S T A T E O F N E W Y O R K
________________________________________________________________________
1904
2013-2014 Regular Sessions
I N S E N A T E
(PREFILED)
January 9, 2013
___________
Introduced by Sen. SKELOS -- 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 domestic relations law, in
relation to abandoned infants
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 1012 of the family court act is amended by adding
a new subdivision (f-1) to read as follows:
(F-1) A CHILD IS AN "ABANDONED INFANT" WHEN THE COURT ENTERS AN ORDER
PURSUANT TO SECTION ONE THOUSAND FIFTY-ONE-A OF THIS ARTICLE THAT SUCH
CHILD IS NOT MORE THAN THIRTY DAYS OLD AND WHO HAS BEEN LEFT BY HIS OR
HER PARENT IN A MANNER WHICH INDICATES INTENT TO SURRENDER AND RELIN-
QUISH ALL RESPONSIBILITY FOR THE CARE OF SUCH CHILD.
S 2. Paragraph (ii) of subdivision (f) of section 1012 of the family
court act, as amended by chapter 666 of the laws of 1976, is amended to
read as follows:
(ii) who has been abandoned, in accordance with the definition and
other criteria set forth in subdivision five of section three hundred
eighty-four-b of the social services law, by his OR HER parents or other
person legally responsible for his OR HER care, BUT SHALL NOT INCLUDE AN
ABANDONED INFANT AS DEFINED IN SUBDIVISION (F-1) OF THIS SECTION.
S 3. Subdivision (j) of section 1012 of the family court act, as
amended by section 3 of part B of chapter 3 of the laws of 2005, is
amended to read as follows:
(j) "Aggravated circumstances" means where a child has been either
severely or repeatedly abused, as defined in subdivision eight of
section three hundred eighty-four-b of the social services law; OR WHERE
A CHILD HAS BEEN DETERMINED TO BE AN ABANDONED INFANT PURSUANT TO
SECTION ONE THOUSAND FIFTY-ONE-A OF THIS ARTICLE; or where a child has
subsequently been found to be an abused child, as defined in paragraph
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05819-01-3
S. 1904 2
(i) or (iii) of subdivision (e) of this section, within five years after
return home following placement in foster care as a result of being
found to be a neglected child, as defined in subdivision (f) of this
section, provided that the respondent or respondents in each of the
foregoing proceedings was the same; or where the court finds by clear
and convincing evidence that the parent of a child in foster care has
refused and has failed completely, over a period of at least six months
from the date of removal, to engage in services necessary to eliminate
the risk of abuse or neglect if returned to the parent, and has failed
to secure services on his or her own or otherwise adequately prepare for
the return home and, after being informed by the court that such an
admission could eliminate the requirement that the local department of
social services provide reunification services to the parent, the parent
has stated in court under oath that he or she intends to continue to
refuse such necessary services and is unwilling to secure such services
independently or otherwise prepare for the child's return home;
provided, however, that if the court finds that adequate justification
exists for the failure to engage in or secure such services, including
but not limited to a lack of child care, a lack of transportation, and
an inability to attend services that conflict with the parent's work
schedule, such failure shall not constitute an aggravated circumstance;
or where a court has determined a child [five] THIRTY days old or young-
er was abandoned by a parent with an intent to wholly abandon such child
and with the intent that the child be safe from physical injury and
cared for in an appropriate manner.
S 4. Section 1042 of the family court act, as amended by chapter 41 of
the laws of 2010, is amended to read as follows:
S 1042. Effect of absence of parent or other person responsible for
care. If the parent or other person legally responsible for the child's
care is not present, the court may proceed to hear a petition under this
article only if the child is represented by counsel. The parent or other
person legally responsible for the child's care shall be served with a
copy of the order of disposition with written notice of its entry pursu-
ant to section one thousand thirty-six of this article. Within one year
of such service or substituted service pursuant to section one thousand
thirty-six of this article, the parent or other person legally responsi-
ble for the child's care may move to vacate the order of disposition and
schedule a rehearing. Such motion shall be granted on an affidavit show-
ing such relationship or responsibility and a meritorious defense to the
petition, unless THE CHILD HAS BEEN DECLARED AN ABANDONED INFANT PURSU-
ANT TO SECTION ONE THOUSAND FIFTY-ONE-A OF THIS ARTICLE AND THE PARENTS
HAVE FAILED TO ASSERT A CLAIM OF CUSTODY WITHIN THE TIME PERIOD SET
FORTH IN SUCH SECTION, OR the court finds that the parent or other
person willfully refused to appear at the hearing, in which case the
court may deny the motion.
