Bill Text: NY S00995 | 2011-2012 | General Assembly | Introduced
Bill Title: Broadens the scope of child abuse and neglected child to include proof of a positive controlled substance toxicology report on a newborn infant; presence of such controlled substances establishes a rebuttable presumption that the release of the infant to the parent presents an imminent danger to the child's health or life.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-04 - REFERRED TO CHILDREN AND FAMILIES [S00995 Detail]
Download: New_York-2011-S00995-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 995 2011-2012 Regular Sessions I N S E N A T E (PREFILED) January 5, 2011 ___________ Introduced by Sen. KLEIN -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families AN ACT to amend the social services law and the family court act, in relation to proof of a neglected or abused child THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Legislative findings. The legislature finds and declares 2 that infants who are born drug-exposed and drug-addicted must be a 3 priority of our state's public health and child welfare systems. Ille- 4 gal drug addiction in pregnant women and corresponding fetal drug expo- 5 sure is an epidemic that has expanded in virtually geometric proportion 6 since the 1980's with the advent of cheap, smokeable free base crack 7 cocaine. 8 A large body of professional literature from the fields of pediatrics, 9 obstetrics and the social sciences has documented a multi-million dollar 10 problem whose effect on a generation of young Americans is still being 11 discovered. Unfortunately, the laws and jurisprudence of the state of 12 New York have failed to adequately and appropriately address this 13 burgeoning crisis. 14 The legislature further finds and declares that illegal drug use 15 during pregnancy creates a high degree of risk that newborns will exhib- 16 it neurobehavioral and circulatory health complications. These compli- 17 cations include neurological defects, learning disabilities, low cogni- 18 tion, physical and developmental delay, and low birth weight. 19 Moreover, other states have recognized in utero drug exposure as 20 correlative to the likelihood of further abuse or neglect during the 21 child's infancy. Such recognition has led to statutory revisions causing 22 in utero drug exposure to be presumptive evidence of child abuse or 23 neglect and thereby warranting immediate child protective services 24 intervention. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04911-01-1 S. 995 2 1 The intervention of the state into the integrity of the family unit 2 should be exercised cautiously. However, where the very life and safety 3 of the most vulnerable segment of society is in question, the inter- 4 vention of the state must be aggressive and consistent. 5 Under the current appellate case law in this state, proof of illegal 6 drug abuse during pregnancy as manifested by a positive toxicology 7 report for drugs in the child is insufficient in and of itself to 8 support a fact finding of child neglect under article 10 of the family 9 court act. 10 Current state office of children and family services policy states: 11 "Evidence that a newborn infant tests positive for a drug.....in its 12 bloodstream or urine; is born dependent on drugs or with drug withdrawal 13 symptoms....; or has been diagnosed as having a condition which may be 14 attributable to in utero exposure to drugs.....is not sufficient, in and 15 of itself, to support a determination that the child is mistreated. In 16 addition, such evidence alone is not sufficient for a social service 17 district to take protective custody of such a child." 18 As a consequence, a positive toxicology report, without additional 19 supporting evidence, may not be used to "indicate" a report of child 20 abuse or maltreatment to the State Central Register of Abuse and 21 Maltreatment. This policy creates an unacceptable risk to New York's 22 most vulnerable citizens: newborn infants. 23 At present, infants born with such a positive toxicology must, without 24 additional evidence of neglect, be discharged home without mandating 25 support, supervision or intervention - only to await the occurrence of 26 other neglect, injury or even death before protective action can be 27 taken. 28 While intending to protect children, laws that essentially require the 29 child to be injured or harmed before help is offered are fatally flawed. 30 The tragic consequences of such defective laws are needless and avoid- 31 able particularly when at the time of birth authorities are aware of an 32 immediate problem. 33 The legislature finds that more than sufficient research and scholar- 34 ship exist to find the strongest possible causation between illegal drug 35 use during pregnancy and risk to the health and welfare of a child. It 36 is therefore the intent of this legislature that proof of illegal drug 37 use during pregnancy as manifested by a positive toxicology report is, 38 in and of itself, the basis for a prima facie finding that the child is 39 a neglected child. 