NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6715A
SPONSOR: Weinstein TITLE OF BILL: An act to amend the family court act and the domestic
relations law, in relation to non-respondent parents in child protective
and permanency proceedings in family court
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.
Recent years have witnessed a sea-change in attitudes and policies
concerning the role of non-respondent parents in child abuse and neglect
proceedings under Article 10 of the Family Court Act: viz., recognition
that the other parents - those not charged in child protective
proceedings - may, along with their extended families, provide vital
resources for their children. While child protective officials once
ignored or discouraged non-respondent parents from participating in
child protective proceedings concerning their children, those officials,
inspired by substantial statutory changes during the past decade, now
reach out to such parents to engage them in planning for their chil-
dren's care. While in the past, this category was often an absent
parent who had little relationship with the children, more recently, in
light of cases, such as Nicholson v. Scoppetta, 3 N.Y.3d 357 (2004),
non-respondent parents frequently include custodial and other parents,
who are involved in their children's lives but are not deemed culpable
in their neglect or abuse.
As a statute drafted before these changes in attitude and policy, Arti-
cle 10, not surprisingly, contains gaps and anomalies with respect to
the treatment of non-respondent parents. This measure seeks to rectify
some of the more obvious among them with respect to non-respondent
parents and to enable their greater participation in abuse or neglect
proceedings, as well as permanency hearings, concerning their children.
This measure also expands the options available to Family Court judges
to enable them to craft appropriate orders respecting the rights of
non-respondent parents while assuring the safety and well being of chil-
dren who are the subjects of the proceedings.
First, this measure would add definitions of "parent," "relative" and
"suitable person" to Family Court Act § 1012. The definition of "parent"
clarifies the range of persons who may assert a parent's superior rights
to care and custody of a child under State and Federal law. See, e.g.,
Bennett v. Jeffreys, 40 N.Y.2d 543 (1976) (state may not deprive parent
of custody of child absent extraordinary circumstances); Prince v.
Massachusetts, 321 U.S. 158 (1944) ("It is cardinal with us that the
custody, care and nurture of the child reside first in the parents . . .
").
Second, Family Court Act § 1017 would be amended to clarify that certain
additional individuals should be identified, located and notified in
writing of the pendency of child protective proceedings, although they
do not have the rights of legal parents under State law. Analogous to
the definition of "notice" fathers in Domestic Relations Law §§
111-a(2)(f) and (h), this category would include persons who are listed
on the putative father registry, have a pending paternity petition, or
have been identified by the child's parent in a written sworn statement.
To ensure uniformity in the information provided to those persons enti-
tled to notice, this measure provides that the content of the notice
will be set by a uniform statewide court rule.
Inclusion of these clarifications would establish a structure in Article
10 consistent with the framework applicable to adoption proceedings
under the Domestic Relations Law, but expanded to be gender-neutral. A
"parent" under this measure would be analogous to a "consent" father,
whose consent is required for an adoption, and an additional individual
identified would be analogous to a "notice" father, who merely has a
right to be heard as to the child's best interests. See Domestic
Relations Law §§ 111, 111-a. By doing so, it also would expand the scope
of potential resources for children who have been removed from their
homes, and provide an opportunity for non-respondent, non-adjudicated
birth fathers to take necessary steps to establish their paternity and
plan for their children. Significantly, the measure requires the local
social services department investigating possible resources for the
child to report the results of the investigations to the court and all
parties, including the attorney for the child.
The measure further defines "relative" as a person who is related to the
child by blood, marriage or adoption, but who is not the child's. This
distinction between "parents" and "relatives" is significant as the
rights of each to the care and custody of children are not identical
under Article 10 of the Family Court Act. Likewise, the measure includes
"suitable person" in the definition section, since such an individual
has rights distinct from those of parents, relatives and possible, but
not adjudicated, parents.
The measure clarifies the language of Family Court Act § 1017 by refer-
ring specifically to "non-respondent parent, relative or suitable
person" as potential resources a court may consider after determining
that a child must be removed from his or her home. These resources may
be utilized either through temporary, direct releases under section
1017(2)(a)(ii) or through temporary orders of Family Court Act Article 6
custody or (in the case of relatives or suitable persons) guardianship
under Family Court Act § 1017(2)(a)(i). In all such cases, as in custody
petitions under Article six, the court must review the orders of
protection and sex offender registries, as well as child protective
petitions and Family Court warrants regarding any such resources. Simi-
lar alternatives are provided for direct releases and Family Court Act
Article 6 custody at the final dispositional stage of the Article 10
proceeding.
