BILL NUMBER: S7446

SPONSOR: SALAZAR
 
TITLE OF BILL:

An act to amend the family court act, in relation to orders of
protection in child abuse and neglect proceedings in family court

This is one in a series of measures being introduced at the request of
the Acting Chief Administrative Judge upon the recommendation of her
Family Court Advisory and Rules Committee.

This measure would amend the opening paragraph of section 1056 of the
Family Court Act (FCA) and would add a new subdivision (4-a) to that
section to cure a serious problem confronting child victims of physical
and sexual violence in child protective cases: i.e. by extending the
extremely short duration of orders of protection against an individual
found to have abused or neglected a subject child who is not the child's
parent. The current maximum of two years in abuse and neglect cases is
far shorter than applicable periods for orders in family offense, custo-
dy, visitation, child support and paternity proceedings.

Section 1056(1) of the FCA authorizes an order of protection against
respondent parents, persons legally responsible for a child's care and
              

such persons' spouses in child neglect and abuse proceedings to last
only as long as a child protective dispositional orders of supervision.
See Matter of Pedro A. v. Gloria A., A.D.3d, 2019 (3rd Dept., Jan. 3,
2019); Matter of Makayla 1. v. Harold J., 162 A.D.3d 1139 (3rd Dept.,
2018); Matter of Nevaeh T., 151 A.D.3d 1766 (4th Dept., 2017); Matter of
Alexis A. (Richard V.), 143 A.D.3d 700 (2nd Dept., 2016); Matter of Kole
H11, 84 A.D.3d 1518 (3rd Dept., 2011); Matter of Patricia B., 61 A.D.3d
861 (2d Dept., 2009), lye. app.  denied, 13 N.Y.3d 713 (2009); Matter of
Andrew Y., 44 A.D.3d 1063 (2d Dept., 2007); Matter of Candace S.. 38
A.D.3d 786 (2d Dept., 2007), lye. app. denied, 9 N.Y.3d 805 (2007);
Matter ofAmanda WW, 43 A.D.3d 1256 (3d Dept., 2007); Matter of Collin
H., 28 A.D.3d 806 (3d Dept., 2006). Dispositions in child protective
cases include, inter alia, release of a child under supervision for one
year, subject to a maximum one-year extension. Thus, orders of
protection against a non-parent, or person legally responsible for the
child, may only last for one year, subject to a one-year extension even
in the most extreme cases of severe physical or sexual abuse. This
leaves children vulnerable to continued harm in their own homes, when
the Family Court's supervision ends. The FCA and Domestic Relations Law
authorize far longer orders with respect to identical allegations in
other categories of cases, e.g., family offense and custody proceedings.

This measure would remedy the problem. As the law does with orders of
protection in family offense cases, the new subdivision (4-a) provides
that orders of protection issued in child protective proceedings against
individuals who are not the parents of the child, but who were members
of the household at the time of the disposition, may last up to two
years or, upon findings of special circumstances, up to five years,
subject to an annual review. Similar to the definition of "aggravating
circumstances" in FCA § 827(a)(vii), "special circumstances" in FCA §
1056(1) would include:

injury or serious physical injury caused by the respondent to the
protected person or persons or any minor child, the use of a dangerous
instrument by the respondent against the protected persons or persons or
any minor child, a history of violations of orders of protection by the
respondent, prior convictions for crimes against the protected person or
persons or a minor child by the respondent, or the exposure by the
respondent of the protected person or persons or a minor child or any
family or household member to physical injury, or acts constituting a
sex offense as defined in subdivision (e) of section 1012 of the  
FAMILY
COURT ACT, and like incidents or behaviors and occurrences which to the
court constitute an immediate and ongoing danger to the protected person
or persons or a minor child or any family or household member.

This measure does not create a new class of orders of protection nor
does it impose any penalty or punitive action upon the respondent who
has been found to have committed the abuse or neglect after admission or
trial. Nor does it prevent a parent from contact with their biological
children. Provisions for time-limited orders subject to regular review
would, therefore, be consistent with the requirement for time-limited
orders with authorizations for periodic judicial review as established
by the Court of Appeals in Matter of Sheena D., 8 N.Y.3d 136 (2007).

