Bill Text: NY S01447 | 2015-2016 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to assisting and protecting victims of domestic violence, child abuse and child neglect.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2016-06-17 - COMMITTED TO RULES [S01447 Detail]

Download: New_York-2015-S01447-Introduced.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1447
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   January 12, 2015
                                      ___________
       Introduced  by  Sen.  GOLDEN -- 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, the criminal procedure law  and
         the  civil  practice  law  and  rules,  in  relation  to assisting and
         protecting victims of domestic violence, child abuse and child neglect
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Legislative  intent.  Presently,  a  person  convicted of
    2  harassment, which is only a violation under the  penal  law,  enjoys  an
    3  automatic  seal on his or her criminal record. Harassment often includes
    4  matters of domestic violence.  In  subsequent  proceedings  between  the
    5  victim  of  the  violence and the convicted aggressor, the record of the
    6  criminal court, the police arrest and investigation, and the aggressor's
    7  conviction, admissions or orders of protection in  the  criminal  matter
    8  are  not  available  to  the  victim to prove that the domestic violence
    9  occurred; making it difficult for  the  victim  to  protect  himself  or
   10  herself  against further aggression or obtain justice in family court or
   11  other civil proceedings. This act will  allow  the  victim  or  victim's
   12  representative  to  obtain  a judicial subpoena releasing such record to
   13  the family or supreme court.
   14    Likewise, where an investigation by child protective  services  "indi-
   15  cates" the abuse or neglect of a child, the state law allows the subject
   16  of the report the ability to amend the report to "unfounded" without any
   17  notice  or  opportunity  to  object  to the amendment being given to the
   18  victim of the abuse or  neglect.  As  a  result,  if  amended,  even  by
   19  default,  the victim or co-parent cannot access the record of the inves-
   20  tigation in subsequent family or supreme court  proceedings.    Further,
   21  the person previously "indicated" can use the amended report as a weapon
   22  against  the  opposing party to show that their allegation, or belief in
   23  the allegation, was frivolous. Even where  the  "indicated"  finding  is
   24  properly amended to "unfounded," and the accused was frivolously victim-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00955-01-5
       S. 1447                             2
    1  ized  by  the  allegations  of  their  opposing party, the reporting law
    2  shields the  identity  of  the  false  reporter.  This  act,  therefore,
    3  protects  the victims of child abuse, child neglect and wrongful accusa-
    4  tions  of  child abuse and neglect by opening the records of the central
    5  registry by judicial subpoena.
    6    Finally, the state  legislature  enacted  a  hearsay  exception  to  a
    7  child's  statements  of  abuse  or neglect in section 1065 of the family
    8  court act.  Justifiably, if not technically correct, the state's  appel-
    9  late  courts  have expanded such section's exception to custody, divorce
   10  and child support proceedings. However, this exception is not  currently
   11  available  in every matter where domestic violence, child abuse or child
   12  neglect may be at issue (i.e. surrogate court matters, tort actions,  or
   13  family  offenses). This act allows the judges, parens patria, to provide
   14  further protection to children  in  consideration  of  their  particular
   15  emotional immaturity and fragility, while preventing convictions on only
   16  the allegations of a child.
   17    S  2.  Subparagraphs (iv) and (v) of paragraph (a) of subdivision 5 of
   18  section 422 of the social services law, subparagraph (iv) as amended  by
   19  chapter 555 of the laws of 2000 and subparagraph (v) as amended by chap-
   20  ter 256 of the laws of 2014, are amended to read as follows:
   21    (iv) to the subject of the report; [and]
