NY State Senate Bill 2015-S7705

Senate Bill S7705

2015-2016 Legislative Session

Provides for the protection of the children of parents who abuse other children for whom they are legally responsible

download bill text pdf

Archive: Last Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 07, 2016	referred to children and families delivered to assembly passed senate
Jun 01, 2016	advanced to third reading
May 25, 2016	2nd report cal.
May 24, 2016	1st report cal.1123
May 12, 2016	referred to children and families

Votes

- Jun 7, 2016 - Floor Vote
  S7705
  
  61
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  2
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 7, 2016
      
      aye (61)
      
      Addabbo Jr.
      
      Akshar
      
      Amedore
      
      Avella
      
      Bonacic
      
      Boyle
      
      Breslin
      
      Carlucci
      
      Comrie
      
      Croci
      
      DeFrancisco
      
      Dilan
      
      Espaillat
      
      Farley
      
      Felder
      
      Flanagan
      
      Funke
      
      Gallivan
      
      Gianaris
      
      Golden
      
      Griffo
      
      Hamilton
      
      Hannon
      
      Hassell-Thompson
      
      Hoylman-Sigal
      
      Kaminsky
      
      Kennedy
      
      Klein
      
      Krueger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Latimer
      
      Little
      
      Marcellino
      
      Marchione
      
      Martins
      
      Montgomery
      
      Murphy
      
      Nozzolio
      
      O'Mara
      
      Ortt
      
      Panepinto
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Sanders Jr.
      
      Savino
      
      Serino
      
      Serrano
      
      Seward
      
      Squadron
      
      Stavisky
      
      Stewart-Cousins
      
      Valesky
      
      Venditto
      
      Young
      
      excused (2)
      
      Diaz
      
      Persaud
  May 24, 2016 - Children And Families Committee Vote
  S7705
  
  7
  
  Aye
  
  0
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: May 24, 2016
      
      aye (7)
      
      Avella
      
      Bonacic
      
      Montgomery
      
      Persaud
      
      Savino
      
      Serino
      
      Young

2015-S7705 (ACTIVE) - Details

Current Committee:: Assembly Children And Families
Law Section:: Family Court Act
Laws Affected:: Amd §§1012 & 1046, Fam Ct Act; amd §384-b, Soc Serv L
Versions Introduced in 2017-2018 Legislative Session:: S1690

2015-S7705 (ACTIVE) - Summary

Provides for the protection of the children of parents who abuse other children for whom they are legally responsible.

2015-S7705 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S7705

 TITLE OF BILL :  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

 PURPOSE :

To provide for the protection of the children of parents who abuse
other children for whom they are legally responsible.

 SUMMARY OF PROVISIONS :

Section 1. Amends subdivision (j) of section 1012 of the family court
act to expand the definition of "aggravated circumstances" to include
a person legally responsible for a child.

Section 2. Amends paragraph (i) of subdivision (a) of section 1046 of
the family court act to include "aggravated circumstances" in addition
to proof of abuse or neglect as admissible evidence in legal
proceedings to determine if other children - who are the legal
responsibility of the perpetrator of aggravated abuse - to be in
imminent risk of neglect, abuse, or severe abuse.

Section 3. Amends paragraph (e) of subdivision 4 of section 384-b of
the social services law to allow for a finding of severe abuse against

a person who is not the parent of the target child in order to protect
the children of that person; to allow that a termination of parental
rights petition may be filed against a parent who has severely abused
a child that they were not a parent of, but were legally responsible
for, as it relates to freeing their own child for adoption; or to
simply terminate the rights of that person to that child but without
freeing the child for adoption.

Section 4. Amends subdivision 8 of section 384-b of the social
services law to expand the definition of "severely abused" to include
a person who is "legally responsible" for a child.

Section 5 is the enacting clause.