40 S 2. Subdivision 4-a of section 371 of the social services law, as 41 added by chapter 782 of the laws of 1971, subparagraph (B) of paragraph 42 (i) as amended by chapter 984 of the laws of 1981, is amended to read as 43 follows: 44 4-a. "Neglected child" means a child less than eighteen years of age 45 (i) whose physical, mental or emotional condition has been impaired or 46 is in imminent danger of becoming impaired as a result of the failure of 47 his OR HER parent or other person legally responsible for his OR HER 48 care to exercise a minimum degree of care 49 (A) in supplying the child with adequate food, clothing, shelter, 50 education, medical or surgical care, though financially able to do so or 51 offered financial or other reasonable means to do so; or 52 (B) in providing the child with proper supervision or guardianship, by 53 unreasonably inflicting or allowing to be inflicted harm, or a substan- 54 tial risk thereof, including the infliction of excessive corporal 55 punishment; or by misusing a drug or drugs; or by misusing alcoholic 56 beverages to the extent that he OR SHE loses self-control of his OR HER S. 995 3 1 actions; or by any other acts of a similarly serious nature requiring 2 the aid of the court; provided, however, that where the respondent is 3 voluntarily and regularly participating in a rehabilitative program, 4 evidence that the respondent has repeatedly misused a drug or drugs or 5 alcoholic beverages to the extent that he OR SHE loses self-control of 6 his OR HER actions shall not establish that the child is a neglected 7 child in the absence of evidence establishing that the child's physical, 8 mental or emotional condition has been impaired or is in imminent danger 9 of becoming impaired as set forth in THIS paragraph [(i) of this subdi- 10 vision]; or 11 (ii) WHO, AS A NEWBORN INFANT, TESTS POSITIVE FOR A CONTROLLED 12 SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR HER BLOODSTREAM OR 13 URINE, IS BORN DEPENDENT ON SUCH DRUGS OR DEMONSTRATES DRUG WITHDRAWAL 14 SYMPTOMS, OR HAS BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT- 15 ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS; OR 16 (III) who has been abandoned by his OR HER parents or other person 17 legally responsible for his OR HER care. 18 S 3. Subdivision (f) of section 1012 of the family court act, as added 19 by chapter 962 of the laws of 1970, subparagraph (A) of paragraph (i) as 20 amended by chapter 469 of the laws of 1971, subparagraph (B) of para- 21 graph (i) as amended by chapter 984 of the laws of 1981 and paragraph 22 (ii) as amended by chapter 666 of the laws of 1976, is amended to read 23 as follows: 24 (f) "Neglected child" means a child less than eighteen years of age 25 (i) whose physical, mental or emotional condition has been impaired or 26 is in imminent danger of becoming impaired as a result of the failure of 27 his OR HER parent or other person legally responsible for his OR HER 28 care to exercise a minimum degree of care 29 (A) in supplying the child with adequate food, clothing, shelter or 30 education in accordance with the provisions of part one of article 31 sixty-five of the education law, or medical, dental, optometrical or 32 surgical care, though financially able to do so or offered financial or 33 other reasonable means to do so; or 34 (B) in providing the child with proper supervision or guardianship, by 35 unreasonably inflicting or allowing to be inflicted harm, or a substan- 36 tial risk thereof, including the infliction of excessive corporal 37 punishment; or by misusing a drug or drugs; or by misusing alcoholic 38 beverages to the extent that he OR SHE loses self-control of his OR HER 39 actions; or by any other acts of a similarly serious nature requiring 40 the aid of the court; provided, however, that where the respondent is 41 voluntarily and regularly participating in a rehabilitative program, 42 evidence that the respondent has repeatedly misused a drug or drugs or 43 alcoholic beverages to the extent that he OR SHE loses self-control of 44 his OR HER actions shall not establish that the child is a neglected 45 child in the absence of evidence establishing that the child's physical, 46 mental or emotional condition has been impaired or is in imminent danger 47 of becoming impaired as set forth in THIS paragraph [(i) of this subdi- 48 vision]; or 49 (ii) WHO, AS A NEWBORN INFANT, TESTS POSITIVE FOR A CONTROLLED 50 SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR HER BLOODSTREAM OR 51 URINE, IS BORN DEPENDENT ON SUCH DRUGS OR DEMONSTRATES DRUG WITHDRAWAL 52 SYMPTOMS, OR HAS BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT- 53 ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS; OR 54 (III) who has been abandoned, in accordance with the definition and 55 other criteria set forth in subdivision five of section three hundred S. 995 4 1 eighty-four-b of the social services law, by his OR HER parents or other 2 person legally responsible for his OR HER