S 5. Paragraph (ii) of subdivision (b) of section 1055 of the family
court act, as amended by section 18 of part A of chapter 3 of the laws
of 2005, is amended to read as follows:
(ii) (A) Upon placing a child under the age of one, who has been aban-
doned AS DEFINED IN PARAGRAPH (II) OF SUBDIVISION (F) OF SECTION ONE
THOUSAND TWELVE OF THIS ARTICLE, with a local commissioner of social
services, the court shall, where either of the parents do not appear
after due notice, include in its order of disposition pursuant to
section one thousand fifty-two of this part, a direction that such
commissioner shall promptly commence a diligent search to locate the
child's non-appearing parent or parents or other known relatives who are
S. 1904 3
legally responsible for the child, and to commence a proceeding to
commit the guardianship and custody of such child to an authorized agen-
cy pursuant to section three hundred eighty-four-b of the social
services law, six months from the date that care and custody of the
child was transferred to the commissioner, unless there has been commu-
nication and visitation between such child and such parent or parents or
other known relatives or persons legally responsible for the child. In
addition to such diligent search the local commissioner of social
services shall provide written notice to the child's parent or parents
or other known relatives or persons legally responsible as provided for
in this paragraph. Such notice shall be served upon such parent or
parents or other known relatives or persons legally responsible in the
manner required for service of process pursuant to section six hundred
seventeen of this act. Information regarding such diligent search,
including, but not limited to, the name, last known address, social
security number, employer's address and any other identifying informa-
tion to the extent known regarding the non-appearing parent, shall be
recorded in the uniform case record maintained pursuant to section four
hundred nine-f of the social services law.
(B) AN ABANDONED INFANT, AS DEFINED IN SUBDIVISION (F-1) OF SECTION
ONE THOUSAND TWELVE OF THIS ARTICLE, SHALL NOT BE SUBJECT TO THE
REQUIREMENTS OF SUBPARAGRAPH (A) OF THIS PARAGRAPH.
S 6. The family court act is amended by adding a new section 1031-a to
read as follows:
S 1031-A. ABANDONED INFANTS. (A) A PROCEEDING TO DETERMINE WHETHER A
CHILD IS AN ABANDONED INFANT SHALL BE COMMENCED WITHIN SIX BUSINESS DAYS
OF A LOCAL COMMISSIONER OF SOCIAL SERVICES RECEIPT OF NOTIFICATION THAT
A CHILD ALLEGED TO BE AN ABANDONED INFANT HAS BEEN FOUND IN THE JURIS-
DICTION OF THE LOCAL SOCIAL SERVICES AGENCY.
(B) THE PETITION SHALL ALLEGE THE FACTS SURROUNDING THE HISTORY AND
CURRENT CUSTODY OF THE CHILD, INCLUDING BUT NOT LIMITED TO:
(I) THE LOCATION THE CHILD WAS SURRENDERED OR ABANDONED;
(II) THE DATE OF SUCH OCCURRENCE;
(III) THE AFFIDAVIT OF THE LICENSED PHYSICIAN CERTIFYING SUCH PHYSI-
CIAN'S DETERMINATION AS TO THE AGE OF THE INFANT;
(IV) THE NAMES AND ADDRESSES OF ANY PROSPECTIVE FOSTER CARE OR ADOP-
TIVE HOMES; AND
(V) ANY OTHER INFORMATION THAT WOULD FACILITATE THE COURT'S DETERMI-
NATION.
(C) THE PETITION SHALL ALSO MAKE AN APPLICATION PURSUANT TO SECTION
ONE THOUSAND THIRTY-NINE-B OF THIS PART FOR THE COURT TO DETERMINE THAT
REASONABLE EFFORTS TO RETURN THE CHILD TO HIS OR HER HOME ARE NOT
REQUIRED BASED UPON A FINDING THAT THE CHILD HAS BEEN DECLARED AN ABAN-
DONED INFANT.
(D) THE COURT SHALL APPOINT AN ATTORNEY FOR THE CHILD TO REPRESENT THE
INTERESTS OF ANY CHILD NAMED IN A PETITION WHO IS ALLEGED TO BE AN ABAN-
DONED INFANT.
(E) NO PROCEEDING MAY CONTINUE UNDER THIS SECTION UNLESS THE COURT
ENTERS A FINDING:
(I) THAT THE CHILD WAS NOT MORE THAN THIRTY DAYS OLD AT THE TIME OF
THE ABANDONMENT; AND
(II) THAT THE PARENT LEFT THE CHILD IN A MANNER WHICH INDICATES INTENT
TO SURRENDER AND RELINQUISH ALL RESPONSIBILITY FOR THE CARE OF SUCH
CHILD.
