Bill Text: NY S01690 | 2017-2018 | General Assembly | Introduced
Bill Title: Provides for the protection of the children of parents who abuse other children for whom they are legally responsible.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2018-06-12 - referred to children and families [S01690 Detail]
Download: New_York-2017-S01690-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1690 2017-2018 Regular Sessions IN SENATE January 10, 2017 ___________ Introduced by Sen. AVELLA -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families AN ACT to amend the family court act and the social services law, in relation to the liability for abuse of a child by a person legally responsible for such child The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision (j) of section 1012 of the family court act, as 2 amended by section 3 of part B of chapter 3 of the laws of 2005, is 3 amended to read as follows: 4 (j) "Aggravated circumstances" means where a child has been either 5 severely or repeatedly abused, as defined and provided for in subdivi- 6 sion eight of section three hundred eighty-four-b of the social services 7 law, by a parent or by a person legally responsible for such child or 8 another child; or where a child has subsequently been found to be an 9 abused child, as defined in paragraph (i) or (iii) of subdivision (e) of 10 this section, within five years after return home following placement in 11 foster care as a result of being found to be a neglected child, as 12 defined in subdivision (f) of this section, provided that the respondent 13 or respondents, being either the child's parent or a person legally 14 responsible for such child or another child, in each of the foregoing 15 proceedings was the same; or where the court finds by clear and convinc- 16 ing evidence that the parent of a child in foster care has refused and 17 has failed completely, over a period of at least six months from the 18 date of removal, to engage in services necessary to eliminate the risk 19 of abuse or neglect if returned to the parent, and has failed to secure 20 services on his or her own or otherwise adequately prepare for the 21 return home and, after being informed by the court that such an admis- 22 sion could eliminate the requirement that the local department of social 23 services provide reunification services to the parent, the parent has 24 stated in court under oath that he or she intends to continue to refuse EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01256-01-7S. 1690 2 1 such necessary services and is unwilling to secure such services inde- 2 pendently or otherwise prepare for the child's return home; provided, 3 however, that if the court finds that adequate justification exists for 4 the failure to engage in or secure such services, including but not 5 limited to a lack of child care, a lack of transportation, and an 6 inability to attend services that conflict with the parent's work sched- 7 ule, such failure shall not constitute an aggravated circumstance; or 8 where a court has determined a child five days old or younger was aban- 9 doned by a parent with an intent to wholly abandon such child and with 10 the intent that the child be safe from physical injury and cared for in 11 an appropriate manner. 12 § 2. Paragraph (i) of subdivision (a) of section 1046 of the family 13 court act, as added by chapter 962 of the laws of 1970, is amended to 14 read as follows: 15 (i) proof of the aggravated circumstances, abuse or neglect of one 16 child shall be admissible evidence on the issue of the aggravated 17 circumstances, abuse or neglect of any other child of, or the legal 18 responsibility of, the respondent; and 19 § 3. Paragraph (e) of subdivision 4 of section 384-b of the social 20 services law, as amended by section 56 of part A of chapter 3 of the 21 laws of 2005, is amended to read as follows: 22 (e) The parent or parents, whose consent to the adoption of the child 23 would otherwise be required in accordance with section one hundred elev- 24 en of the domestic relations law, severely or repeatedly abused such 25 child or any child for whom such parent is or has been a person legally 26 responsible, as defined in subdivision (g) of section one thousand 27 twelve of the family court act. Where a court has determined that 28 reasonable efforts to reunite the child with his or her parent are not 29 required, pursuant to the family court act or this chapter, or where the 30 child was severely or repeatedly abused is not the child of the respond- 31 ent in the termination proceeding, a petition to terminate parental 32 rights on the ground of severe abuse as set forth in subparagraph (iii) 33 of paragraph (a) of subdivision eight of this section may be filed imme- 34 diately upon such determination. 