NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7644
SPONSOR: Fahy TITLE OF BILL:
An act to amend the family court act and the executive law, in relation
to severe child abuse and orders of protection in child abuse and
neglect cases
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.
Two serious limitations hamper Family Court's ability to fulfill its
statutory mandate to "help protect children from injury and maltreatment
and to help safeguard their physical, mental, and emotional well-being."
Family Court Act § 1011. A series of amendments to statutory provisions
regarding severe and repeated child abuse have left one significant gap
in law unaddressed, that is, the lack of authorization for Family Court
to render an enhanced finding with respect to a respondent in a child
abuse case who is not a parent of the child. Moreover, Executive Law §
221-a specifically excludes orders of protection issued in child abuse
and neglect cases from entry onto the statewide automated registry of
orders of protection and warrants. The instant measure would rectify
both of these gaps in the law.
Termination of parental rights on the grounds of severe or repeated
child abuse was added to Social Services Law § 384-b in 1981, but these
grounds were rarely utilized because of inherent difficulties in the
statute. Since an initial child abuse finding need only be proven by a
preponderance of the evidence, it could not be utilized to obviate the
need to retry the abuse issue in a later termination of parental rights
proceeding, since the latter requires proof by clear and convincing
evidence. Cf, Family Court Act § 1046(b)(i) and Social Services Law §
384-b(3)(g). In 1999, the Legislature authorized Family Court, in an
original child abuse case designated as "severe," to render an enhanced
finding pursuant to Family Court Act §§ 1046(b)(ii) and 1051(e) by clear
and convincing evidence. L. 1999, c. 7. Most recently, the Legislature
in 2013 clarified that the enhanced finding could relate solely to abuse
itself and need not include finding that the agency had exercised dili-
gent efforts to reunify the family, since the latter element could
either be proven or dispensed with in the subsequent termination of
parental rights proceeding. See Family Court Act § 1039-b; Social
Services Law § 384-b(7)(e) (L.2013, c. 430). This series of amendments
has helped Family Court to provide critical protections for children who
are victims of severe and/or repeated abuse; but they do not address to
whom the enhance finding could relate.
This measure would provide that the enhanced finding of severe or
repeated child abuse that may be made at an original child protective
proceeding under Article 10 of the Family Court Act may be rendered with
respect to any individual against whom a child protective proceeding
could be brought. Section 1012(a) of the Family Court Act defines a
respondent as a "any parent or other person legally responsible for a
child's care who is alleged to have abused or neglected such child."
Abuse charges are often brought with respect to "persons legally respon-
sible," that is, boyfriends, girlfriends and others who live in the home
but are not biological parents of the abused child. Family Court Act §
1012(g) defines a "person legally responsible" as "the child's custo-
dian, guardian, or any other person responsible for the child's care at
the relevant time. A custodian may be any person continually or at regu-
lar intervals found in the same household as the child when the conduct
of such person causes or contributes to the abuse or neglect of the
child." The Court of Appeals, in Matter of Yolanda D., 88 N.Y.2d 790
(1996), clarified that a "person legally responsible" is an individual
who "acts as the functional equivalent of a parent in a familial or
household setting, in essence, as "in loco parentis." The Court enumer-
ated factors to be considered in the fact-specific assessment of whether
an individual is a "person legally responsible," including, inter alia,
the "frequency and nature of the contact between the child and respond-
ent, the nature and extent of the control exercised by the respondent
over the child's environment, the duration of the respondent's contact
with the child, and the respondent's relationship to the child's
parent(s)." The Court cautioned that Family Court Act Article 10 "should
not be construed to include persons who assume fleeting or temporary
care of a child such as a supervisor of a play-date or an overnight
visitor or those persons who provide extended daily care of children in
institutional settings, such as teachers." See also Matter of Carmelo G,
Misc. 3d-, 2014 NY Slip Op. 51703 (Unrep.)(Fam. Ct., Bronx Co., Dec. 14,
2014).