Section 1056's current time limits stand in sharp contrast to the dura-
tion limits of family offense orders of protection, which were extended
by the Legislature in 2003 to up to two years or, if aggravating circum-
stances or a violation of an order of protection are found, up to five
years after the conclusion of the case. See FCA § 842. Orders of
protection in custody, visitation and other civil proceedings in Supreme
and Family Court may also last for specified periods until the youngest
child reaches age 18. Indeed, the Family Court in Child Protective
Services ex rel Ashley B. v. William Bä 7 Misc.3d 1017(A), (Fam. Ct.,
Suff. Co., 2005)(Unrep.), in issuing a longer order in admitted contra-
vention of the statutory language, stated:

The facts of this case involve a grandfather who sexually abused his
granddaughter. It is more likely than not that if not prevented from
being a part of this child's life he may appear at some social or family
function at a future date and the child and her siblings would not be
protected by a Family Court order of protection.

FCA § 115 provides that the Family Court has exclusive original juris-
diction over abuse and neglect proceedings as set forth in Article 10.
FCA § 1011 states that the Article is designed to help and protect chil-
dren from injury or mistreatment and to safeguard their physical, mental
and emotional well-being. Since the Court is statutorily empowered to
issue an order of protection until a child's 18th birthday in a
custody/visitation matter, it defies logic that the Court would not have
a similar power under a child abuse/neglect proceeding.

The law as it currently stands is ultimately contrary to the purpose
clause and spirit of the Family Court Act, which, in section 1011,
states that, consistent with due process, it is "designed to establish
procedures to help protect children from injury or mistreatment and to
help safeguard their physical, mental, and emotional well-being." As the
court held, in Child Protective Services ex rel Ashley B., supra, it
defies logic that in a custody case the court may issue an order of
protection that is valid until after a child turns 18 but is unable to
offer more than two years of protection in a case of serious physical or
sexual abuse.


Similar to Child Protective Services ex rel Ashley B., supra, the case
of Matter of Makayla 1. v. Harold J, supra, supports enactment of this
measure. Notwithstanding the Appellate Division's agreement in Makayla
I. with Family Court's conclusion that the best interests of two chil-
dren would be served by prohibiting contact by the grandfather with his
grandchild and step-grandchild in light of the finding of sexual abuse,
the court was constrained to limit the duration of the order of
protection regarding the grandchild to the one-year duration of the
supervision order. Underscoring the potentially dangerous nature of the
current statute, the court remanded the case regarding the order of
protection with respect to the step-grandchild for Family Court to
determine whether the grandfather was related by blood or marriage to a
"member of the child's household." Clearly both children required
protection from future sexual abuse and the legal provisions impeded the
court's ability to fulfill its mission of ensuring safety for both chil-
dren.

The majority of child abuse and serious neglect cases are never prose-
cuted in criminal court. Nor can these children rely on a parent to file
a family offense petition on their behalf, and even if one was filed,
they would have to testify in open court against their abuser, revictim-
izing them. The only protections these children have are left up to the
discretion of a Family Court Judge in a child welfare case. This law
would expand the length of time for that protection to allow the child
more time to heal and recover from the neglect and /or abuse.

Under current law, a household member living in the home of the child
who is the subject of a child abuse case, who has subjected the child to
sexual abuse or other severe forms of child abuse, may only be ordered
out of the home for the period of the disposition, typically one year, a
period that may be extended for only one additional year.  Incorporation
into FCA § 1056 of the potential protection of a period of two years or,
where special circumstances have been found, five years, with due proc-
ess provisions for annual judicial review, is essential to prevent
further injury to children and critically important to effectuate the
purpose clause of the child protective article of the FCA.

This measure, which would have no fiscal impact, would take effect 90
days after becoming law.

 
LEGISLATIVE HISTORY 2021-22:

OCA-52  
LEGISLATIVE HISTORY 2019-20:

OCA-18(R1)