A. 2408 2
The intervention of the state into the integrity of the family unit
should be exercised cautiously. However, where the very life and safety
of the most vulnerable segment of society is in question, the inter-
vention of the state must be aggressive and consistent.
Under the current appellate case law in this state, proof of illegal
drug abuse during pregnancy as manifested by a positive toxicology
report for drugs in the child is insufficient in and of itself to
support a fact finding of child neglect under article 10 of the family
court act.
Current state office of children and family services policy states:
"Evidence that a newborn infant tests positive for a drug.....in its
bloodstream or urine; is born dependent on drugs or with drug withdrawal
symptoms....; or has been diagnosed as having a condition which may be
attributable to in utero exposure to drugs.....is not sufficient, in and
of itself, to support a determination that the child is mistreated. In
addition, such evidence alone is not sufficient for a social service
district to take protective custody of such a child."
As a consequence, a positive toxicology report, without additional
supporting evidence, may not be used to "indicate" a report of child
abuse or maltreatment to the State Central Register of Abuse and
Maltreatment. This policy creates an unacceptable risk to New York's
most vulnerable citizens: newborn infants.
At present, infants born with such a positive toxicology must, without
additional evidence of neglect, be discharged home without mandating
support, supervision or intervention - only to await the occurrence of
other neglect, injury or even death before protective action can be
taken.
While intending to protect children, laws that essentially require the
child to be injured or harmed before help is offered are fatally flawed.
The tragic consequences of such defective laws are needless and avoid-
able particularly when at the time of birth authorities are aware of an
immediate problem.
The legislature finds that more than sufficient research and scholar-
ship exist to find the strongest possible causation between illegal drug
use during pregnancy and risk to the health and welfare of a child. It
is therefore the intent of this legislature that proof of illegal drug
use during pregnancy as manifested by a positive toxicology report is,
in and of itself, the basis for a prima facie finding that the child is
a neglected child.
S 2. Subdivision 4-a of section 371 of the social services law, as
added by chapter 782 of the laws of 1971, subparagraph (B) of paragraph
(i) as amended by chapter 984 of the laws of 1981, is amended to read as
follows:
4-a. "Neglected child" means a child less than eighteen years of age
(i) whose physical, mental or emotional condition has been impaired or
is in imminent danger of becoming impaired as a result of the failure of
his OR HER parent or other person legally responsible for his OR HER
care to exercise a minimum degree of care
(A) in supplying the child with adequate food, clothing, shelter,
education, medical or surgical care, though financially able to do so or
offered financial or other reasonable means to do so; or
(B) in providing the child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted harm, or a substan-
tial risk thereof, including the infliction of excessive corporal
punishment; or by misusing a drug or drugs; or by misusing alcoholic
beverages to the extent that he OR SHE loses self-control of his OR HER
A. 2408 3
actions; or by any other acts of a similarly serious nature requiring
the aid of the court; provided, however, that where the respondent is
voluntarily and regularly participating in a rehabilitative program,
evidence that the respondent has repeatedly misused a drug or drugs or
alcoholic beverages to the extent that he OR SHE loses self-control of
his OR HER actions shall not establish that the child is a neglected
child in the absence of evidence establishing that the child's physical,
mental or emotional condition has been impaired or is in imminent danger
of becoming impaired as set forth in THIS paragraph [(i) of this subdi-
vision]; or
(ii) WHO, AS A NEWBORN INFANT, TESTS POSITIVE FOR A CONTROLLED
SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR HER BLOODSTREAM OR
URINE, IS BORN DEPENDENT ON SUCH DRUGS OR DEMONSTRATES DRUG WITHDRAWAL
SYMPTOMS, OR HAS BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT-
ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS; OR
(III) who has been abandoned by his OR HER parents or other person
legally responsible for his OR HER care.
S 3. Subdivision (f) of section 1012 of the family court act, as added
by chapter 962 of the laws of 1970, subparagraph (A) of paragraph (i) as
amended by chapter 469 of the laws of 1971, subparagraph (B) of para-
graph (i) as amended by chapter 984 of the laws of 1981 and paragraph
(ii) as amended by chapter 666 of the laws of 1976, is amended to read
as follows:
(f) "Neglected child" means a child less than eighteen years of age
(i) whose physical, mental or emotional condition has been impaired or
is in imminent danger of becoming impaired as a result of the failure of
his OR HER parent or other person legally responsible for his OR HER
care to exercise a minimum degree of care
(A) in supplying the child with adequate food, clothing, shelter or
education in accordance with the provisions of part one of article
sixty-five of the education law, or medical, dental, optometrical or
surgical care, though financially able to do so or offered financial or
other reasonable means to do so; or
(B) in providing the child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted harm, or a substan-
tial risk thereof, including the infliction of excessive corporal
punishment; or by misusing a drug or drugs; or by misusing alcoholic
beverages to the extent that he OR SHE loses self-control of his OR HER
actions; or by any other acts of a similarly serious nature requiring
the aid of the court; provided, however, that where the respondent is
voluntarily and regularly participating in a rehabilitative program,
evidence that the respondent has repeatedly misused a drug or drugs or
alcoholic beverages to the extent that he OR SHE loses self-control of
his OR HER actions shall not establish that the child is a neglected
child in the absence of evidence establishing that the child's physical,
mental or emotional condition has been impaired or is in imminent danger
of becoming impaired as set forth in THIS paragraph [(i) of this subdi-
vision]; or
(ii) WHO, AS A NEWBORN INFANT, TESTS POSITIVE FOR A CONTROLLED
SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR HER BLOODSTREAM OR
URINE, IS BORN DEPENDENT ON SUCH DRUGS OR DEMONSTRATES DRUG WITHDRAWAL
SYMPTOMS, OR HAS BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT-
ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS; OR
(III) who has been abandoned, in accordance with the definition and
other criteria set forth in subdivision five of section three hundred
A. 2408 4
eighty-four-b of the social services law, by his OR HER parents or other
person legally responsible for his OR HER care.