S. 1904 4
(F) ALL AUTHORITY GRANTED TO THE LOCAL COMMISSIONER OF SOCIAL SERVICES
RELATING TO THE CARE AND CUSTODY OF THE INFANT PURSUANT TO THE SOCIAL
SERVICES LAW SHALL CONTINUE UNTIL FURTHER ORDER OF THE COURT.
S 7. The family court act is amended by adding a new section 1051-a to
read as follows:
S 1051-A. SUSTAINING OR DISMISSING A PETITION ALLEGING AN ABANDONED
INFANT. (A) IF FACTS SUFFICIENT TO SUSTAIN A PETITION UNDER SECTION ONE
THOUSAND THIRTY-ONE-A OF THIS ARTICLE ARE ESTABLISHED, THE COURT SHALL
ENTER AN ORDER FINDING THAT THE CHILD IS AN ABANDONED INFANT AND SHALL
STATE IN ITS ORDER:
(I) THAT, WITHIN A REASONABLE MEDICAL CERTAINTY, THE CHILD WAS NOT
MORE THAN THIRTY DAYS OLD WHEN HE OR SHE WAS ABANDONED;
(II) THE DATE THE CHILD WAS BORN, WITHIN A REASONABLE MEDICAL CERTAIN-
TY;
(III) THAT THE CHILD WAS LEFT IN A MANNER THAT INDICATED HIS OR HER
PARENT'S INTENT TO RELINQUISH RESPONSIBILITY FOR AND RIGHT TO THE CARE
AND CUSTODY OF SUCH CHILD;
(IV) THAT BASED UPON THE FINDINGS OF PARAGRAPHS (I) AND (III) OF THIS
SUBDIVISION, THE CHILD IS AN ABANDONED INFANT PURSUANT TO SUBDIVISION
(F-1) OF SECTION ONE THOUSAND TWELVE OF THIS ARTICLE; AND
(V) THAT BASED UPON SUCH FINDING THAT THE CHILD IS AN ABANDONED
INFANT, REASONABLE EFFORTS TO RETURN THE CHILD TO HIS OR HER HOME ARE
NOT REQUIRED.
(B) (I) IF FACTS SUFFICIENT TO SUSTAIN THE PETITION UNDER SECTION ONE
THOUSAND THIRTY-ONE-A OF THIS ARTICLE ARE NOT ESTABLISHED DUE TO THE
CHILD BEING MORE THAN THIRTY DAYS OLD AT THE TIME OF ABANDONMENT THE
COURT SHALL CONVERT THE PETITION TO A PROCEEDING TO DETERMINE NEGLECT
PURSUANT TO SECTION ONE THOUSAND THIRTY-ONE OF THIS ARTICLE AND SHALL
STATE ON THE RECORD THE GROUNDS FOR THE CONVERSION. TEMPORARY CUSTODY OF
THE CHILD SHALL CONTINUE UNTIL FURTHER ORDER OF THE COURT. THE COURT
SHALL ALSO REFER THE MATTER TO THE APPROPRIATE DISTRICT ATTORNEY'S
OFFICE AND DIRECT THE LOCAL COMMISSIONER OF SOCIAL SERVICES TO ORIGINATE
A PROCEEDING UNDER SECTION ONE THOUSAND THIRTY-ONE OF THIS ARTICLE WITH-
IN SEVEN DAYS.
(II) IF THE FACTS SUFFICIENT TO SUSTAIN THE PETITION UNDER THIS
SECTION ARE NOT ESTABLISHED DUE TO AN INABILITY TO DETERMINE THE INTENT
OF THE PARENT OR PARENTS THEN THE COURT SHALL CONVERT THE PETITION TO A
PROCEEDING TO DETERMINE NEGLECT PURSUANT TO SECTION ONE THOUSAND THIR-
TY-ONE OF THIS ARTICLE AND SHALL STATE ON THE RECORD THE GROUNDS FOR THE
CONVERSION. TEMPORARY CUSTODY OF THE CHILD SHALL CONTINUE UNTIL FURTHER
ORDER OF THE COURT. FOR THE PURPOSES OF THIS PARAGRAPH, ABANDONMENT IN
THE MANNER PRESCRIBED BY SECTION 260.00 OF THE PENAL LAW SHALL BE
PRESUMPTIVE EVIDENCE OF INTENT TO SURRENDER AND RELINQUISH ALL RESPONSI-
BILITY FOR THE CARE OF SUCH CHILD.