35 § 4. Subdivision 8 of section 384-b of the social services law, as 36 amended by chapter 7 of the laws of 1999, subparagraph (ii) of paragraph 37 (a) and subparagraph (i) of paragraph (b) as amended by chapter 430 of 38 the laws of 2013, clause (A) of subparagraph (iii) of paragraph (a) as 39 amended by chapter 460 of the laws of 2006, paragraph (f) as amended by 40 section 58 of part A of chapter 3 of the laws of 2005, is amended to 41 read as follows: 42 8. (a) For the purposes of this section a child is "severely abused" 43 by his or her parent or by a respondent who is or was a person legally 44 responsible, as defined in subdivision (g) of section one thousand 45 twelve of the family court act, for a child, if (i) the child has been 46 found to be an abused child as a result of reckless or intentional acts 47 of the parent or such person committed under circumstances evincing a 48 depraved indifference to human life, which result in serious physical 49 injury to the child as defined in subdivision ten of section 10.00 of 50 the penal law; or 51 (ii) the child has been found to be an abused child, as defined in 52 paragraph (iii) of subdivision (e) of section ten hundred twelve of the 53 family court act, as a result of such parent's or person legally respon- 54 sible's acts; provided, however, the respondent must have committed or 55 knowingly allowed to be committed a felony sex offense as defined in 56 sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67,S. 1690 3 1 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law and, for the 2 purposes of this section the corroboration requirements contained in the 3 penal law shall not apply to proceedings under this section; or 4 (iii) (A) the parent of such child or a person legally responsible, as 5 defined in subdivision (g) of section one thousand twelve of the family 6 court act, has been convicted of murder in the first degree as defined 7 in section 125.27, murder in the second degree as defined in section 8 125.25, manslaughter in the first degree as defined in section 125.20, 9 or manslaughter in the second degree as defined in section 125.15, and 10 the victim of any such crime was another child of the parent or another 11 child for whose care such parent is or has been legally responsible as 12 defined in subdivision (g) of section one thousand twelve of the family 13 court act, or another parent of the child, unless the convicted parent 14 was a victim of physical, sexual or psychological abuse by the decedent 15 parent and such abuse was a factor in causing the homicide; or has been 16 convicted of an attempt to commit any of the foregoing crimes, and the 17 victim or intended victim was the child or another child of the parent 18 or another child for whose care such parent is or has been legally 19 responsible as defined in subdivision (g) of section one thousand twelve 20 of the family court act, or another parent of the child, unless the 21 convicted parent was a victim of physical, sexual or psychological abuse 22 by the decedent parent and such abuse was a factor in causing the 23 attempted homicide; (B) the parent of such child has been convicted of 24 criminal solicitation as defined in article one hundred, conspiracy as 25 defined in article one hundred five or criminal facilitation as defined 26 in article one hundred fifteen of the penal law for conspiring, solicit- 27 ing or facilitating any of the foregoing crimes, and the victim or 28 intended victim was the child or another child of the parent or another 29 child for whose care such parent is or has been legally responsible; (C) 30 the parent of such child has been convicted of assault in the second 31 degree as defined in section 120.05, assault in the first degree as 32 defined in section 120.10 or aggravated assault upon a person less than 33 eleven years old as defined in section 120.12 of the penal law, and the 34 victim of any such crime was the child or another child of the parent or 35 another child for whose care such parent is or has been legally respon- 36 sible; or has been convicted of an attempt to commit any of the forego- 37 ing crimes, and the victim or intended victim was the child or another 38 child of the parent or another child for whose care such parent is or 39 has been legally responsible; or (D) the parent of such child has been 40 convicted under the law in any other jurisdiction of an offense which 41 includes all of the essential elements of any crime specified in clause 42 (A), (B) or (C) of this subparagraph; and 43 (iv) in the case where the child, who is the subject of the petition, 44 is in foster care, the agency has made diligent efforts to encourage and 45 strengthen the parental relationship, including efforts to rehabilitate 46 the respondent, when such efforts will not be detrimental to the best 47 interests of the child, and such efforts have been unsuccessful and are 48 unlikely to be successful in the foreseeable future. Where a court has 49 previously determined in accordance with this chapter or the family 50 court act that reasonable efforts to make it possible for the child to 51 return safely to his or her home are not required, the agency shall not 52 be required to demonstrate diligent efforts as set forth in this 53 section. 54 (b) For the purposes of this section a child is "repeatedly abused" by 55 his or her parent or by a respondent who is or was a person legallyS. 1690 4 1 responsible as defined in subdivision (g) of section one thousand twelve 2 of the family court act, for a child, if: 3 (i) the child has been found to be an abused child, (A) as defined in 4 paragraph (i) of subdivision (e) of section ten hundred twelve of the 5 family court act, as a result of such parent's or person legally respon- 6 sible's acts; or (B) as defined in paragraph (iii) of subdivision (e) of 7 section ten hundred twelve of the family court act, as a result of such 8 parent's acts; provided, however, the respondent must have committed or 9 knowingly allowed to be committed a felony sex offense as defined in 10 sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 11 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law; and 12 (ii) (A) the child or another child for whose care such parent is or 13 has been legally responsible has been previously found, within