S 4. Subdivision (b) of section 1028 of the family court act, as
amended by chapter 145 of the laws of 2000, is amended to read as
follows:
(b) In determining whether temporary removal of the child is necessary
to avoid imminent risk to the child's life or health, the court shall
consider and determine in its order whether continuation in the child's
home would be contrary to the best interests of the child and where
appropriate, whether reasonable efforts were made prior to the date of
the hearing to prevent or eliminate the need for removal of the child
from the home and where appropriate, whether reasonable efforts were
made after removal of the child to make it possible for the child to
safely return home.
IN A CASE INVOLVING A NEWBORN INFANT TESTING POSITIVE FOR A CONTROLLED
SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR HER BLOODSTREAM OR
URINE, BORN DEPENDENT ON SUCH DRUGS, DEMONSTRATING DRUG WITHDRAWAL SYMP-
TOMS, OR HAVING BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT-
ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS, SUCH STATUS OF 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.
S 5. Paragraphs (vii) and (viii) of subdivision (a) of section 1046 of
the family court act, paragraph (vii) as amended by chapter 432 of the
laws of 1993 and paragraph (viii) as added by chapter 1015 of the laws
of 1972, are amended and a new paragraph (ix) is added to read as
follows:
(vii) neither the privilege attaching to confidential communications
between husband and wife, as set forth in section forty-five hundred two
of the civil practice law and rules, nor the physician-patient and
related privileges, as set forth in section forty-five hundred four of
the civil practice law and rules, nor the psychologist-client privilege,
as set forth in section forty-five hundred seven of the civil practice
law and rules, nor the social worker-client privilege, as set forth in
section forty-five hundred eight of the civil practice law and rules,
nor the rape crisis counselor-client privilege, as set forth in section
forty-five hundred ten of the civil practice law and rules, shall be a
ground for excluding evidence which otherwise would be admissible[.];
AND
(viii) proof of the "impairment of emotional health" or "impairment of
mental or emotional condition" as a result of the unwillingness or
inability of the respondent to exercise a minimum degree of care toward
a child may include competent opinion or expert testimony and may
include proof that such impairment lessened during a period when the
child was in the care, custody or supervision of a person or agency
other than the respondent[.]; AND
(IX) PROOF THAT A NEWBORN INFANT TESTS POSITIVE FOR A CONTROLLED
SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR HER BLOODSTREAM OR
URINE, IS BORN DEPENDENT ON SUCH DRUGS, DEMONSTRATES DRUG WITHDRAWAL
SYMPTOMS, OR HAS BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT-
ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS SHALL BE PRIMA FACIE PROOF OF
NEGLECT.
S 6. Subdivision (d) of section 1051 of the family court act, as
amended by chapter 478 of the laws of 1988, is amended to read as
follows:
(d) If the court makes a finding of abuse or neglect, it shall deter-
mine, based upon the facts adduced during the fact-finding hearing and
A. 2408 5
any other additional facts presented to it, whether a preliminary order
pursuant to section one thousand twenty-seven OF THIS ARTICLE is
required to protect the child's interests pending a final order of
disposition. The court shall state the grounds for its determination. In
addition, a child found to be abused or neglected may be removed and
remanded to a place approved for such purpose by the local social
services department or be placed in the custody of a suitable person,
pending a final order of disposition, if the court finds that there is a
substantial probability that the final order of disposition will be an
order of placement under section one thousand fifty-five OF THIS PART.
In determining whether substantial probability exists, the court shall
consider the requirements of subdivision (b) of section one thousand
fifty-two OF THIS PART. PROVIDED, HOWEVER, THAT IN A CASE INVOLVING A
NEWBORN INFANT TESTING POSITIVE FOR A CONTROLLED SUBSTANCE NOT
PRESCRIBED BY A PHYSICIAN, IN HIS OR HER BLOODSTREAM OR URINE, BORN
DEPENDENT ON SUCH DRUGS, DEMONSTRATING DRUG WITHDRAWAL SYMPTOMS, OR
HAVING BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUTABLE TO IN
UTERO EXPOSURE TO ILLEGAL DRUGS, SUCH STATUS OF THE CHILD SHALL ESTAB-
LISH A REBUTTABLE PRESUMPTION THAT THE RELEASE OF THE INFANT TO THE
PARENT PRESENTS AN IMMINENT DANGER TO THE CHILD'S LIFE OR HEALTH.
S 7. This act shall take effect immediately.