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A02325 Memo:

BILL NUMBER:A2325

TITLE OF BILL:  An act to amend the family court act and the social
services law, in relation to abandoned infants

PURPOSE OR GENERAL IDEA OF BILL: To better implement the Abandoned
Infant Protection Act of 2000 by clarifying certain provisions of the
family court act and social services law in order to protect abandoned
newborn infants.

SUMMARY OF SPECIFIC PROVISIONS: Section one amends section 1012 of the
family court act by amending paragraph (ii) of subdivision (f) and
subdivision (j) and adding a new subdivision (1). Paragraph (ii) of
subdivision (f) clarifies that the term "neglected child" does not
include an abandoned infant as defined subdivision (1) of section 1012
of the family court act. Subdivision (j) amends the definition of
"aggravated circumstances" to include where a court has determined a
child thirty days or younger 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. New
subdivision (1) defines "abandoned infant."

Section two amends article ten of the family court act by adding a new
section 1031-a which outlines the preliminary procedures to be taken
when a child who appears to be an abandoned infant is found. The
commissioner of the local social services department shall immediately
take protective custody of the infant. The local commissioner of
social services (local commissioner) shall commence a court proceeding
at once to determine whether the child is an abandoned infant. The
information to be included in the petition is provided. Upon receiving
the petition, the court shall appoint an attorney for the child to
represent the alleged abandoned infant. If the parents of the infant
are unknown, the court shall upon receipt of the petition, hold a
hearing to determine whether the child appears to have been abandoned
in accordance with the definition of abandoned infant provided in
subdivision (1) of section 1012 of the family court act. If at the
hearing the court determines that the circumstances of the abandonment
meet the definition of abandoned infant in said subdivision (1), the
court shall order that the local commissioner shall not be required to
commence a diligent search to locate the parents or other relatives of
the child and shall require the local commissioner to cause notice of
the proceeding to be published in the county in which the infant was
found at least once in each of three successive weeks. Service by
publication is complete on the twenty-first day after the day of first
publication. The information the notice shall contain is provided. In
addition, the court, in determining whether removal or continuing the
removal of the child is necessary to avoid imminent risk to the
child's life or health, shall consider and determine it 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, if the
child was removed from his home prior to the date of the hearing,
where appropriate, that reasonable efforts were made to make it
possible for the child to safely return home. If the court determines
that reasonable efforts to prevent or eliminate the need for removal
of the child from the home were not made but that the lack of such


efforts was appropriate under the circumstances, the court order shall
include such finding.

In the event that a person claiming to be the parent of the infant
comes forward, the local commissioner of social services shall
immediately provide written notification to both the court and the
assigned attorney for the child and cause a test to be conducted to
confirm maternity or paternity. If maternity or paternity is
confirmed, the local commissioner shall notify the court, which shall
order an investigation pursuant to section 1034(1) of the family court
act. The existing order of custody of the child to the local
commissioner shall continue pending the result of the investigation.
If there are grounds pursuant to subdivision (e) or (f) of section
1012 of the family court act to file a petition to determine abuse or
neglect pursuant to section 1031 of the family court act, the local
commissioner shall file such petition within three court days of the
completion of the investigation. The parent or parents shall be
informed of the date and the time that the petition shall be filed,
the address of the court where the petition shall be filed, the right
of the parent to be present at any hearing held and the right to be
represented by counsel. Upon such filing, a hearing pursuant to
section 1027 of the family court act shall be held forthwith. If no
such grounds exist, the court shall dismiss the petition to determine
whether the infant is an abandoned infant and order that the child be
returned to his or her parent or parents.

Section three amends subdivision (a) of section 1039-b of the family
court act, as added by chapter 7 of the laws of 1999, regarding the
filing by the social services official of a motion requesting a
finding that reasonable efforts to return an abandoned infant to his
or her home are no longer required.

Section four amends subdivision (a) of section 1041 of the family
court act, as amended by chapter 1015 of the laws of 1972, by
providing that when a child is alleged to be an abandoned infant, a
parent or person legally responsible for such child does not have to
appear in court nor shall it be necessary to serve such person with a
copy of the petition, but the provisions of section 1031-a(d)(1)(3)
shall apply.

Section five amends section 1044 of the family court act to provide
that the definition of "fact-finding hearing" includes a hearing to
determine whether a child is an abandoned infant as defined in the
family court act.