 JUSTIFICATION :

In cases where children are murdered or suffer severe physical or
sexual abuse, the perpetrator is often a person who is not the child's
biological parent but a "person legally responsible" as that term is
defined in FCA § 1012 (g). These individuals are often a stepparent or
a paramour of one of the birth parents. While the law permits an
action of abuse to be brought against such a person, the law is
unclear if an aggravated circumstance of severe abuse petition can be
brought. It is further unclear if the actual children of the abuser -
who may be half siblings to the abused child - can be protected from
their abusive parent. This is because the legal definition of
aggravated severe abuse is found in SSL § 384-b, which relates only to
parents as it describes the grounds of termination of parental rights.

In order to protect children from those who have severely abused
(including murdered) a child they were responsible for, the
appropriate legal definitions must be clarified. Specifically, it must
be clear that if a person has severely abused a child, then their own
children can be subjects of derivative legal proceedings to help
better protect those children.

Further, social services law must clarify that in such situations,
there are grounds to terminate the parental rights of a person to
their own children if they severely abused, including killed, a child
that they were legally responsible for. In such cases, the court
should be permitted to terminate the parental rights of a severe
abuser - including when the subject child is not in foster care, and
in cases where the court is only terminating the parental rights of
the severely abusive parent.

These cases, while small in number, are the ones that make the
headlines in this state and result in great frustration to the law
enforcement, social services district and the courts who scramble to
try to protect the children of a person who severely abused a child
they were responsible for although not the parent. Many Judges have
recognized the loophole in the law, in fact calling for the
legislature to resolve the problem. See Matter of Meridth DS 13 Misc
3d 898 (Chemung County Family Court 2009), Matter of Nicholas S., 107
AD3d 1307, foot note 3 (3rd Dept. 2013), Matter of Leonard V 95 AD3d
1343 (2nd Dept. 2012)

 LEGISLATIVE HISTORY :

2015: S.3830 (Felder); Passed the Senate
2014: 5.7213 (Felder); Passed the Senate

 FISCAL IMPLICATIONS :

To be determined.

 EFFECTIVE DATE :
This act shall take effect the ninetieth day after is shall have
become law.

2015-S7705 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7705

                            I N  S E N A T E

                              May 12, 2016
                               ___________

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:

  Section 1. 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 AND PROVIDED FOR in subdivi-
sion eight of section three hundred eighty-four-b of the social services
law, BY A PARENT OR BY A PERSON LEGALLY RESPONSIBLE FOR  SUCH  CHILD  OR
ANOTHER  CHILD;  or  where  a child has subsequently been found to be an
abused child, as defined in paragraph (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,  BEING  EITHER  THE  CHILD'S PARENT OR A PERSON LEGALLY
RESPONSIBLE FOR SUCH CHILD OR ANOTHER CHILD, in each  of  the  foregoing
proceedings was the same; or where the court finds by clear and convinc-
ing  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  admis-
sion 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 inde-
pendently or otherwise prepare for the child's  return  home;  provided,
however,  that if the court finds that adequate justification exists for