   22    (v)  to a district attorney, an assistant district attorney, an inves-
   23  tigator employed in the office of a district attorney,  or  to  a  sworn
   24  officer  of  the  division  of  state police, of a city, county, town or
   25  village police department or of a  county  sheriff's  office  when  such
   26  official  verifies  that  the  report  is necessary to conduct an active
   27  investigation or prosecution of  a  violation  of  subdivision  four  of
   28  section 240.50 of the penal law; AND
   29    (VI)  ON  JUDICIAL  SUBPOENA  OF THE FAMILY OR SUPREME COURT WHERE THE
   30  PROTECTION OF A CHILD OR A FALSE ALLEGATION OF CHILD ABUSE OR NEGLECT IS
   31  AT ISSUE AND THE SUBJECT OF THE REPORT IS A PARTY TO AN ACTION THEREIN.
   32    S 3. Subdivision 7 of section 422  of  the  social  services  law,  as
   33  amended  by  chapter  434  of  the  laws  of 1989, is amended to read as
   34  follows:
   35    7. At any time, a subject of a report [and], other  persons  named  in
   36  the  report  OR THEIR GUARDIANS OR CUSTODIANS, AND THE FAMILY OR SUPREME
   37  COURT BY JUDICIAL SUBPOENA AND WHERE THE PROTECTION OF A CHILD OR  FALSE
   38  ALLEGATIONS OF CHILD ABUSE OR NEGLECT IS AT ISSUE AND THE SUBJECT OF THE
   39  REPORT  IS  A  PARTY  TO AN ACTION THEREIN, may receive, upon request, a
   40  copy of all information contained in  the  central  register;  provided,
   41  however, that the commissioner is authorized, EXCEPT WHEN THE REQUEST IS
   42  MADE  BY JUDICIAL SUBPOENA AND THE REPORTER IS A PARTY TO THE ACTION, to
   43  prohibit the release of data that would identify the person who made the
   44  report or who cooperated in a subsequent investigation  or  the  agency,
   45  institution,  organization, program or other entity where such person is
   46  employed or with which he is associated, which he reasonably finds  will
   47  be detrimental to the safety or interests of such person.
   48    S  4. Subparagraph (i) of paragraph (a) and subparagraphs (i) and (ii)
   49  of paragraph (b) of subdivision 8 of section 422 of the social  services
   50  law, as amended by chapter 12 of the laws of 1996, are amended and a new
   51  paragraph (f) is added to read as follows:
   52    (i)  At any time subsequent to the completion of the investigation but
   53  in no event later than ninety days after the subject of  the  report  is
   54  notified  that  the  report  is  indicated  the  subject may request the
   55  commissioner to amend the record of the report.  THE COMMISSIONER  SHALL
   56  MAIL  TO  THE  VICTIM'S  PARENT,  GUARDIAN  OR  CUSTODIAN  NOTICE OF THE
       S. 1447                             3
    1  SUBJECT'S REQUEST TO AMEND AND THE BASIS UPON  WHICH  THE  AMENDMENT  IS
    2  SOUGHT.  SUCH  PARENT, GUARDIAN OR CUSTODIAN MAY OBJECT TO THE AMENDMENT
    3  WITHIN THIRTY DAYS OF NOTICE BY MAILING HIS  OR  HER  OBJECTION  TO  THE
    4  COMMISSIONER.  If  the commissioner does not amend the report in accord-
    5  ance with such request within ninety days of receiving the request,  the
    6  subject  shall have the right to a fair hearing, held in accordance with
    7  paragraph (b) of this subdivision, to determine whether  the  record  of
    8  the report in the central register should be amended on the grounds that
    9  it is inaccurate or it is being maintained in a manner inconsistent with
   10  this title.
   11    (i)  If the department, within ninety days of receiving a request from
   12  the subject that the record of a report be amended, does not  amend  the
   13  record  in accordance with such request, the department shall schedule a
   14  fair hearing and shall provide notice of the scheduled hearing  date  to
   15  the  subject,  the statewide central register [and, as appropriate, to],
   16  the child protective service or the state agency which investigated  the
   17  report,  THE  ADULT  VICTIM,  OR  THE MINOR VICTIM'S PARENT, GUARDIAN OR
   18  CUSTODIAN. SUCH PARENT, GUARDIAN OR CUSTODIAN MAY APPEAR IN  PERSON,  OR
   19  BY  AN  ATTORNEY,  TO  OBJECT  TO  THE  REQUESTED  AMENDMENT AND PRESENT
   20  WITNESSES, SWORN STATEMENTS AND OTHER EVIDENCE FOR PRESENTATION  TO  THE
   21  HEARING OFFICER.
   22    (ii)  The  burden  of  proof  in  such a hearing shall be on the child
   23  protective service or the state agency which  investigated  the  report,
   24  THE  ADULT  VICTIM, OR THE MINOR VICTIM'S PARENT, GUARDIAN OR CUSTODIAN,
   25  as the case may be. In such a hearing, the fact that there is  a  family
   26  court  finding  of  abuse or neglect against the subject in regard to an
   27  allegation contained in the report shall create an irrebuttable presump-
   28  tion that said allegation is substantiated by some credible evidence.