Section six amends the family court act by adding a new section 1051-a
to provide that in a fact finding hearing, the court shall determine
that the child is an abandoned infant if facts sufficient to
constitute clear and convincing evidence are established to find that
the child was thirty days old or younger when abandoned and that the
child was left in a manner that indicated the parent's intent to
wholly abandon such child by relinquishing and foregoing
responsibility for and rights to the care and custody of such child
with the intent that the child be safe from physical injury and cared
for in an appropriate manner. Sufficient evidence of the child's age
and date of birth and intent to wholly abandon the child are: an
affidavit or other official record of determination of a qualified


health care practitioner who examined the child that such child was
thirty days old or younger when abandoned and the date of birth of the
child to a reasonable degree of certainty; an affidavit or official
record, including a police report or testimony regarding the manner of
abandonment of the child; and an affidavit or official record of the
result of inquiries made to the putative father registry and to local
law enforcement officials regarding a missing person report. If the
court sustains the petition and finds that the child is an abandoned
infant, the court shall make a finding and issue a court order that
includes certain information as outlined in the bill. Should the facts
be insufficient to sustain the petition, the court shall convert the
petition to a proceeding to determine abuse or neglect pursuant to
section 1031 of the family court act and shall state on the record the
grounds for conversion. The court shall determine whether temporary
custody of the child to the local commissioner of social services
shall continue until further order of the court. In determining
whether removal or continuing the 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, if the child was removed from his home
prior to the date of the hearing, where appropriate, that reasonable
efforts were made to make it possible for the child to safely return
home. If the court determines that reasonable efforts to prevent or
eliminate the need for removal of the child from the home were not
made but that the lack of such efforts was appropriate under t he
circumstances, the court order shall include such finding.

The court shall commence a dispositional hearing immediately after the
fact-finding hearing when the petition has been sustained and enter an
order of disposition that includes certain information as outlined in
the bill, including placing the child in the custody of the local
commissioner, who shall make reasonable efforts to place the child
into a pre-adoptive home. The local commissioner shall be required to
commence a proceeding to commit the guardianship and custody of the
infant to an authorized agency within sixty days and if the initial
permanency hearing has not been held, to set a date certain for an
initial permanency hearing.

Section seven amends paragraph (i) of subdivision (a) of section 1055
of the family court act, as amended by section 12 of part G of chapter
58 of the laws of 2010, by adding that when custody is being
determined for an abandoned infant, the court may place the child in
the custody of certain named persons or a duly authorized association,
agency, society or institution suitable for the placement of a child.

Section eight amends 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, by providing that a diligent search of the
child's parents is not necessary if it has been determined that such
child is an abandoned infant.

Section nine amends subparagraph (i) of paragraph 1 of subdivision (b)
of section 1089 of the family court act, as amended by chapter 437 of
the laws of 2006, by providing that the requirement to serve notice on


the parents of a child does not apply when such child has been alleged
or found to be an abandoned infant and the identity of the parent or
parents is unknown.

Section ten amends subdivision (b) of section 1089 of the family court
act by adding new paragraphs 3 and 4. New paragraph 3 provides that
where a child who is not free for adoption has been alleged or found
to be an abandoned infant and the identity of such infant's parents is
not known, the local commissioner of social services shall cause
notice of the permanently hearing for an abandoned infant to be
published in the county in which such child was found. The notice
shall contain certain information as provided in the bill. New
paragraph 4 provides that if, within six months after the initial
publication of notice of a proceeding to determine whether a child is
an abandoned infant, a person claiming to be the mother or father of
an infant who has been alleged or found to be an abandoned infant
comes forward and the maternity or paternity of such person is
confirmed by a test to confirm maternity or paternity, the court shall
order an investigation pursuant to section 1034(1) of the family court
act. If there are grounds pursuant to subdivision (e) or (f) of
section 1012 of the family court act to file a petition to determine
abuse or neglect pursuant to section 1031 of the family court act,
the, local commissioner shall file such petition within three court
days. Upon such filing, a hearing pursuant to section 1027 of the
family court act shall be held forthwith. If no such grounds exist,
the court shall hold a best interests hearing as to whether it is in
the best interests of the child to return the child to the child's
home or to continue the custody of the child with the local
commissioner. Except for good cause shown, such hearing shall be
commenced within three court days, The custody of the child with the
local commissioner shall continue pending the result of the best
interests hearing. If maternity or paternity is confirmed and the
child is free for adoption, the court shall vacate the order
committing guardianship and custody of the child.

Section eleven amends section 352 of the social services law by adding
a new subdivision 4 which provides that the requirement to locate the
parents of a child does not apply when such child is an abandoned
infant.

Section twelve adds a new paragraph (g) to subdivision 1 of section
352-a of the social services law relating to non-marital children.
New paragraph (g) provides that when such child is an abandoned infant
there shall be no requirement to establish paternity nor to locate the
parents of such infant.

