S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7857
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 28, 2021
                                ___________
 
 Introduced by M. of A. BYRNES -- read once and referred to the Committee
   on Children and Families
 
 AN  ACT  to  amend  the social services law and the family court act, in
   relation to allowing previous investigations to be re-examined using a
   fair preponderance of the evidence standard

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subdivisions 6 and 7 of section 412 of the social services
 law, as amended by section 1 of part R of chapter  56  of  the  laws  of
 2020, are amended to read as follows:
   6.  An "unfounded report" means any report made pursuant to this title
 unless an investigation[: (i) commenced on or  before  December  thirty-
 first, two thousand twenty-one determines that some credible evidence of
 the  alleged abuse or maltreatment exists; or (ii) commenced on or after
 January first, two thousand twenty-two] determines that a  fair  prepon-
 derance  of the evidence of the alleged abuse or maltreatment exists; OR
 AN INVESTIGATION RE-OPENED ON OR AFTER JANUARY FIRST, TWO THOUSAND TWEN-
 TY-TWO DETERMINES THAT A FAIR  PREPONDERANCE  OF  THE  EVIDENCE  OF  THE
 ALLEGED  ABUSE OR MALTREATMENT DID NOT EXIST AT THE TIME OF THE ORIGINAL
 INVESTIGATION.
   7. An "indicated report" means a report made pursuant to this title if
 an investigation[: (i) commenced on or before December thirty-first, two
 thousand twenty-one  determines  that  some  credible  evidence  of  the
 alleged  abuse  or  maltreatment  exists;  or (ii) commenced on or after
 January first, two thousand twenty-two] determines that a  fair  prepon-
 derance  of the evidence of the alleged abuse or maltreatment exists; OR
 AN INVESTIGATION RE-OPENED ON OR AFTER JANUARY FIRST, TWO THOUSAND TWEN-
 TY-TWO DETERMINES THAT A FAIR  PREPONDERANCE  OF  THE  EVIDENCE  OF  THE
 ALLEGED ABUSE OR MALTREATMENT EXISTED AT THE TIME OF THE ORIGINAL INVES-
 TIGATION.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10965-01-1
              

 A. 7857                             2
 
   §  2.  The  opening  paragraph  of  paragraph  (a) of subdivision 5 of
 section 422 of the social services law, as amended by section 3 of  part
 R of chapter 56 of the laws of 2020, is amended to read as follows:
   Unless  an  investigation of a report conducted pursuant to this title
 [that is commenced on or  before  December  thirty-first,  two  thousand
 twenty-one  determines  that  there  is  some  credible  evidence of the
 alleged abuse or maltreatment or unless an  investigation  of  a  report
 conducted  pursuant  to this title that is commenced on or after January
 first, two thousand twenty-two] determines that there is a fair  prepon-
 derance  of the evidence that the alleged abuse or maltreatment occurred
 OR UNLESS AN INVESTIGATION OF A REPORT CONDUCTED PURSUANT TO THIS  TITLE
 THAT  IS  RE-OPENED  ON  OR AFTER JANUARY FIRST, TWO THOUSAND TWENTY-ONE
 DETERMINES THAT A FAIR PREPONDERANCE OF  THE  EVIDENCE  OF  THE  ALLEGED
 ABUSE OR MALTREATMENT OCCURRED, all information identifying the subjects
 of  the  report  and  other persons named in the report shall be legally
 sealed forthwith by the central register and any local child  protective
 services  which investigated the report. Such unfounded reports may only
 be unsealed and made available:
   § 3. Paragraph (c) of subdivision 5  of  section  422  of  the  social
 services  law,  as  amended  by section 4 of part R of chapter 56 of the
 laws of 2020, is amended to read as follows:
   (c) Notwithstanding any other provision of law, the office of children
 and family services may, in its discretion, grant a request  to  expunge
 an unfounded report where: (i) the source of the report was convicted of
 a  violation  of subdivision three of section 240.55 of the penal law in
 regard to such report; [or] (ii) the  subject  of  the  report  presents
 clear  and convincing evidence that affirmatively refutes the allegation
 of abuse or maltreatment; [provided however, that the absence of a  fair
 preponderance  of  the  evidence  supporting  the allegation of abuse or
 maltreatment shall not be the sole basis to expunge the report] OR (III)
 THE REPORT WAS RE-OPENED ON OR AFTER JANUARY FIRST, TWO  THOUSAND  TWEN-
 TY-TWO AND A DETERMINATION WAS MADE THAT THERE WAS NOT A FAIR PREPONDER-
 ANCE  OF THE EVIDENCE SUPPORTING THE ALLEGATION OF ABUSE OR MALTREATMENT
 AT THE TIME OF THE ORIGINAL INVESTIGATION.   Nothing in  this  paragraph
 shall  require  the  office  of  children and family services to hold an
 administrative hearing in deciding whether to  expunge  a  report.  Such
 office  shall make its determination upon reviewing the written evidence
 submitted by the subject of the report and any  records  or  information
 obtained  from  the state or local agency which investigated the allega-
 tions of abuse or maltreatment.
   § 4. Section 651-a of the family court act, as amended by  section  10
 of  part  R  of  chapter  56  of the laws of 2020, is amended to read as
 follows:
   § 651-a. Reports of child abuse and  maltreatment;  admissibility.  In
 any proceeding brought pursuant to this section to determine the custody
 or visitation of minors, a report made to the statewide central register
 of child abuse and maltreatment, pursuant to title six of article six of
 the social services law, or a portion thereof, which is otherwise admis-
 sible  as a business record pursuant to rule forty-five hundred eighteen
 of the civil practice law and rules shall not be admissible in evidence,
 notwithstanding such  rule,  unless  an  investigation  of  such  report
 conducted  pursuant  to  title six of article six of the social services
 law [commenced on or before December thirty-first, two thousand  twenty-
 one  has  determined that there is some credible evidence of the alleged
 abuse or  maltreatment,  or  unless  an  investigation  of  such  report
 conducted  pursuant  to  title six of article six of the social services