(C) THE COURT SHALL COMMENCE A DISPOSITIONAL HEARING IMMEDIATELY UPON
COMPLETION OF THE FACT-FINDING HEARING. AT THE CONCLUSION OF SUCH DISPO-
SITIONAL HEARING THE COURT SHALL ENTER AN ORDER OF DISPOSITION:
(I) PLACING THE CHILD IN THE CUSTODY OF THE LOCAL COMMISSIONER OF
SOCIAL SERVICES IN ACCORD WITH THE PROVISIONS OF SECTION ONE THOUSAND
FIFTY-FIVE OF THIS PART, UPON A DETERMINATION THAT:
(A) CONTINUATION IN THE CHILD'S HOME WOULD BE CONTRARY TO THE BEST
INTERESTS OF THE CHILD; AND
(B) WHERE THE COURT HAS DETERMINED THAT THE CHILD IS AN ABANDONED
INFANT, REASONABLE EFFORTS TO PREVENT OR ELIMINATE THE NEED FOR REMOVING
THE CHILD FROM HIS OR HER HOME OR TO MAKE IT POSSIBLE FOR THE CHILD TO
RETURN SAFELY TO HIS OR HER HOME ARE NOT REQUIRED;
S. 1904 5
(II) REQUIRING THE LOCAL COMMISSIONER OF SOCIAL SERVICES TO COMMENCE A
PROCEEDING TO COMMIT THE GUARDIANSHIP AND CUSTODY OF SUCH CHILD TO AN
AUTHORIZED AGENCY PURSUANT TO SECTION THREE HUNDRED EIGHTY-FOUR-B OF THE
SOCIAL SERVICES LAW IN SIXTY DAYS, PROVIDED THAT NO PETITION HAS BEEN
BROUGHT PURSUANT TO SECTION ONE THOUSAND SIXTY-ONE-A OF THIS ARTICLE.
UPON RECEIVING SUCH PETITION, THE COURT SHALL SCHEDULE A DATE CERTAIN
FOR THE FACT-FINDING AND DISPOSITIONAL HEARING REGARDING SUCH PETITION
WHICH SHALL BE NINETY DAYS FROM THE DATE THAT THE CHILD WAS FOUND TO BE
AN ABANDONED INFANT PURSUANT TO THIS SECTION;
(III) REQUIRING THE LOCAL COMMISSIONER OF SOCIAL SERVICES TO CAUSE
NOTICE OF THE PROCEEDING INSTITUTED PURSUANT TO SECTION THREE HUNDRED
EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW TO BE PUBLISHED IN ACCORDANCE
WITH THE PROVISIONS OF RULE THREE HUNDRED SIXTEEN OF THE CIVIL PRACTICE
LAW AND RULES IN THE COUNTY IN WHICH SUCH CHILD WAS FOUND. THE NOTICE
SHALL STATE:
(A) THE DATE, TIME AND PURPOSE OF THE PROCEEDING;
(B) THE DATE, TIME AND PLACE THAT THE ABANDONED INFANT WAS FOUND;
(C) A DESCRIPTION OF THE INFANT INCLUDING ITS APPROXIMATE DATE OF
BIRTH;
(D) THAT UPON FAILURE TO APPEAR, ALL PARENTAL RIGHTS OF THE PARENTS OF
SUCH ABANDONED INFANT SHALL BE TERMINATED;
(E) THAT A PARENT'S FAILURE TO APPEAR SHALL CONSTITUTE A DENIAL OF HIS
OR HER INTEREST IN THE CHILD, WHICH DENIAL SHALL RESULT, WITHOUT FURTHER
NOTICE, IN THE COMMITMENT OF THE CUSTODY AND GUARDIANSHIP OF THE CHILD
TO THE LOCAL COMMISSIONER OF SOCIAL SERVICES AND IN THE CHILD'S
ADOPTION; AND
(F) THE NAME, ADDRESS, AND TELEPHONE NUMBER OF THE PERSON DESIGNATED
BY THE LOCAL COMMISSIONER OF SOCIAL SERVICES TO CONTACT FOR INFORMATION
REGARDING SUCH CHILD.