However, because Social Services Law § 384-b, the termination of
parental rights statute, provides that such proceedings may only be
brought against parents, several court decisions have held that enhanced
findings of severe or repeated child abuse may only be made in an
original child abuse proceeding under Article 10 of the Family Court Act
against parents as well The Supreme Court, Appellate Division, in Matter
of Leonardo V, 95 A D.3d 1343 (2nd Dept., 2012), upheld an enhanced
finding of severe abuse against a father regarding his biological child,
following his conviction for homicide of the child's mother, but
reversed the enhanced finding that had been made against him regarding
the child's half-sibling, because he was a person legally responsible
for, but not the parent of, the half-sibling. Likewise, the Appellate
Division, Third Department, has held that "severe abuse requires acts
committed by a parent." See Matter of Tiarra D; Washington County Dept.
of Social Services v. Philip C., -A.D.3d-, 2015 N.Y. Slip Op. 00272
(3rd Dept., Jan. 8, 2015); Matter of Nicholas S (John T.) , 107 A.D 3d
1307, 1311 n 3 (2013), leave app. denied, 22 N.Y.3d 854 (2013). In
Matter of Yamilette G , 33 Misc. 3d 841 (Fam. Ct., Kings Co., 2009), the
Family Court made findings of both derivative child abuse and severe
abuse against a mother of a surviving child after she and her "paramour"
were convicted of homicide of the child's half-sibling. However,
because the "paramour" was the parent of the deceased child, but not the
surviving child, Family Court made only a derivative abuse finding, but
not an enhanced severe abuse finding, against the paramour. In both of
these cases, the identical homicidal conduct resulted in disparate
consequences. Additionally, in Matter of Meredith DD, 13 Misc. 3d 894
(Fam. Ct., Chemung Co., 2013), Family Court held that it was precluded
from making an enhanced finding of severe abuse in a serious case of
long-standing child sexual abuse, because the respondent, who lived in
the home, was a person legally responsible for, but not the parent of,
the abused child. Clearly, to protect children from severe or repeated
child abuse - and to protect later-born or other children from a repe-
tition of serious and often felonious behavior - enhanced findings by
clear and convincing evidence against both parents and persons legally
responsible should be able to be made in initial child abuse proceedings
pursuant to Family Court Act § 1051(e).
Equally important to realizing the precept articulated in sections 1011,
1039-b and 1052 of the Family Court Act that the safety of children
before Family Court is paramount, Executive Law § 221-a should be
amended to reverse the explicit exclusion of orders of protection issued
under Article 10 of the Family Court Act from entry onto the statewide
automated registry of orders of protection and warrants. This measure
would require that all temporary and final orders of protection issued
pursuant to Family Court Act §§ 1029 and 1056 be entered onto the state-
wide registry. The registry, established pursuant to the Family
Protection and Domestic Violence Intervention Act of 1994 (L. 1994, cc.
222, 224), has become an invaluable tool both for law enforcement and
the courts. It is essential that the registry be complete - that is,
that it include all orders of protection issued by all courts in family
and intimate partner violence cases - in order for it to fulfill its
purpose of protecting all individuals, including children, from harm.
With approximately 2.7 million orders of protection in the database,{1}
and with the database connected to the comprehensive national
"Protection Order File" maintained by the National Crime Information
Center (Federal Bureau of Investigation), the registry helps assure
informed judgments at all stages of cases involving family and intimate
partner violence. All too often, reports of violations of orders of
protection are not taken seriously if the orders are not included on the
registry, thus leaving victims and their families, even in cases of
serious child abuse, without the shield of protection that the order
should provide. Further, if a court, in determining whether an individ-
ual is suitable as a placement or custodial resource for a child or
should be able to visit with a child in a neglect, abuse, custody or
visitation case is not alerted to orders of protection issued against
the individual in child protective proceedings, the child could suffer
serious harm. Significantly, legislation enacted in 2008 and amended in
2009 requires that the registry be checked in all Family and Supreme
Court cases of child custody and visitation, thus making the registry a
critically important resource in these cases See L. 2008, c 595; L. 20
09, c. 295. All orders, including those in child protective proceedings,
must be entered onto the registry in order for it to provide the
protection necessary for all victims of family violence. Law enforce-
ment and courts must have confidence in the completeness and accuracy of
the responses to their inquiries regarding both the existence of
outstanding orders, including possibly conflicting orders, and the
parties' histories of compliance with past orders of protection.
