Bill Text: NY A02416 | 2023-2024 | General Assembly | Introduced
Bill Title: Allows previous investigations in which the subject was indicated for child abuse or maltreatment using a credible evidence standard and in which the subject of the report is a victim of domestic violence and the sole basis for such report is that such subject failed to provide adequate guardianship due to engaging in acts of domestic violence to be re-examined using a fair preponderance of the evidence standard.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced) 2024-01-03 - referred to children and families [A02416 Detail]
Download: New_York-2023-A02416-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 2416 2023-2024 Regular Sessions IN ASSEMBLY January 26, 2023 ___________ Introduced by M. of A. BYRNES, MORINELLO -- read once and referred to the Committee on Children and Families AN ACT to amend the social services law and the family court act, in relation to allowing certain previous investigations to be re-examined using a fair preponderance of the evidence standard The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 6 and 7 of section 412 of the social services 2 law, as amended by section 1 of part R of chapter 56 of the laws of 3 2020, are amended to read as follows: 4 6. An "unfounded report" means any report made pursuant to this title 5 unless an investigation: (i) commenced on or before December thirty- 6 first, two thousand twenty-one determines that some credible evidence of 7 the alleged abuse or maltreatment exists; or (ii) commenced on or after 8 January first, two thousand twenty-two determines that a fair preponder- 9 ance of the evidence of the alleged abuse or maltreatment exists; or 10 (iii) commenced at any time in which the subject of the report is a 11 victim of domestic violence and the sole basis for such report is that 12 such subject failed to provide adequate guardianship due to engaging in 13 acts of domestic violence determines that a fair preponderance of the 14 evidence of the alleged abuse or maltreatment exists; 15 7. An "indicated report" means a report made pursuant to this title if 16 an investigation: (i) commenced on or before December thirty-first, two 17 thousand twenty-one determines that some credible evidence of the 18 alleged abuse or maltreatment exists; or (ii) commenced on or after 19 January first, two thousand twenty-two determines that a fair preponder- 20 ance of the evidence of the alleged abuse or maltreatment exists; or 21 (iii) commenced at any time in which the subject of the report is a 22 victim of domestic violence and the sole basis for such report is that 23 such subject failed to provide adequate guardianship due to engaging in EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03972-01-3A. 2416 2 1 acts of domestic violence determines that a fair preponderance of the 2 evidence of the alleged abuse or maltreatment exists; 3 § 2. The opening paragraph of paragraph (a) of subdivision 5 of 4 section 422 of the social services law, as amended by section 3 of part 5 R of chapter 56 of the laws of 2020, is amended to read as follows: 6 Unless an investigation of a report conducted pursuant to this title 7 that is commenced on or before December thirty-first, two thousand twen- 8 ty-one determines that there is some credible evidence of the alleged 9 abuse or maltreatment or unless an investigation of a report conducted 10 pursuant to this title that is commenced on or after January first, two 11 thousand twenty-two determines that there is a fair preponderance of the 12 evidence that the alleged abuse or maltreatment occurred or unless an 13 investigation of a report conducted pursuant to this title that is 14 commenced at any time in which the subject of the report is a victim of 15 domestic violence and the sole basis for such report is that such 16 subject failed to provide adequate guardianship due to engaging in acts 17 of domestic violence determines that a fair preponderance of the 18 evidence of the alleged abuse or maltreatment occurred, all information 19 identifying the subjects of the report and other persons named in the 20 report shall be legally sealed forthwith by the central register and any 21 local child protective services which investigated the report. Such 22 unfounded reports may only be unsealed and made available: 23 § 3. Paragraph (c) of subdivision 5 of section 422 of the social 24 services law, as amended by section 4 of part R of chapter 56 of the 25 laws of 2020, is amended to read as follows: 26 (c) Notwithstanding any other provision of law, the office of children 27 and family services may, in its discretion, grant a request to expunge 28 an unfounded report where: (i) the source of the report was convicted of 29 a violation of subdivision three of section 240.55 of the penal law in 30 regard to such report; or (ii) the subject of the report presents clear 31 and convincing evidence that affirmatively refutes the allegation of 32 abuse or maltreatment; provided however, that the absence of a fair 33 preponderance of the evidence supporting the allegation of abuse or 34 maltreatment shall not be the sole basis to expunge the report, except 35 that any report in which the subject of such report is a victim of 36 domestic violence and the sole basis for such report is that such 37 subject failed to provide adequate guardianship due to engaging in acts 38 of domestic violence may be expunged where the absence of a fair prepon- 39 derance of the evidence supporting the allegation of abuse or maltreat- 40 ment is the sole basis to expunge such report. Nothing in this para- 41 graph shall require the office of children and family services to hold 42 an administrative hearing in deciding whether to expunge a report. Such 43 office shall make its determination upon reviewing the written evidence 44 submitted by the subject of the report and any records or information 45 obtained from the state or local agency which investigated the allega- 46 tions of abuse or maltreatment. 47 § 4. Section 651-a of the family court act, as amended by section 10 48 of part R of chapter 56 of the laws of 2020, is amended to read as 49 follows: 50 § 651-a. Reports of child abuse and maltreatment; admissibility. In 51 any proceeding brought pursuant to this section to determine the custody 52 or visitation of minors, a report made to the statewide central register 53 of child abuse and maltreatment, pursuant to title six of article six of 54 the social services law, or a portion thereof, which is otherwise admis- 55 sible as a business record pursuant to rule forty-five hundred eighteen 56 of the civil practice law and rules shall not be admissible in evidence,A. 2416 3 1 notwithstanding such rule, unless an investigation of such report 2 conducted pursuant to title six of article six of the social services 3 law commenced on or before December thirty-first, two thousand twenty- 4 one has determined that there is some credible evidence of the alleged 5 abuse or maltreatment, or unless an investigation of such report 6 conducted pursuant to title six of article