Section thirteen amends subdivision 2 of section 371 of the social
services law, as amended by chapter 666 of the laws of 1976, and adds
a new subdivision 2-a. Subdivision 2, which defines "abandoned child,"
is amended by providing gender-neutral language. New subdivision 2-a
defines "abandoned infant" by referencing the appropriate sections of
both the family court act and the social services law.

Section fourteen amends paragraph (ii) of subdivision 4-a of section
371 of the social services law, as added by chapter 782 of the laws of
1971, by including "an abandoned child" and "an abandoned infant" in


the definition of "neglected child" under section 371 of the social
services law.

Section fifteen amends the opening paragraph and paragraphs (b), (c)
and (d) of subdivision 1 of section 372 of the social services law by
providing that in the instance of abandoned infants, certain
information needed, such as the date of birth and apparent age of the
infant, certain records of the full names and places of birth of the
infant's parents, a certified copy of the court order determining that
the child was an abandoned infant, and the religious faith of the
infant's parents and the child, if known, shall be recorded by an
alternate method as designated in this section.

Section sixteen amends paragraph (e) of subdivision 3 of section 384-b
of the social services law, as amended by section 55 of part A of
chapter 3 of the laws of 2005, by providing that certain procedures
with regard to the notice petition for a termination hearing shall not
apply when the subject child is an abandoned infant. However, where
such child is an abandoned infant and the identity of the parents of
the child is unknown, the court shall require the local commissioner
of social services to publish notice of the hearing in the county in
which such child was found for at least thirty days.  The information
to be included in the publication is provided. If at any time prior to
or subsequent to the entry of an order committing the guardianship and
custody of the child pursuant to section 384-b of the social services
law but not later than six months after the initial publication of
notice of a proceeding pursuant to section 1031-a of the family court
act, the maternity or paternity of a person claiming to be the mother
or father of the abandoned infant is confirmed by a test to be
conducted to confirm maternity or paternity, the proceeding shall be
stayed pending an investigation pursuant to section 1034(1) of the
family court act. Within three court days of the completion of the
investigation, if there are grounds pursuant to subdivision (e) or (f)
of section 1012 of the family court act to file a petition to
determine abuse or neglect pursuant to section 1031 of the family
court act, the local commissioner shall file such petition, or if
there are no such grounds, the court shall hold a hearing as to the
best interests of the child. The custody of the child with the local
commissioner shall continue pending the result of the beset interests
hearing.

Section seventeen amends subparagraph (iii) of paragraph (1) of
subdivision 3 of section 384-b of the social services law, as amended
by chapter 145 of the laws of 2000, and adds a new subparagraph (vi).
Subparagraph (iii) provides that the date of the child's entry into
foster care is the earlier of sixty days after the date on which the
child is removed from the home or the date the child is found by a
court to be an abandoned infant or an abused or neglected child. New
subparagraph (vi) provides that a petition for the termination of
parental rights shall be filed within sixty days after a court
determines that the infant is an abandoned infant pursuant to section
1051-a of the family court act.

Section eighteen amends paragraphs (d) and (e) of subdivision 4 of
section 384-b of the social services law, paragraph (d) amended by
chapter 739 of the laws of 1981 and paragraph (e) as amended by
section 56 of part A of chapter 3 of the laws of 2005, and adds a new


paragraph (f) that provides that guardianship and custody of such
child shall be granted when a parent or parents abandoned a child
thirty days old or younger in a manner that indicated the intent of
the parent or parents to wholly relinquish and forgo responsibility
for and rights to the care and custody of such child with the intent
that the child be safe from physical injury and cared for in an
appropriate manner, and has not communicated with the child or agency
for a period of two months from the date of abandonment.

Section nineteen amends subdivision 5 of section 384-b of the social
services law by adding a new paragraph (c) that provides that when a
child is an abandoned infant, the provisions of subdivision 5 which
provide certain criteria for determining that a child is "abandoned"
shall not apply.

Section twenty amends the social services law by adding a new section
392-a which provides special provisions regarding an abandoned infant
and procedures to be followed by the local commissioner of social
services, including publicizing the abandonment of the child through
local media outlets and specifically in the community where the
abandonment occurred, and the availability of prevention services, and
referral and counseling services to victims of domestic violence.  The
section provides that if the maternity or paternity of a person
claiming to be the mother or father of the infant is confirmed by a
test to confirm maternity or paternity, the local commissioner shall
conduct an investigation pursuant to section 1034(1) of the family
court act. If there are no grounds pursuant to subdivision (e) or (f)
of section 1012 of the family court act, the local commissioner shall
withdraw the petition to determine whether a child is an abandoned
infant; if there are grounds pursuant to subdivision (e) or (f) of
section 1012, the local commissioner shall file a petition to
determine abuse or neglect pursuant to section 1031 of the family
court act within three court days of the completion of the
investigation.