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD15409-01-6

S. 7705                             2

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 sched-
ule,  such  failure  shall not constitute an aggravated circumstance; or
where a court has determined a child five days old or younger was  aban-
doned  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  2.  Paragraph  (i) of subdivision (a) of section 1046 of the family
court act, as added by chapter 962 of the laws of 1970,  is  amended  to
read as follows:
  (i)  proof  of  the  AGGRAVATED CIRCUMSTANCES, abuse or neglect of one
child shall be admissible  evidence  on  the  issue  of  the  AGGRAVATED
CIRCUMSTANCES,  abuse  or  neglect  of  any other child of, or the legal
responsibility of, the respondent; and
  S 3. Paragraph (e) of subdivision 4 of section  384-b  of  the  social
services  law,  as  amended  by section 56 of part A of chapter 3 of the
laws of 2005, is amended to read as follows:
  (e) The parent or parents, whose consent to the adoption of the  child
would otherwise be required in accordance with section one hundred elev-
en  of  the  domestic  relations law, severely or repeatedly abused such
child OR ANY CHILD FOR WHOM SUCH PARENT IS OR HAS BEEN A PERSON  LEGALLY
RESPONSIBLE,  AS  DEFINED  IN  SUBDIVISION  (G)  OF SECTION ONE THOUSAND
TWELVE OF THE FAMILY COURT  ACT.  Where  a  court  has  determined  that
reasonable  efforts  to reunite the child with his or her parent are not
required, pursuant to the family court act or this chapter, OR WHERE THE
CHILD WAS SEVERELY OR REPEATEDLY ABUSED IS NOT THE CHILD OF THE RESPOND-
ENT IN THE TERMINATION PROCEEDING,  a  petition  to  terminate  parental
rights  on the ground of severe abuse as set forth in subparagraph (iii)
of paragraph (a) of subdivision eight of this section may be filed imme-
diately upon such determination.
  S 4. Subdivision 8 of section 384-b of the  social  services  law,  as
amended by chapter 7 of the laws of 1999, subparagraph (ii) of paragraph
(a)  and  subparagraph (i) of paragraph (b) as amended by chapter 430 of
the laws of 2013, clause (A) of subparagraph (iii) of paragraph  (a)  as
amended  by chapter 460 of the laws of 2006, paragraph (f) as amended by
section 58 of part A of chapter 3 of the laws of  2005,  is  amended  to
read as follows:
  8.  (a)  For the purposes of this section a child is "severely abused"
by his or her parent OR BY A RESPONDENT WHO IS OR WAS A  PERSON  LEGALLY
RESPONSIBLE,  AS  DEFINED  IN  SUBDIVISION  (G)  OF SECTION ONE THOUSAND
TWELVE OF THE FAMILY COURT ACT, FOR A CHILD, if (i) the child  has  been
found  to be an abused child as a result of reckless or intentional acts
of the parent OR SUCH PERSON committed under  circumstances  evincing  a
depraved  indifference  to  human life, which result in serious physical
injury to the child as defined in subdivision ten of  section  10.00  of
the penal law; or
  (ii)  the  child  has  been found to be an abused child, as defined in
paragraph (iii) of subdivision (e) of section ten hundred twelve of  the
family court act, as a result of such parent's OR PERSON LEGALLY RESPON-
SIBLE'S  acts;  provided, however, the respondent must have committed or
knowingly allowed to be committed a felony sex  offense  as  defined  in
sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67,
130.70,  130.75, 130.80, 130.95 and 130.96 of the penal law and, for the
purposes of this section the corroboration requirements contained in the
penal law shall not apply to proceedings under this section; or