Moreover, section 1017(3) would be amended to require that, where a
child is temporarily released to a non-respondent parent or temporarily
placed in the care of a relative or suitable person, the caretaker must
submit to the court's jurisdiction with respect to cooperation in meet-
ing the needs of the child. Such temporary order may require such
person, inter alia, to make the child available for court-ordered visi-
tation with parents, siblings or others, as well as for appointments
with and visits by the caseworker and for appointments with the child's
attorney and clinicians and programs providing services to the child.
The measure requires the court order of release or care under Article 10
to specify the terms of such cooperation, as well as any actions that
the social services agency must take. The order may also require cooper-
ation regarding appointments with, and visits by, caseworkers, including
visits in the home and in-person contact with the child protective agen-
cy, social services official or duly authorized person. The measure thus
strikes a proper balance between intervention to ensure the child's
well-being and respect for the non-respondent parent's or other caretak-
er's interests in minimal interference in their everyday child-rearing
decisions, a delicate balance that has been held to be of constitutional
magnitude.*
Third, this measure contains several amendments to sections of Article
10 of the Family Court Act relating to preliminary orders. It would
amend section 1022-a to clarify that a non-respondent parent who quali-
fies for assignment of counsel under section 262 is eligible for such
assignment, unless waived, at pre-petition hearings held pursuant to
section 1022. Section 1027(d) would be amended to provide that a court
may release a child to his or her parent or other person legally respon-
sible for his or her care pending a final order of disposition. It
further deletes the reference to section 1054 as the source of the
court's authority to do this, since that section only addresses disposi-
tional orders, and instead substitutes a reference to section 1017,
which pertains as well to pre-dispositional orders. Additionally, with
the aim of facilitating the participation of non-respondent parents in
proceedings regarding their children, section 1035 would be modified to
require that notices of pendency of child protective proceedings that
are sent to non-respondent parents also must advise them that they have
a right to counsel, including assigned counsel, if they are indigent,
unless waived. See Matter of Sasha S., 256 A.D.2d 468 (2nd De pt., 1998)
(required notice to non-respondent father of the right to counsel,
including the right to appointment of counsel if he is indigent).
Fourth, the measure reorganizes the dispositional options available with
respect to releases of children and supervision of respondent parents.
Sections 1052(a)(ii) and 1054 are revised to cover solely the release of
children to persons who are not respondents in the child protective
proceeding, including parents, legal custodians or guardians. Such
orders of release, in contrast to orders of custody under Article 6 of
the Family Court Act, are time-limited, that is, up to one year, which
may be extended for one additional year for good cause. This time-limit-
ed period of release to a non-respondent parent is intended to give the
respondent parent an opportunity to complete a program or take steps to
meet the conditions necessary for reunification with the child. Unless
otherwise ordered by the court, the agency would be required to submit a
report no later than 90 days after issuance of the order and 60 days
prior to its expiration. Again, striking an appropriate constitutional
balance,** the caretaker would be required to submit to the jurisdiction
of the court to the same limited extent as in orders of temporary
release under proposed section 1017. An order releasing a child may,
therefore, require the caretaker to cooperate in making the child avail-
able, inter alia, for court-ordered visitation with parents, siblings or
others, for appointments with and visits by the caseworker and for
appointments with the child's attorney and clinicians and programs
providing services to the child. The order may also require cooperation
regarding appointments with, and visits by, caseworkers, including
visits in the home and in-person contact with the child protective agen-
cy, social services official or duly authorized agency.
In conjunction with release of a child to a non-respondent parent, Fami-
ly Court may, as under current law, order supervision of the respondent
under a revised and expanded Family Court Act § 1057. Like the release
of the child, the supervision of the respondent parent may be for an
initial period of one year but may be extended upon good cause for one
additional year. Since Family Court Act § 1015-a applies to any phase of
a child protective proceeding, the court also may order services to be
provided to the respondent. This measure would thus address the situ-
ation where the child's interests would best be served by residing with
a non-respondent parent for a time-limited period while the respondent
parent receives services that would promote the child's eventual return
to that parent. If during the period of the dispositional order, the
respondent parent successfully completes the services or programs
ordered, the court may, if appropriate, utilize Family Court Act § 1061
to modify the order releasing the child to the non-respondent parent to
provide for an earlier date for return of the child to the respondent
parent.