Section twenty-one amends section 372-g of the social services law, as
added by chapter 156 of the laws of 2000, to add that the office of
children and family services shall, in implementing a public
information program to inform the public regarding the provisions of
the Abandoned Infant Protection Act, inform the public regarding the
availability of safe placement alternatives for newborn infants,
including termination of parental rights and adoption procedures, and
that an abandoned infant is not a neglected child under the social
services law or the family court act. Such public information program
shall also inform the general public of the availability of prevention
services, and referral and counseling services to victims of domestic
violence. The office of children and family services shall develop and
implement the public information program within amounts appropriated
or available by the state.

Section twenty-two provides the effective date.

JUSTIFICATION: Currently, all fifty states have laws, often termed
Safe Haven or Baby Moses legislation, to protect infants who are
safely abandoned. In 2000, New York enacted the Abandoned Infant
Protection Act (the Act) in order to allow a person to safely abandon
an infant not more than five days old with an appropriate person or in


a suitable location without the fear of criminal prosecution. Enacted
to prevent infanticides throughout the state, the 2000 Act amended the
social services law to require the Office of Children and Family
Services (OCFS) to develop and implement a public information program
to inform the general public of the new law. When originally enacted,
the Act also amended the penal law to provide an affirmative defense
to criminal prosecution for both the felony crime of abandonment of a
child and the misdemeanor crime of endangering the welfare of a child
where a person leaves an infant not more than five days old with an
appropriate person or in a suitable location and promptly notifies an
appropriate person of the child's location and does so with the intent
that the child be safe from physical injury and cared for in an
appropriate manner. The penal law was amended in 2010 to eliminate
criminal liability altogether where a person leaves an infant with an
intent to wholly abandon the child by relinquishing responsibility for
and rights to the care and custody of the child, with the intent that
the child be safe from physical injury and cared for in an appropriate
manner, and leaves the infant with an appropriate person or in a
suitable location and promptly notifies an appropriate person of the
child's location, and the child is not more than thirty days old.

The Act, however, made no changes to the family court act or to the
social services law. Therefore, under current law, a local social
services district is still required to search for the parents of the
abandoned infant and bring them before the court in an abandonment
proceeding. This leads to the unintended consequence of parents who
fear being identified abandoning their babies in an unsafe manner,
leading to injury to, and sometimes the death of, the infants. In
addition, while attempts are made to identify the infant's parents,
abandoned infants languish in foster care while the filing of a
petition to terminate parental rights and to free the infant for
adoption is delayed.

This legislation seeks to amend the relevant provisions in social
services law and the family court act to provide for the safe and
anonymous abandonment of an infant thirty days or younger, increased
from five days or younger, as is provided under penal law.  In
addition, the bill will amend social services law and the family court
act to provide that upon a court determination that a child appears to
have been abandoned in accordance with the definition of an abandoned
infant, the local commissioner of social services shall not be
required to determine the identity of the person who abandons an
infant as provided and to set forth the process that must be taken by
local social services districts to proceed with termination of
parental rights proceedings and permanency hearings.

This legislation protects parental rights by providing a mechanism
through which a parent may come forward to establish maternal or
paternal rights at any time after abandonment until six months after
the first publication of the notice of the proceeding to determine
whether a child is an abandoned infant. The bill requires that upon
receipt of notice that a child who appears to be an abandoned infant
has been found, the local commissioner of social services shall
commence a proceeding to determine whether a child is an abandoned
infant. If the identity of the parents of the child is unknown, the
court must first hold a hearing to determine whether the child appears
to have been abandoned in accordance with the definition of an


abandoned infant. If at such hearing the court determines that the
circumstances of the abandonment meet the definition of abandoned
infant, the court shall require the local commissioner to cause notice
through publication in a newspaper in each of three successive weeks
in the county in which the child was found that an abandoned infant
was found, the date, time and place the abandoned infant was found, a
description of the infant including the approximate date of birth, and
that if a parent does not appear at the proceeding the child may be
deemed an abandoned infant and placed into the custody of the local
commissioner. In addition, the local commissioner is required to
publicize the abandonment of the child through local media outlets and
specifically in the community where the abandonment occurred.
Furthermore, in order to sustain a petition alleging that a child is
an abandoned infant, inquiries must have been made to the putative
father registry and to local law enforcement officials regarding a
missing person report. It should be noted, however, that in the ten
years since the Act was passed, we have learned that attempts at
reunification of the parent with the abandoned infant is most often
not in the best interest of that infant.