 A. 7857                             3

 law commenced on or after January first, two thousand twenty-two] deter-
 mines that there is a fair preponderance of the evidence of the  alleged
 abuse  or  maltreatment,  OR  UNLESS  AN  INVESTIGATION  OF  SUCH REPORT
 CONDUCTED  PURSUANT  TO  TITLE SIX OF ARTICLE SIX OF THE SOCIAL SERVICES
 LAW THAT IS RE-OPENED ON OR AFTER JANUARY FIRST, TWO THOUSAND TWENTY-ONE
 DETERMINES THAT A FAIR PREPONDERANCE OF  THE  EVIDENCE  OF  THE  ALLEGED
 ABUSE  OR MALTREATMENT OCCURRED, that the subject of the report has been
 notified that the report is indicated. In addition, if such  report  has
 been reviewed by the state commissioner of social services or his desig-
 nee  and has been determined to be unfounded, it shall not be admissible
 in evidence. If such report has been so reviewed and has been amended to
 delete any finding, each such deleted finding shall not  be  admissible.
 If the state commissioner of social services or his designee has amended
 the  report to add any new finding, each such new finding, together with
 any portion of the original report not deleted by  the  commissioner  or
 his  designee, shall be admissible if it meets the other requirements of
 this section and is otherwise admissible as a business record. If such a
 report, or portion thereof, is admissible in evidence but  is  uncorrob-
 orated,  it  shall  not be sufficient to make a fact finding of abuse or
 maltreatment in such proceeding. Any other evidence tending  to  support
 the reliability of such report shall be sufficient corroboration.
   § 5. Subparagraph (i) of paragraph (a) of subdivision 8 of section 422
 of  the  social  services  law,  as amended by chapter 12 of the laws of
 1996, is amended and a  new  subparagraph  (vi)  is  added  to  read  as
 follows:
   (i)  At any time subsequent to the completion of the investigation but
 in no event later than ninety days after the subject of  the  report  is
 notified  that  the  report is indicated, EXCEPT WHERE THE INVESTIGATION
 WAS COMPLETED PRIOR TO JANUARY FIRST, TWO THOUSAND TWENTY-TWO,  AND  THE
 SUBJECT  REQUESTS THAT SUCH REPORT BE RE-OPENED PURSUANT TO SUBPARAGRAPH
 (VI) OF THIS PARAGRAPH, the subject  may  request  the  commissioner  to
 amend  the  record of the report. If the commissioner does not amend the
 report in accordance with such request within ninety days  of  receiving
 the request, the subject shall have the right to a fair hearing, held in
 accordance  with paragraph (b) of this subdivision, to determine whether
 the record of the report in the central register should  be  amended  on
 the  grounds that it is inaccurate or it is being maintained in a manner
 inconsistent with this title.
   (VI) IN CASES WHERE THE INVESTIGATION WAS COMPLETED PRIOR  TO  JANUARY
 FIRST,  TWO  THOUSAND TWENTY-TWO AND IT WAS DETERMINED AT A FAIR HEARING
 THAT THERE WAS CREDIBLE EVIDENCE IN THE RECORD TO FIND THAT THE  SUBJECT
 COMMITTED  AN ACT OR ACTS OF CHILD ABUSE OR MALTREATMENT, THE SUBJECT OF
 SUCH REPORT MAY REQUEST THAT SUCH INVESTIGATION BE RE-OPENED AND RE-EXA-
 MINED USING A STANDARD OF  A FAIR PREPONDERANCE OF THE EVIDENCE  IN  THE
 RECORD  TO FIND THAT THE SUBJECT COMMITTED AN ACT OR ACTS OF CHILD ABUSE
 OR MALTREATMENT WITHIN ONE YEAR OF THE EFFECTIVE DATE OF  THIS  SUBPARA-
 GRAPH.
   § 6. Items (I) and (II) of clause (A) of subparagraph (i) and subpara-
 graph  (ii)  of  paragraph  (e) of subdivision 1 of section 424-a of the
 social services law, as amended by section 9 of part R of chapter 56  of
 the laws of 2020, are amended to read as follows:
   (I)  the time for the subject of the report to request an amendment OR
 RE-OPENING of the record of the report pursuant to subdivision eight  of
 section  four  hundred  twenty-two  has expired without any such request
 having been made; or