S 8. The family court act is amended by adding a new section 1061-a to
read as follows:
S 1061-A. CUSTODY CLAIM BY PARENT OF AN ABANDONED INFANT. (A) AT ANY
TIME PRIOR TO THE CHILD BEING FREED FOR ADOPTION EITHER PARENT MAY
INSTITUTE AN ACTION TO ASSERT A CLAIM FOR CUSTODY OF THE CHILD DECLARED
AN ABANDONED INFANT PURSUANT TO SECTION ONE THOUSAND FIFTY-ONE-A OF THIS
ARTICLE. SUCH PROCEEDING SHALL BE BROUGHT WITHIN THE COUNTY WHERE SUCH
INFANT IS FOUND. SUCH PROCEEDING SHALL ORIGINATE BY PETITION AND SHALL
NAME THE LOCAL COMMISSIONER OF SOCIAL SERVICES, AND BOTH THE PARENTS, IF
KNOWN. IN THE EVENT THE WHEREABOUTS OF EITHER PARENT IS UNKNOWN THE
PETITION SHALL SO STATE AND THE COURT MAY PROCEED IN SAID PARENT'S
ABSENCE. A FILING OF A PETITION UNDER THIS SECTION SHALL TOLL THE TIME
FOR FREEING THE CHILD FOR ADOPTION AS PROVIDED FOR IN SUBDIVISION (A) OF
SECTION ONE THOUSAND FIFTY-ONE-A OF THIS ARTICLE. NOTICE SHALL BE
SERVED UPON THE ATTORNEY FOR THE CHILD APPOINTED PURSUANT TO SUBDIVISION
(D) OF SECTION ONE THOUSAND THIRTY-ONE-A OF THIS ARTICLE. IN DETERMINING
CUSTODY OF THE INFANT THE COURT SHALL CONSIDER THE BEST INTEREST OF THE
CHILD. PENDING A DETERMINATION IN THIS MATTER, THE INFANT SHALL REMAIN
IN THE CARE AND CUSTODY OF THE LOCAL COMMISSIONER OF SOCIAL SERVICES
UNLESS THE COURT DIRECTS OTHERWISE.
(B) IN THE EVENT THAT PETITIONER WHO ALLEGES TO BE A PUTATIVE FATHER,
RECITES IN A PETITION, FILED IN THE COUNTY WHEREIN HE RESIDES, FACTS
THAT ALLEGE HE IS THE FATHER OF AN INFANT WHOSE WHEREABOUTS ARE UNKNOWN
DUE TO THE CONCEALMENT AND PROBABLE ABANDONMENT OF THE RESPONDENT MOTH-
ER, THE PETITION MAY BE SERVED UPON THE MOTHER SEEKING AS ITS SOLE REME-
DY, THE LOCATION WHERE THE INFANT WAS ABANDONED. RESPONDENT MOTHER MAY
THEN AVOID APPEARING IN COURT BY FILING A SWORN STATEMENT WITHIN TEN
S. 1904 6
DAYS DISCLOSING THE LOCATION THE CHILD WAS ABANDONED. A COURT MAY
COMPEL, BY THE POWERS OF CONTEMPT, THE DISCLOSURE OF THE INFANT'S WHERE-
ABOUTS. UPON DISCLOSURE OF THE INFANT'S LOCATION THE PETITION TO ASSERT
THE CLAIM OF CUSTODY SHALL BE TRANSFERRED TO THE COUNTY WHEREIN THE
INFANT IS RESIDING FOR FURTHER PROCEEDINGS.
(C) THE RECORDS AND DISCOVERY PROCEDURES SET FORTH IN SECTION ONE
THOUSAND THIRTY-EIGHT OF THIS ARTICLE SHALL BE APPLICABLE TO A PROCEED-
ING UNDER THIS SECTION.
(D) FAILURE OF A PARENT TO ASSERT A CLAIM FOR CUSTODY UNDER THIS
SECTION WITHIN THE SPECIFIED TIME PERIOD SHALL IRREVOCABLY FREE THE
CHILD FOR ADOPTION AND ANY ALLEGED PARENT WILL LOSE ALL RIGHTS AT THE
END OF THE NINETY DAY PERIOD WITHOUT FURTHER NOTICE.
S 9. Paragraph (e) of subdivision 2 of section 111 of the domestic
relations law, as amended by chapter 375 of the laws of 1997, is amended
and a new paragraph (f) is added to read as follows:
(e) who has executed an instrument, which shall be irrevocable, deny-
ing the paternity of the child, such instrument having been executed
after conception and acknowledged or proved in the manner required to
permit the recording of a deed[.]; OR
(F) WHERE SUCH CHILD IS DETERMINED TO BE AN ABANDONED INFANT PURSUANT
TO SECTION ONE THOUSAND THIRTY-ONE-A OF THE FAMILY COURT ACT.
S 10. This act shall take effect on the sixtieth day after it shall
have become a law.