By increasing the age of an infant who is abandoned from five days or
younger to thirty days or younger, the legislation provides a parent
more time to consider whether to abandon his or her child and also to
come forward to establish parental rights should he or she have second
thoughts after abandoning the child. Increasing the age will also make
the age at which an infant is considered to be safely abandoned under
civil law consistent with the age at which an infant is considered to
be safely abandoned under criminal law and which allows the abandoning
parent not to be subject to criminal prosecution.

Without amending current law, local social services districts will
continue to search for the parent who abandons his or her child,
causing parents to fear being identified. That fear serves only to
discourage a woman from safely abandoning her infant. When a woman
wants to abandon her infant but fears not just prosecution, but also
serious repercussions from family or perhaps even an abusive spouse,
or deportation, she is more likely to abandon her infant in a way that
results in injury to, or even a tragic death for, that infant.

Furthermore, if a woman has concealed her pregnancy from the father,
her family, school or employer, she may attempt to give birth without
the assistance of a physician or other health care practitioner under
less than optimal conditions, thereby endangering her own health and
safety.

In 2006, in the New York City area alone, twice as many dead newborns
were found abandoned as in the preceding year. Moreover, it is not
only confusing but also misleading to conduct a public information
program that "offers hope" to a mother and her baby, announcing that a
woman can safely abandon her baby "anonymously" when in fact current
law requires social service districts to search for the parent who
abandoned the child and subjects such parent to a neglect proceeding
when found. We have inadvertently set a trap for parents who feel
compelled to abandon their babies and want to do so in a safe manner,
and at the same time made it practically impossible for parents to
abandon their babies in a safe manner if they want to remain
anonymous. In fact, because social services districts are required by


law to search for the abandoning parents and do so with the assistance
of law enforcement, including by questioning hospital physicians and
other personnel, it has been reported that hospital physicians and
staff are no longer willing to assist pregnant women with their births
because they fear being interrogated by law enforcement conducting an
investigation into the abandonment of a child and being compelled,
under threat of prosecution, to disclose the identity of a mother or
other information relating to the birth of her baby. It is incongruous
to provide on the one hand that a mother who safely abandons her child
may not be subject to criminal prosecution, yet is sought and if
found, subject to a comprehensive series of intrusive civil
proceedings. Discovery of the abandoning mother's identity may also
endanger the safety of the mother.

This catch-22 faced by mothers is highlighted by a case in which a
newborn baby was found inside a shoe box, abandoned in the lobby of an
apartment building in Hempstead, New York. Although it appeared that
the parent of the newborn intended to leave the baby safely and
anonymously, her attempt at anonymity has been thwarted and precisely
what the mother likely feared has occurred: she became the subject of
a very public media campaign requesting information about her. It
cannot be denied that the public search for the mother in Hempstead
will serve as a stark illustration for pregnant women of what is in
store for them should they want, to safely abandon their babies. It
then becomes less difficult to imagine why a woman, who does not want
or feels she cannot keep her newborn, might believe she has no choice
other than to abandon her baby in a place or in a manner in which her
identity cannot be traced, i.e. in a dumpster or an alley.

By clarifying that social services districts need not, after
procedural safeguards have been met, search for a parent who safely
abandons his or her child or reunite the abandoned infant with his or
her parent before proceeding with a permanency plan for that infant,
we will better achieve the goal of protecting the safety and welfare
of such infants. Moreover, we will encourage women to give birth
safely, thereby ensuring the health and safety of the mothers.

In the ten-year period since the Act was passed, there have been one
hundred eighteen babies who have been safely abandoned pursuant to the
Act and one hundred twelve adoptions of those babies. The Act was
enacted to save the lives of unwanted, newborn infants. This
legislation furthers the intent of the Act and facilitates its
implementation by removing unintended barriers to its use, as well as
enables the earlier placement of abandoned infants in a permanent
home.

PRIOR LEGISLATIVE HISTORY: A.336, 2011 and 2012 referred to judiciary.
Same as S.2712,2011 and 2012 referred to judiciary. Similar to
A.6092D, 2009 and 2010, referred to judiciary. Similar to
A.10528/5.7983, 2008 referred to judiciary. Same as S.7983, 2008
committed to rules.

FISCAL IMPLICATION: Positive impact on both the state and local social
services districts.

EFFECTIVE DATE: This act shall take effect on the one hundred
eightieth day after it shall have become law.

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