STATE OF NEW YORK
________________________________________________________________________
8505
IN ASSEMBLY
January 17, 2014
___________
Introduced by M. of A. LENTOL -- read once and referred to the Committee
on Children and Families
AN ACT to amend the social services law, the criminal procedure law and
the civil practice law and rules, in relation to assisting and
protecting victims of domestic violence, child abuse and child neglect
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative intent. Presently, a person convicted of
2 harassment, which is only a violation under the penal law, enjoys an
3 automatic seal on his or her criminal record. Harassment often includes
4 matters of domestic violence. In subsequent proceedings between the
5 victim of the violence and the convicted aggressor, the record of the
6 criminal court, the police arrest and investigation, and the aggressor's
7 conviction, admissions or orders of protection in the criminal matter
8 are not available to the victim to prove that the domestic violence
9 occurred; making it difficult for the victim to protect himself or
10 herself against further aggression or obtain justice in family court or
11 other civil proceedings. This act will allow the victim or victim's
12 representative to obtain a judicial subpoena releasing such record to
13 the family or supreme court.
14 Likewise, where an investigation by child protective services "indi-
15 cates" the abuse or neglect of a child, the state law allows the subject
16 of the report the ability to amend the report to "unfounded" without any
17 notice or opportunity to object to the amendment being given to the
18 victim of the abuse or neglect. As a result, if amended, even by
19 default, the victim or co-parent cannot access the record of the inves-
20 tigation in subsequent family or supreme court proceedings. Further,
21 the person previously "indicated" can use the amended report as a weapon
22 against the opposing party to show that their allegation, or belief in
23 the allegation, was frivolous. Even where the "indicated" finding is
24 properly amended to "unfounded," and the accused was frivolously victim-
25 ized by the allegations of their opposing party, the reporting law
26 shields the identity of the false reporter. This act, therefore,
27 protects the victims of child abuse, child neglect and wrongful accusa-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08931-01-3
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1 tions of child abuse and neglect by opening the records of the central
2 registry by judicial subpoena.
3 Finally, the state legislature enacted a hearsay exception to a
4 child's statements of abuse or neglect in section 1065 of the family
5 court act. Justifiably, if not technically correct, the state's appel-
6 late courts have expanded such section's exception to custody, divorce
7 and child support proceedings. However, this exception is not currently
8 available in every matter where domestic violence, child abuse or child
9 neglect may be at issue (i.e. surrogate court matters, tort actions, or
10 family offenses). This act allows the judges, parens patria, to provide
11 further protection to children in consideration of their particular
12 emotional immaturity and fragility, while preventing convictions on only
13 the allegations of a child.
14 § 2. Subparagraphs (iv) and (v) of paragraph (a) of subdivision 5 of
15 section 422 of the social services law, as amended by chapter 555 of the
16 laws of 2000, are amended to read as follows:
17 (iv) to the subject of the report; [and]
18 (v) to a district attorney, an assistant district attorney, an inves-
19 tigator employed in the office of a district attorney, or to a sworn
20 officer of the division of state police, of a city, county, town or
21 village police department or of a county sheriff's office when such
22 official verifies that the report is necessary to conduct an active
23 investigation or prosecution of a violation of subdivision three of
24 section 240.55 of the penal law; and
25 (vi) on judicial subpoena of the family or supreme court where the
26 protection of a child or a false allegation of child abuse or neglect is
27 at issue and the subject of the report is a party to an action therein.
28 § 3. Subdivision 7 of section 422 of the social services law, as
29 amended by chapter 434 of the laws of 1989, is amended to read as
30 follows:
31 7. At any time, a subject of a report [and], other persons named in
32 the report or their guardians or custodians, and the family or supreme
33 court by judicial subpoena and where the protection of a child or false
34 allegations of child abuse or neglect is at issue and the subject of the
35 report is a party to an action therein, may receive, upon request, a
36 copy of all information contained in the central register; provided,
37 however, that the commissioner is authorized, except when the request is
38 made by judicial subpoena and the reporter is a party to the action, to
39 prohibit the release of data that would identify the person who made the
40 report or who cooperated in a subsequent investigation or the agency,
41 institution, organization, program or other entity where such person is
42 employed or with which he is associated, which he reasonably finds will
43 be detrimental to the safety or interests of such person.
44 § 4. Subparagraph (i) of paragraph (a) and subparagraphs (i) and (ii)
45 of paragraph (b) of subdivision 8 of section 422 of the social services
46 law, as amended by chapter 12 of the laws of 1996, are amended and a new
47 paragraph (f) is added to read as follows:
48 (i) At any time subsequent to the completion of the investigation but
49 in no event later than ninety days after the subject of the report is
50 notified that the report is indicated the subject may request the
51 commissioner to amend the record of the report. The commissioner shall
52 mail to the victim's parent, guardian or custodian notice of the
53 subject's request to amend and the basis upon which the amendment is
54 sought. Such parent, guardian or custodian may object to the amendment
55 within thirty days of notice by mailing his or her objection to the
56 commissioner. If the commissioner does not amend the report in accord-
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1 ance with such request within ninety days of receiving the request, the
2 subject shall have the right to a fair hearing, held in accordance with
3 paragraph (b) of this subdivision, to determine whether the record of
4 the report in the central register should be amended on the grounds that
5 it is inaccurate or it is being maintained in a manner inconsistent with
6 this title.