S. 7705                             3

  (iii) (A) the parent of such child OR A PERSON LEGALLY RESPONSIBLE, AS
DEFINED IN SUBDIVISION (G) OF SECTION ONE THOUSAND TWELVE OF THE  FAMILY
COURT  ACT,  has been convicted of murder in the first degree as defined
in section 125.27, murder in the second degree  as  defined  in  section
125.25,  manslaughter  in the first degree as defined in section 125.20,
or manslaughter in the second degree as defined in section  125.15,  and
the  victim of any such crime was another child of the parent or another
child for whose care such parent is or has been legally  responsible  as
defined  in subdivision (g) of section one thousand twelve of the family
court act, or another parent of the child, unless the  convicted  parent
was  a victim of physical, sexual or psychological abuse by the decedent
parent and such abuse was a factor in causing the homicide; or has  been
convicted  of  an attempt to commit any of the foregoing crimes, and the
victim or intended victim was the child or another child of  the  parent
or  another  child  for  whose  care  such parent is or has been legally
responsible as defined in subdivision (g) of section one thousand twelve
of the family court act, or another parent  of  the  child,  unless  the
convicted parent was a victim of physical, sexual or psychological abuse
by  the  decedent  parent  and  such  abuse  was a factor in causing the
attempted homicide; (B) the parent of such child has been  convicted  of
criminal  solicitation  as defined in article one hundred, conspiracy as
defined in article one hundred five or criminal facilitation as  defined
in article one hundred fifteen of the penal law for conspiring, solicit-
ing  or  facilitating  any  of  the  foregoing crimes, and the victim or
intended victim was the child or another child of the parent or  another
child for whose care such parent is or has been legally responsible; (C)
the  parent  of  such  child has been convicted of assault in the second
degree as defined in section 120.05, assault  in  the  first  degree  as
defined  in section 120.10 or aggravated assault upon a person less than
eleven years old as defined in section 120.12 of the penal law, and  the
victim of any such crime was the child or another child of the parent or
another  child for whose care such parent is or has been legally respon-
sible; or has been convicted of an attempt to commit any of the  forego-
ing  crimes,  and the victim or intended victim was the child or another
child of the parent or another child for whose care such  parent  is  or
has  been  legally responsible; or (D) the parent of such child has been
convicted under the law in any other jurisdiction of  an  offense  which
includes  all of the essential elements of any crime specified in clause
(A), (B) or (C) of this subparagraph; and
  (iv) IN THE CASE WHERE THE CHILD, WHO IS THE SUBJECT OF THE  PETITION,
IS IN FOSTER CARE, the agency has made diligent efforts to encourage and
strengthen  the parental relationship, including efforts to rehabilitate
the respondent, when such efforts will not be detrimental  to  the  best
interests  of the child, and such efforts have been unsuccessful and are
unlikely to be successful in the foreseeable future. Where a  court  has
previously  determined  in  accordance  with  this chapter or the family
court act that reasonable efforts to make it possible for the  child  to
return  safely to his or her home are not required, the agency shall not
be required to  demonstrate  diligent  efforts  as  set  forth  in  this
section.
  (b) For the purposes of this section a child is "repeatedly abused" by
his  or  her  parent  OR  BY A RESPONDENT WHO IS OR WAS A PERSON LEGALLY
RESPONSIBLE AS DEFINED IN SUBDIVISION (G) OF SECTION ONE THOUSAND TWELVE
OF THE FAMILY COURT ACT, FOR A CHILD, if:
  (i) the child has been found to be an abused child, (A) as defined  in
paragraph  (i)  of  subdivision (e) of section ten hundred twelve of the

S. 7705                             4

family court act, as a result of such parent's OR PERSON LEGALLY RESPON-
SIBLE'S acts; or (B) as defined in paragraph (iii) of subdivision (e) of
section ten hundred twelve of the family court act, as a result of  such
parent's  acts; provided, however, the respondent must have committed or
knowingly allowed to be committed a felony sex  offense  as  defined  in
sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67,
130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law; and
  (ii)  (A)  the child or another child for whose care such parent is or
has been legally responsible has been previously found, within the  five
years  immediately  preceding  the initiation of the proceeding in which
such abuse is found, to be an abused child, as defined in paragraph  (i)
or  (iii) of subdivision (e) of section ten hundred twelve of the family
court act, as a result of such parent's acts; provided, however, in  the
case  of a finding of abuse as defined in paragraph (iii) of subdivision
(e) of section ten hundred twelve of the family court act the respondent
must have committed or knowingly allowed to be committed  a  felony  sex
offense  as  defined in sections 130.25, 130.30, 130.35, 130.40, 130.45,
130.50, 130.65, 130.67, 130.70, 130.75 and 130.80 of the penal  law,  or
(B)  the  parent  has  been  convicted  of a crime under section 130.25,
130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67,  130.70,  130.75
or  130.80 of the penal law against the child, a sibling of the child or
another child for whose care such parent is or has been legally  respon-
sible,  within the five year period immediately preceding the initiation
of the proceeding in which abuse is found; and
  (iii) the agency has made diligent efforts, to encourage and strength-
en the parental relationship, IF THE RESPONDENT IS THE  CHILD'S  PARENT,
including efforts to rehabilitate the respondent, when such efforts will
not  be detrimental to the best interests of the child, and such efforts
have been unsuccessful and are unlikely to be successful in the foresee-
able future. Where a court has previously determined in accordance  with
this  chapter or the family court act that reasonable efforts to make it
possible for the child to return safely to  his  or  her  home  are  not
required,  the  agency  shall  not  be  required to demonstrate diligent
efforts as set forth in this section.
  (c) Notwithstanding any other provision of law,  the  requirements  of
paragraph (g) of subdivision three of this section shall be satisfied if
one  of  the  findings  of abuse pursuant to subparagraph (i) or (ii) of
paragraph (b) of this subdivision is found to  be  based  on  clear  and
convincing evidence.
  (d) A determination by the court in accordance with article ten of the
family court act based upon clear and convincing evidence that the child
was  a severely abused child as defined in subparagraphs (i) and (ii) of
paragraph (a) of this subdivision shall establish that the child  was  a
severely  abused  child in accordance with this section. Such a determi-
nation by the court in accordance with article ten of the  family  court
act  based  upon a fair preponderance of evidence shall be admissible in
any proceeding commenced in accordance with this section.
  (e) A determination by the court in accordance with article ten of the
family court act based upon clear and convincing evidence that  a  child
was abused (A) as defined in paragraph (i) of subdivision (e) of section
ten hundred twelve of the family court act, as a result of such parent's
acts; or (B) as defined in paragraph (iii) of subdivision (e) of section
ten hundred twelve of the family court act, as a result of such parent's
acts; provided, however, the respondent must have committed or knowingly
allowed  to  be  committed  a  felony sex offense as defined in sections
130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67,  130.70,