   29    (F) AN ADULT VICTIM, OR THE MINOR VICTIM'S PARENT, GUARDIAN OR  CUSTO-
   30  DIAN  MAY  SEEK TO VACATE AN AMENDMENT MADE PURSUANT TO PARAGRAPH (E) OF
   31  THIS SUBDIVISION WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS PARAGRAPH
   32  OR KNOWLEDGE THAT SUCH AN AMENDMENT HAS BEEN MADE WITHOUT  SUCH  PARENT,
   33  GUARDIAN  OR  CUSTODIAN  RECEIVING  NOTICE  OF  HEARING OR THE SUBJECT'S
   34  REQUEST TO AMEND. THE ADULT VICTIM, OR THE MINOR VICTIM'S PARENT, GUARD-
   35  IAN OR CUSTODIAN SEEKING TO VACATE AN UNNOTICED  AMENDMENT  SHALL  STATE
   36  WITH PARTICULARITY THE DATE THAT THEY BECAME AWARE THAT AN AMENDMENT WAS
   37  MADE  AND  THE  EVIDENCE  HE  OR  SHE WILL PRESENT THAT DEMONSTRATES THE
   38  COMMISSIONER'S ERROR IN AMENDMENT. THE  COMMISSIONER  SHALL  SCHEDULE  A
   39  REHEARING DATE, AND SHALL IMMEDIATELY INFORM THE SUBJECT OF THE FORMERLY
   40  INDICATED REPORT, THE ADULT VICTIM OR MINOR VICTIM'S PARENT, GUARDIAN OR
   41  CUSTODIAN,  AND  THE  CHILD  PROTECTIVE SERVICE OR THE STATE AGENCY THAT
   42  INVESTIGATED THE REPORT.
   43    S 5. Paragraph (d) of subdivision 1 of section 160.55 of the  criminal
   44  procedure  law, as amended by section 74 of subpart B of part C of chap-
   45  ter 62 of the laws of 2011, is amended to read as follows:
   46    (d) the records referred to in paragraph (c) of this subdivision shall
   47  be made available to the person accused or to such  person's  designated
   48  agent, and shall be made available to (i) a prosecutor in any proceeding
   49  in  which  the accused has moved for an order pursuant to section 170.56
   50  or 210.46 of this chapter, or (ii) a  law  enforcement  agency  upon  ex
   51  parte  motion  in any superior court, if such agency demonstrates to the
   52  satisfaction of the court that justice requires  that  such  records  be
   53  made available to it, or (iii) any state or local officer or agency with
   54  responsibility  for  the  issuance of licenses to possess guns, when the
   55  accused has made application for such a license, or (iv)  the  New  York
   56  state  department  of  corrections  and  community  supervision when the
       S. 1447                             4
    1  accused is under parole supervision as a result of  conditional  release
    2  or  parole release granted by the New York state board of parole and the
    3  arrest which is the subject of the inquiry is one which  occurred  while
    4  the  accused was under such supervision, or (v) the probation department
    5  responsible for supervision of the accused when the arrest which is  the
    6  subject of the inquiry is one which occurred while the accused was under
    7  such  supervision,  or (vi) a police agency, probation department, sher-
    8  iff's office, district attorney's office, department  of  correction  of
    9  any  municipality  and  parole department, for law enforcement purposes,
   10  upon arrest in instances in which the  individual  stands  convicted  of
   11  harassment  in  the  second  degree, as defined in section 240.26 of the
   12  penal law, committed against a member of the same family or household as
   13  the defendant, as defined in subdivision one of section 530.11  of  this
   14  chapter,  and  determined  pursuant  to  subdivision  eight-a of section
   15  170.10 of this title, OR (VII) UPON RECEIPT OF A JUDICIAL SUBPOENA,  THE
   16  FAMILY  OR  SUPREME  COURT  IN  A  MATTER  WHERE  DOMESTIC VIOLENCE, THE
   17  PROTECTION OF A CHILD, OR A FALSE ALLEGATION OF DOMESTIC VIOLENCE, CHILD
   18  ABUSE OR NEGLECT IS AT ISSUE AND THE DEFENDANT IS A PARTY TO THE  ACTION
   19  THEREIN; and
   20    S  6.  The  civil  practice  law  and rules is amended by adding a new
   21  section 4549 to read as follows:
   22    S 4549. EVIDENCE OF CHILD'S STATEMENTS  REGARDING  DOMESTIC  VIOLENCE,
   23  ABUSE OR NEGLECT. 1. PREVIOUS STATEMENTS MADE BY A CHILD RELATING TO ANY
   24  ALLEGATIONS  OF  DOMESTIC  VIOLENCE  OR  CHILD ABUSE OR NEGLECT SHALL BE
   25  GENERALLY ADMISSIBLE IN EVIDENCE, BUT IF UNCORROBORATED, SUCH  STATEMENT
   26  SHALL  NOT BE SUFFICIENT TO MAKE A FACT-FINDING OF ABUSE OR NEGLECT. ANY
   27  OTHER EVIDENCE TENDING TO SUPPORT THE RELIABILITY OF THE CHILD'S  PREVI-
   28  OUS  STATEMENTS  SHALL  BE  GENERALLY  ADMISSIBLE AND SUFFICIENT CORROB-
   29  ORATION. THE TESTIMONY OF THE CHILD SHALL NOT BE  NECESSARY  TO  MAKE  A
   30  FACT-FINDING OF DOMESTIC VIOLENCE, ABUSE OR NEGLECT.
   31    2.  THE  PRESIDING  JUDGE MAY, HOWEVER, ISSUE AN ORDER PROHIBITING THE
   32  DIVULGING OF THE CONTENTS OF SUCH STATEMENTS TO  ANY  ENTITY  OR  PERSON
   33  OTHER  THAN  THE  COURT, LITIGANTS, THEIR COUNSEL AND ANY WITNESS DEEMED
   34  NECESSARY TO THE PROCEEDINGS.
   35    S 7. This act shall take effect immediately.
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