7 (i) If the department, within ninety days of receiving a request from
8 the subject that the record of a report be amended, does not amend the
9 record in accordance with such request, the department shall schedule a
10 fair hearing and shall provide notice of the scheduled hearing date to
11 the subject, the statewide central register [and, as appropriate, to],
12 the child protective service or the state agency which investigated the
13 report, the adult victim, or the minor victim's parent, guardian or
14 custodian. Such parent, guardian or custodian may appear in person, or
15 by an attorney, to object to the requested amendment and present
16 witnesses, sworn statements and other evidence for presentation to the
17 hearing officer.
18 (ii) The burden of proof in such a hearing shall be on the child
19 protective service or the state agency which investigated the report,
20 the adult victim, or the minor victim's parent, guardian or custodian,
21 as the case may be. In such a hearing, the fact that there is a family
22 court finding of abuse or neglect against the subject in regard to an
23 allegation contained in the report shall create an irrebuttable presump-
24 tion that said allegation is substantiated by some credible evidence.
25 (f) An adult victim, or the minor victim's parent, guardian or custo-
26 dian may seek to vacate an amendment made pursuant to paragraph (e) of
27 this subdivision within one year of the effective date of this paragraph
28 or knowledge that such an amendment has been made without such parent,
29 guardian or custodian receiving notice of hearing or the subject's
30 request to amend. The adult victim, or the minor victim's parent, guard-
31 ian or custodian seeking to vacate an unnoticed amendment shall state
32 with particularity the date that they became aware that an amendment was
33 made and the evidence he or she will present that demonstrates the
34 commissioner's error in amendment. The commissioner shall schedule a
35 rehearing date, and shall immediately inform the subject of the formerly
36 indicated report, the adult victim or minor victim's parent, guardian or
37 custodian, and the child protective service or the state agency that
38 investigated the report.
39 § 5. Paragraph (d) of subdivision 1 of section 160.55 of the criminal
40 procedure law, as amended by section 74 of subpart B of part C of chap-
41 ter 62 of the laws of 2011, is amended to read as follows:
42 (d) the records referred to in paragraph (c) of this subdivision shall
43 be made available to the person accused or to such person's designated
44 agent, and shall be made available to (i) a prosecutor in any proceeding
45 in which the accused has moved for an order pursuant to section 170.56
46 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex
47 parte motion in any superior court, if such agency demonstrates to the
48 satisfaction of the court that justice requires that such records be
49 made available to it, or (iii) any state or local officer or agency with
50 responsibility for the issuance of licenses to possess guns, when the
51 accused has made application for such a license, or (iv) the New York
52 state department of corrections and community supervision when the
53 accused is under parole supervision as a result of conditional release
54 or parole release granted by the New York state board of parole and the
55 arrest which is the subject of the inquiry is one which occurred while
56 the accused was under such supervision, or (v) the probation department
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1 responsible for supervision of the accused when the arrest which is the
2 subject of the inquiry is one which occurred while the accused was under
3 such supervision, or (vi) a police agency, probation department, sher-
4 iff's office, district attorney's office, department of correction of
5 any municipality and parole department, for law enforcement purposes,
6 upon arrest in instances in which the individual stands convicted of
7 harassment in the second degree, as defined in section 240.26 of the
8 penal law, committed against a member of the same family or household as
9 the defendant, as defined in subdivision one of section 530.11 of this
10 chapter, and determined pursuant to subdivision eight-a of section
11 170.10 of this title, or (vii) upon receipt of a judicial subpoena, the
12 family or supreme court in a matter where domestic violence, the
13 protection of a child, or a false allegation of domestic violence, child
14 abuse or neglect is at issue and the defendant is a party to the action
15 therein; and
16 § 6. The civil practice law and rules is amended by adding a new
17 section 4549 to read as follows:
18 § 4549. Evidence of child's statements regarding domestic violence,
19 abuse or neglect. 1. Previous statements made by a child relating to any
20 allegations of domestic violence or child abuse or neglect shall be
21 generally admissible in evidence, but if uncorroborated, such statement
22 shall not be sufficient to make a fact-finding of abuse or neglect. Any
23 other evidence tending to support the reliability of the child's previ-
24 ous statements shall be generally admissible and sufficient corrob-
25 oration. The testimony of the child shall not be necessary to make a
26 fact-finding of domestic violence, abuse or neglect.
27 2. The presiding judge may, however, issue an order prohibiting the
28 divulging of the contents of such statements to any entity or person
29 other than the court, litigants, their counsel and any witness deemed
30 necessary to the proceedings.
31 § 7. This act shall take effect immediately.