care. 3 S 4. Subdivision (b) of section 1028 of the family court act, as 4 amended by chapter 145 of the laws of 2000, is amended to read as 5 follows: 6 (b) In determining whether temporary removal of the child is necessary 7 to avoid imminent risk to the child's life or health, the court shall 8 consider and determine in its order whether continuation in the child's 9 home would be contrary to the best interests of the child and where 10 appropriate, whether reasonable efforts were made prior to the date of 11 the hearing to prevent or eliminate the need for removal of the child 12 from the home and where appropriate, whether reasonable efforts were 13 made after removal of the child to make it possible for the child to 14 safely return home. 15 IN A CASE INVOLVING A NEWBORN INFANT TESTING POSITIVE FOR A CONTROLLED 16 SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR HER BLOODSTREAM OR 17 URINE, BORN DEPENDENT ON SUCH DRUGS, DEMONSTRATING DRUG WITHDRAWAL SYMP- 18 TOMS, OR HAVING BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT- 19 ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS, SUCH STATUS OF THE CHILD 20 SHALL ESTABLISH A REBUTTABLE PRESUMPTION THAT THE RELEASE OF THE INFANT 21 TO THE PARENT PRESENTS AN IMMINENT DANGER TO THE CHILD'S LIFE OR HEALTH. 22 S 5. Paragraphs (vii) and (viii) of subdivision (a) of section 1046 of 23 the family court act, paragraph (vii) as amended by chapter 432 of the 24 laws of 1993 and paragraph (viii) as added by chapter 1015 of the laws 25 of 1972, are amended and a new paragraph (ix) is added to read as 26 follows: 27 (vii) neither the privilege attaching to confidential communications 28 between husband and wife, as set forth in section forty-five hundred two 29 of the civil practice law and rules, nor the physician-patient and 30 related privileges, as set forth in section forty-five hundred four of 31 the civil practice law and rules, nor the psychologist-client privilege, 32 as set forth in section forty-five hundred seven of the civil practice 33 law and rules, nor the social worker-client privilege, as set forth in 34 section forty-five hundred eight of the civil practice law and rules, 35 nor the rape crisis counselor-client privilege, as set forth in section 36 forty-five hundred ten of the civil practice law and rules, shall be a 37 ground for excluding evidence which otherwise would be admissible[.]; 38 AND 39 (viii) proof of the "impairment of emotional health" or "impairment of 40 mental or emotional condition" as a result of the unwillingness or 41 inability of the respondent to exercise a minimum degree of care toward 42 a child may include competent opinion or expert testimony and may 43 include proof that such impairment lessened during a period when the 44 child was in the care, custody or supervision of a person or agency 45 other than the respondent[.]; AND 46 (IX) PROOF THAT A NEWBORN INFANT TESTS POSITIVE FOR A CONTROLLED 47 SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR HER BLOODSTREAM OR 48 URINE, IS BORN DEPENDENT ON SUCH DRUGS, DEMONSTRATES DRUG WITHDRAWAL 49 SYMPTOMS, OR HAS BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT- 50 ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS SHALL BE PRIMA FACIE PROOF OF 51 NEGLECT. 52 S 6. Subdivision (d) of section 1051 of the family court act, as 53 amended by chapter 478 of the laws of 1988, is amended to read as 54 follows: 55 (d) If the court makes a finding of abuse or neglect, it shall deter- 56 mine, based upon the facts adduced during the fact-finding hearing and S. 995 5 1 any other additional facts presented to it, whether a preliminary order 2 pursuant to section one thousand twenty-seven OF THIS ARTICLE is 3 required to protect the child's interests pending a final order of 4 disposition. The court shall state the grounds for its determination. In 5 addition, a child found to be abused or neglected may be removed and 6 remanded to a place approved for such purpose by the local social 7 services department or be placed in the custody of a suitable person, 8 pending a final order of disposition, if the court finds that there is a 9 substantial probability that the final order of disposition will be an 10 order of placement under section one thousand fifty-five OF THIS PART. 11 In determining whether substantial probability exists, the court shall 12 consider the requirements of subdivision (b) of section one thousand 13 fifty-two OF THIS PART. PROVIDED, HOWEVER, THAT IN A CASE INVOLVING A 14 NEWBORN INFANT TESTING POSITIVE FOR A CONTROLLED SUBSTANCE NOT 15 PRESCRIBED BY A PHYSICIAN, IN HIS OR HER BLOODSTREAM OR URINE, BORN 16 DEPENDENT ON SUCH DRUGS, DEMONSTRATING DRUG WITHDRAWAL SYMPTOMS, OR 17 HAVING BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUTABLE TO IN 18 UTERO EXPOSURE TO ILLEGAL DRUGS, SUCH STATUS OF THE CHILD SHALL ESTAB- 19 LISH A REBUTTABLE PRESUMPTION THAT THE RELEASE OF THE INFANT TO THE 20 PARENT PRESENTS AN IMMINENT DANGER TO THE CHILD'S LIFE OR HEALTH. 21 S 7. This act shall take effect immediately.