The importance of inclusion of these orders on the registry cannot be
overstated. Domestic violence is often inextricably linked with child
abuse and victims of domestic violence in child abuse and neglect cases,
including victims who may be respondents in these proceedings, require
as much protection from their abusers as in other proceedings.{2} If a
child neglect proceeding is brought against an abuser, the order of
protection issued to protect both the abuse victim and the children
should provide as much protection as orders of protection issued in
family offense and all other cases - a principle that compels inclusion
of the order on the statewide domestic violence registry and, conse-
quently, on the Federal "Protection Order File" as well. That domestic
violence and child abuse frequently coexist in homes has been widely
recognized, with estimates of the overlap ranging from 40% to 60%.{3}
Research has estimated that children are abused at a rate 1,500 times
higher than the national average in homes where domestic violence is
also present.{4} Significantly, child sexual abuse has also been closely
correlated with domestic violence.{5}
Protection of children against severe abuse demands that Family Court be
able to render findings of severe abuse against all individuals against
whom child protective proceedings may be filed, including "persons
legally responsible," as well as parents. Further, inclusion of orders
of protection in such cases, as well as in all child protective cases,
on the statewide registry is essential to advance the Legislature's goal
of providing an integrated response in all family violence cases and of
protecting all victims of domestic abuse, both parents and children,
from suffering further harm.
This measure, which would have no fiscal impact upon the State, would
take effect on the ninetieth day after it shall have become a law.
Legislative History: None. New proposal.
{1} Source: NYS Office of Court Administration Division of Technology
(Dec., 2014).
{2} Victims of domestic violence may not be charged with child neglect
by reason of their children's exposure to domestic violence, unless they
have failed to exercise a minimum degree of care and unless the child is
thereby placed in imminent risk of impairment Nicholson v. Scoppetta, 3
N,Y.3d 357 (2004) However, there are respondents in neglect and abuse
proceedings, who are themselves also victims of family offenses, who
should be able to obtain protection for themselves and their children
without the burden of initiating separate family offense proceedings in
order to obtain this relief
{3} See "The Impact of Domestic Violence on Children: A Report to the
President of the American Bar Association" (Amer, Bar Assoc., 1994), p.
18; "Diagnostic and Treatment Guidelines on Domestic Violence" (Amer.
Medical Assoc., 1992). See also M, Fields, "The Impact of Spouse Abuse
on Children, and its Relevance in Custody and Visitation Decisions in
New York State," 3 Cornell J. of Law and Pub, Policy 222, 224 (1994); A,
Jones, Next Time She'll be Dead 84 (1994) (citing, E. Stark and A. Flit-
craft, "Women and Children at Risk: A Feminist Perspective on Child
Abuse," 18 Intl. J Health Services 1:97 (1988); L. McKibben, et al ,
"Victimization of Mothers of Abused Children: A Controlled Study," 84
Pediatrics 3 (1989); L. Walker, The Battered Woman Syndrome 59 (1984)).
{4} "The Violence Against Women Act of 1990: Hearings on S 2754," Senate
Committee on the Judiciary, Report 1-545, 101st Cong., 2d Sess 37
(1990)(cited in J. Zorza, "Woman Battering: A Major Cause of Homeless-
ness," Clearinghouse Review (Special Issue, 1991))
{5} L. Hoff, Battered Women as Survivors 240 (1990); M. Roy, Children in
the Crossfire 89-90 (1988); Hewitt and Friedrich, "Effects of Probable
Sexual Abuse on Preschool Children," in M.Q Patton, ed, Family Sexual
Abuse .5974 (1991) (cited in J. Zorza, supra, at 424-425).