 A. 7857                             4
 
   (II) such request was made within such time and a fair hearing regard-
 ing the request has been finally determined by the commissioner and  the
 record  of  the  report has not been amended OR RE-OPENED to unfound the
 report or delete the person as a subject of the report; and
   (ii) If the subject of an indicated report of child abuse or maltreat-
 ment  has  not requested an amendment OR RE-OPENING of the record of the
 report and an inquiry is made to  the  office  of  children  and  family
 services  pursuant  to  this  subdivision  concerning the subject of the
 report, such office shall, as expeditiously as possible  but  within  no
 more than ten working days of receipt of the inquiry, determine whether,
 in  fact,  the person about whom an inquiry is made is the subject of an
 indicated report. Upon making a determination that the person about whom
 the inquiry is made is the subject of an indicated report of child abuse
 and maltreatment, the office of children and family services shall imme-
 diately send a written request to the child protective service or  state
 agency  which was responsible for investigating the allegations of abuse
 or maltreatment for all records, reports  and  other  information  main-
 tained  by  the  service  or state agency on the subject. The service or
 state agency shall, as expeditiously as possible but within no more than
 twenty working days of receiving  such  request,  forward  all  records,
 reports  and  other  information it maintains on the indicated report to
 the office of children and family services,  including  a  copy  of  any
 petition  or  court  order based on the allegations that were indicated.
 Where a proceeding pursuant to article ten of the family  court  act  is
 pending based on the same allegations that were indicated, the office of
 children  and  family services shall stay determination of whether there
 is a fair preponderance of the evidence to support the indication  until
 the  disposition  of  such family court proceeding. Unless such determi-
 nation has been stayed, the  office  of  children  and  family  services
 shall,  within  fifteen  working days of receiving such records, reports
 and other information from the child protective service or state agency,
 review all records, reports and  other  information  in  its  possession
 concerning  the subject and determine whether there is a fair preponder-
 ance of the evidence to find that the subject had committed the  act  or
 acts of child abuse or maltreatment giving rise to the indicated report.
   §  7.  This  act  shall  take  effect on the same date and in the same
 manner as part R of chapter 56 of the laws of 2020 and  shall  apply  to
 all  reports  filed in the statewide central register of child abuse and
 maltreatment.