the five 14 years immediately preceding the initiation of the proceeding in which 15 such abuse is found, to be an abused child, as defined in paragraph (i) 16 or (iii) of subdivision (e) of section ten hundred twelve of the family 17 court act, as a result of such parent's acts; provided, however, in the 18 case of a finding of abuse as defined in paragraph (iii) of subdivision 19 (e) of section ten hundred twelve of the family court act the respondent 20 must have committed or knowingly allowed to be committed a felony sex 21 offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 22 130.50, 130.65, 130.67, 130.70, 130.75 and 130.80 of the penal law, or 23 (B) the parent has been convicted of a crime under section 130.25, 24 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75 25 or 130.80 of the penal law against the child, a sibling of the child or 26 another child for whose care such parent is or has been legally respon- 27 sible, within the five year period immediately preceding the initiation 28 of the proceeding in which abuse is found; and 29 (iii) the agency has made diligent efforts, to encourage and strength- 30 en the parental relationship, if the respondent is the child's parent, 31 including efforts to rehabilitate the respondent, when such efforts will 32 not be detrimental to the best interests of the child, and such efforts 33 have been unsuccessful and are unlikely to be successful in the foresee- 34 able future. Where a court has previously determined in accordance with 35 this chapter or the family court act that reasonable efforts to make it 36 possible for the child to return safely to his or her home are not 37 required, the agency shall not be required to demonstrate diligent 38 efforts as set forth in this section. 39 (c) Notwithstanding any other provision of law, the requirements of 40 paragraph (g) of subdivision three of this section shall be satisfied if 41 one of the findings of abuse pursuant to subparagraph (i) or (ii) of 42 paragraph (b) of this subdivision is found to be based on clear and 43 convincing evidence. 44 (d) A determination by the court in accordance with article ten of the 45 family court act based upon clear and convincing evidence that the child 46 was a severely abused child as defined in subparagraphs (i) and (ii) of 47 paragraph (a) of this subdivision shall establish that the child was a 48 severely abused child in accordance with this section. Such a determi- 49 nation by the court in accordance with article ten of the family court 50 act based upon a fair preponderance of evidence shall be admissible in 51 any proceeding commenced in accordance with this section. 52 (e) A determination by the court in accordance with article ten of the 53 family court act based upon clear and convincing evidence that a child 54 was abused (A) as defined in paragraph (i) of subdivision (e) of section 55 ten hundred twelve of the family court act, as a result of such parent's 56 acts; or (B) as defined in paragraph (iii) of subdivision (e) of sectionS. 1690 5 1 ten hundred twelve of the family court act, as a result of such parent's 2 acts; provided, however, the respondent must have committed or knowingly 3 allowed to be committed a felony sex offense as defined in sections 4 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 5 130.75 and 130.80 of the penal law shall establish that the child was an 6 abused child for the purpose of a determination as required by subpara- 7 graph (i) or (ii) of paragraph (b) of this subdivision. Such a determi- 8 nation by the court in accordance with article ten of the family court 9 act based upon a fair preponderance of evidence shall be admissible in 10 any proceeding commenced in accordance with this section. 11 (f) Upon a finding pursuant to paragraph (a) or (b) of this subdivi- 12 sion that the child has been severely or repeatedly abused by his or her 13 parent or by a person legally responsible, as defined by subdivision (g) 14 of section one thousand twelve of the family court act, for a child, the 15 court shall enter an order of disposition either (i) committing the 16 guardianship and custody of the child or any child of such parent, 17 pursuant to this section, or (ii) suspending judgment in accordance with 18 section six hundred thirty-three of the family court act, upon a further 19 finding, based on clear and convincing, competent, material and relevant 20 evidence introduced in a dispositional hearing, that the best interests 21 of the child require such commitment or suspension of judgment, or (iii) 22 terminating the rights of one parent where the child will be in the 23 custody of another parent, a relative or the local commissioner of 24 social services. Where the disposition ordered is the commitment of 25 guardianship and custody pursuant to this section, an initial freed 26 child permanency hearing shall be completed pursuant to section one 27 thousand eighty-nine of the family court act. 28 (g) A petition filed pursuant to this subdivision may also be filed 29 where a child is the child of a respondent who severely abused or 30 repeatedly abused a child for whom he or she was a person legally 31 responsible, as defined in subdivision (g) of section one thousand 32 twelve of the family court act. 33 (h) A petition may be filed pursuant to this subdivision when the 34 severely or repeatedly abused child is not in foster care and/or when 35 only one of such child's parents is a respondent. 36 § 5. This act shall take effect on the ninetieth day after it shall 37 have become a law.