S. 7705                             5

130.75 and 130.80 of the penal law shall establish that the child was an
abused  child for the purpose of a determination as required by subpara-
graph (i) or (ii) of paragraph (b) of this subdivision. Such a  determi-
nation  by  the court in accordance with article ten of the family court
act based upon a fair preponderance of evidence shall be  admissible  in
any proceeding commenced in accordance with this section.
  (f)  Upon  a finding pursuant to paragraph (a) or (b) of this subdivi-
sion that the child has been severely or repeatedly abused by his or her
parent OR BY A PERSON LEGALLY RESPONSIBLE, AS DEFINED BY SUBDIVISION (G)
OF SECTION ONE THOUSAND TWELVE OF THE FAMILY COURT ACT, FOR A CHILD, the
court shall enter an order of  disposition  either  (i)  committing  the
guardianship  and  custody  of  the  child  OR ANY CHILD OF SUCH PARENT,
pursuant to this section, or (ii) suspending judgment in accordance with
section six hundred thirty-three of the family court act, upon a further
finding, based on clear and convincing, competent, material and relevant
evidence introduced in a dispositional hearing, that the best  interests
of the child require such commitment or suspension of judgment, OR (III)
TERMINATING  THE  RIGHTS  OF  ONE  PARENT WHERE THE CHILD WILL BE IN THE
CUSTODY OF ANOTHER PARENT, A  RELATIVE  OR  THE  LOCAL  COMMISSIONER  OF
SOCIAL  SERVICES.  Where  the  disposition  ordered is the commitment of
guardianship and custody pursuant to  this  section,  an  initial  freed
child  permanency  hearing  shall  be  completed pursuant to section one
thousand eighty-nine of the family court act.
  (G) A PETITION FILED PURSUANT TO THIS SUBDIVISION MAY  ALSO  BE  FILED
WHERE  A  CHILD  IS  THE  CHILD  OF  A RESPONDENT WHO SEVERELY ABUSED OR
REPEATEDLY ABUSED A CHILD FOR WHOM  HE  OR  SHE  WAS  A  PERSON  LEGALLY
RESPONSIBLE,  AS  DEFINED  IN  SUBDIVISION  (G)  OF SECTION ONE THOUSAND
TWELVE OF THE FAMILY COURT ACT.
  (H) A PETITION MAY BE FILED PURSUANT  TO  THIS  SUBDIVISION  WHEN  THE
SEVERELY  OR  REPEATEDLY  ABUSED CHILD IS NOT IN FOSTER CARE AND/OR WHEN
ONLY ONE OF SUCH CHILD'S PARENTS IS A RESPONDENT.
  S 5. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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