Sections 1052(a)(v) and 1057 of the Family Court Act would be amended to
cover two dispositional options, which may be ordered singly or togeth-
er. A child may be released to a respondent for a time-limited period of
up to one year, which may be extended for good cause for one more year.
A report would be required no later than 90 days after issuance of the
order and 60 days prior to its expiration, unless dispensed with by the
Family Court. Additionally, in conjunction either with such a release
or, as noted, with release of the child to a non-respondent parent,
placement of the child or issuance of an order of protection, the
respondent may be placed under the supervision of the child protective
agency, social services official or authorized agency. Such supervision
also would be time-limited - up to one year, with an extension for one
additional year for good cause - and, unless dispensed with, a report
would be required no later than 90 days after issuance of the order and
60 days prior to its expiration.
Finally, the measure amends section 1055-b to clarify the procedures
applicable when petitions for custody or guardianship are brought in
conjunction with or are pending at the same time as a child protective
proceeding. It would resolve a serious inconsistency between sections
1055-b and 1017. Section 1017(2)(a)(i) currently provides that when a
court determines that a child may reside with a suitable non-respondent
parent, it may "grant an order of custody or guardianship to such non-
respondent parent . . . pursuant to section one thousand fifty-five-b."
However, as currently drafted, section 1055-b only pertains to
"(c)ustody or guardianship with relatives or suitable persons pursuant
to Article 6 of (the Family Court Act)" and does not mention non-respon-
dent parents; nor does it specify the standard by which to determine
respondent or non-respondents parents' requests for custody in this
context.
The measure thus would insert respondent parents into the list of
persons who may be granted Article 6 custody pursuant to section 1055-b,
add two additional subdivisions regarding custody to non-respondent
parents pursuant to Article 6 and incorporate these alternatives into
the dispositional options delineated in Family Court Act § 1052. It
further makes clear that if a third party, i.e., someone other than the
child's parents, contests the custody petition of a respondent parent,
the court must grant the order of custody to the parents in the absence
of a showing of extraordinary circumstances pursuant to Bennett v.
Jeffreys, supra. Similar amendments are made to analogous provisions of
the permanency hearing statute (Family Court Act § 1089-a). Finally,
Family Court Act § 651 and Domestic Relations Law § 240 are amended to
underscore that custody standards apply in cases where custody and visi-
tation petitions brought under these sections are heard jointly with
child protective dispositional or permanency hearings in Family Court.
Questions regarding the rights of, and procedures applicable to, non-
respondent parents in child protective and related proceedings have
persisted in light of lingering ambiguities in the applicable statutes.
Enactment of this measure will provide a clear road-map that will afford
needed clarity to this increasingly important aspect of child welfare
cases.
This measure, which would have no fiscal impact upon the State, would
take effect on the one hundred eightieth day after it shall have become
a law.
2015 LEGISLATIVE HISTORY:
Senate 5018 (Sen. Felder) (ref to Children and Families)
Assembly 6715 (M. of A. Weinstein) (advanced to 3rd Rdg., Cal. 431)
2013-14 LEGISLATIVE HISTORY:
Senate 5203-A (Sen. Felder) (ref to Children and Families)
Assembly 7623 (M. of A. Weinstein) (Passed)
*In Matter of Damian D.; Clinton County Dept. of Social Services v.
Travis D., -A.D.3d-, 2015 N.Y. Slip Op. 00265 (3rd Dept., Jan. 8,
2015),the Appellate Division, Third Department, held that requiring a
non-respondent parent's visits with her two children to be supervised,
in effect modifying a custody order without a full and fair opportunity
to be heard, violated her due process. Additionally, in Doe v. Matting-
ly, 2006 WL 3498564 (E.D.N.Y., 2006)(Unpub.), the Federal District Court
required a court order, absent an emergency, as a prerequisite to a
caseworker entering the home of a non-respondent parent and conducting a
body search of the baby in her care. Significantly, the Supreme Court
of Michigan, in In Re Sanders, 495 Mich. 294, 852 N.W.2d 524 (Sup.Ct.,
MI, 2014) recently struck down as an unconstitutional violation of due
process its "one-parent" rule whereby if one parent is found to have
neglected or abused a child, both parents would automatically be subject
to the court's jurisdiction. The Court reversed restrictions imposed
upon a non-offending parent absent a showing of unfitness.
**See note 17, supra.
