not going to know about
it.
SENATOR DUANE: On the bill,
Madam President, I just -- I am again very,
very well intentioned though I think this
legislation is -- -- I am skeptical that this
is -- that the responses to this is to the
concern merits this kind of legislative
response.
Thank you, Madam President.
THE PRESIDENT: Read last
section.
1173
THE SECRETARY: Section 2. This
acts shall take effect on the 90th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 59. Nays 1.
Senator Duane recorded in the
negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
233, by Senator Marcellino, Senate Print 831,
an act to amend the Parks, Recreation and
Historic Preservation Law.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act should take effect on the 120th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator Duane to
explain your vote.
SENATOR DUANE: Madam President,
I am voting aye on this, but I am curious to
why we are only mandating state parks fly the
POW flag and why we don't then and I think we
1174
should then fly it here at the Capitol.
And just as an aside think because
I don't really know, I am too new exactly who
to address it to, the State flag on top of the
Capitol is a mess and we really should put a
better flag there. It is torn, it just is -
its a mess. So while we're on the topic of
flags, I know someone will enlighten me as to
how to take care of that. We need to either
sew that flag up or put a new one on top of
the Capitol.
Thank you, Madam President.
THE PRESIDENT: Senator Duane,
you will be recorded as voting in the
affirmative.
The Secretary will announce the
results.
THE SECRETARY: Ayes 60.
THE PRESIDENT: Senator McGee.
SENATOR McGEE: Madam President, would you
please return us to the reports of the
standing committees?
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Senator
1175
Marcellino, from the Committee on
Environmental Conservation reports:
Senate Print 3214, by Senator
Leibell, an act to amend the Environmental
Conservation Law.
Senator Leibell, from the Committee
on Civil Service and Pensions, reports:
Senate Print 1494, by Senator
Spano, an act to amend Chapter 677 of the Laws
of 1977.
Both bills directly for third
reading.
THE PRESIDENT: All bills,
without objection are directed to third
reading.
Senator McGee.
SENATOR McGEE: Madam President, is
there any housekeeping at the desk?
THE PRESIDENT: No there is not,
Senator.
SENATOR McGEE: There being no
further business I move we adjourn until
Wednesday, March 17, St. Patrick's Day, at
11:00 a.m.
THE PRESIDENT: On motion from
1176
Senator McGee the Senate now stands adjourned
until Wednesday, March 17th, St. Patrick's
Day, at 11:00 a.m.
(Whereupon, at 5:31 p.m., the
Senate adjourned.)