six of the social services 7 law commenced on or after January first, two thousand twenty-two deter- 8 mines that there is a fair preponderance of the evidence of the alleged 9 abuse or maltreatment, or unless an investigation of such report 10 conducted pursuant to title six of article six of the social services 11 law commenced at any time in which the subject of the report is a victim 12 of domestic violence and the sole basis for such report is that such 13 subject failed to provide adequate guardianship due to engaging in acts 14 of domestic violence determines that there is a fair preponderance of 15 the evidence of the alleged abuse or maltreatment, that the subject of 16 the report has been notified that the report is indicated. In addition, 17 if such report has been reviewed by the state commissioner of social 18 services or his designee and has been determined to be unfounded, it 19 shall not be admissible in evidence. If such report has been so reviewed 20 and has been amended to delete any finding, each such deleted finding 21 shall not be admissible. If the state commissioner of social services or 22 his designee has amended the report to add any new finding, each such 23 new finding, together with any portion of the original report not 24 deleted by the commissioner or his designee, shall be admissible if it 25 meets the other requirements of this section and is otherwise admissible 26 as a business record. If such a report, or portion thereof, is admissi- 27 ble in evidence but is uncorroborated, it shall not be sufficient to 28 make a fact finding of abuse or maltreatment in such proceeding. Any 29 other evidence tending to support the reliability of such report shall 30 be sufficient corroboration. 31 § 5. Subparagraph (i) of paragraph (a) of subdivision 8 of section 422 32 of the social services law, as amended by chapter 12 of the laws of 33 1996, is amended and a new subparagraph (vi) is added to read as 34 follows: 35 (i) At any time subsequent to the completion of the investigation but 36 in no event later than ninety days after the subject of the report is 37 notified that the report is indicated, except where the investigation 38 was completed prior to January first, two thousand twenty-four and the 39 subject of such report is a victim of domestic violence and the sole 40 basis for such report is that such subject failed to provide adequate 41 guardianship due to engaging in acts of domestic violence, and the 42 subject requests that such report be re-opened pursuant to subparagraph 43 (vi) of this paragraph, the subject may request the commissioner to 44 amend the record of the report. If the commissioner does not amend the 45 report in accordance with such request within ninety days of receiving 46 the request, the subject shall have the right to a fair hearing, held in 47 accordance with paragraph (b) of this subdivision, to determine whether 48 the record of the report in the central register should be amended on 49 the grounds that it is inaccurate or it is being maintained in a manner 50 inconsistent with this title. 51 (vi) In cases where the investigation was completed prior to January 52 first, two thousand twenty-four and it was determined at a fair hearing 53 that there was credible evidence in the record to find that the subject 54 committed an act or acts of child abuse or maltreatment, and the subject 55 of the report is a victim of domestic violence and the sole basis for 56 such report is that such subject failed to provide adequate guardianshipA. 2416 4 1 due to engaging in acts of domestic violence, the subject of such report 2 may request that such case be re-opened and re-examined using a standard 3 of a fair preponderance of the evidence in the record to find that the 4 subject committed an act or acts of child abuse or maltreatment within 5 one year of the effective date of this subparagraph. 6 § 6. Items (I) and (II) of clause (A) of subparagraph (i) and subpara- 7 graph (ii) of paragraph (e) of subdivision 1 of section 424-a of the 8 social services law, as amended by section 9 of part R of chapter 56 of 9 the laws of 2020, are amended to read as follows: 10 (I) the time for the subject of the report to request an amendment or 11 re-opening of the record of the report pursuant to subdivision eight of 12 section four hundred twenty-two has expired without any such request 13 having been made; or 14 (II) such request was made within such time and a fair hearing regard- 15 ing the request has been finally determined by the commissioner and the 16 record of the report has not been amended or re-opened to unfound the 17 report or delete the person as a subject of the report; and 18 (ii) If the subject of an indicated report of child abuse or maltreat- 19 ment has not requested an amendment or re-opening of the record of the 20 report and an inquiry is made to the office of children and family 21 services pursuant to this subdivision concerning the subject of the 22 report, such office shall, as expeditiously as possible but within no 23 more than ten working days of receipt of the inquiry, determine whether, 24 in fact, the person about whom an inquiry is made is the subject of an 25 indicated report. Upon making a determination that the person about whom 26 the inquiry is made is the subject of an indicated report of child abuse 27 and maltreatment, the office of children and family services shall imme- 28 diately send a written request to the child protective service or state 29 agency which was responsible for investigating the allegations of abuse 30 or maltreatment for all records, reports and other information main- 31 tained by the service or state agency on the subject. The service or 32 state agency shall, as expeditiously as possible but within no more than 33 twenty working days of receiving such request, forward all records, 34 reports and other information it maintains on the indicated report to 35 the office of children and family services, including a copy of any 36 petition or court order based on the allegations that were indicated. 37 Where a proceeding pursuant to article ten of the family court act is 38 pending based on the same allegations that were indicated, the office of 39 children and family services shall stay determination of whether there 40 is a fair preponderance of the evidence to support the indication until 41 the disposition of such family court proceeding. Unless such determi- 42 nation has been stayed, the office of children and family services 43 shall, within fifteen working days of receiving such records, reports 44 and other information from the child protective service or state agency, 45 review all records, reports and other information in its possession 46 concerning the subject and determine whether there is a fair preponder- 47 ance of the evidence to find that the subject had committed the act or 48 acts of child abuse or maltreatment giving rise to the indicated report. 49 § 7. This act shall take effect immediately and shall apply to all 50 reports filed in the statewide central register of child abuse and 51 maltreatment.
