Bill Text: NY A02063 | 2019-2020 | General Assembly | Introduced
Bill Title: Relates to assisting and protecting victims of domestic violence, child abuse and child neglect.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-08 - referred to children and families [A02063 Detail]
Download: New_York-2019-A02063-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 2063 2019-2020 Regular Sessions IN ASSEMBLY January 22, 2019 ___________ 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- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04494-01-9A. 2063 2 1 ized by the allegations of their opposing party, the reporting law 2 shields the identity of the false reporter. This act, therefore, 3 protects the victims of child abuse, child neglect and wrongful accusa- 4 tions of child abuse and neglect by opening the records of the central 5 registry by judicial subpoena. 6 Finally, the state legislature enacted a hearsay exception to a 7 child's statements of abuse or neglect in section 1065 of the family 8 court act. Justifiably, if not technically correct, the state's appel- 9 late courts have expanded such section's exception to custody, divorce 10 and child support proceedings. However, this exception is not currently 11 available in every matter where domestic violence, child abuse or child 12 neglect may be at issue (i.e. surrogate court matters, tort actions, or 13 family offenses). This act allows the judges, parens patria, to provide 14 further protection to children in consideration of their particular 15 emotional immaturity and fragility, while preventing convictions on only 16 the allegations of a child. 17 § 2. Subparagraphs (iv) and (v) of paragraph (a) of subdivision 5 of 18 section 422 of the social services law, subparagraph (iv) as amended by 19 chapter 555 of the laws of 2000 and subparagraph (v) as amended by chap- 20 ter 256 of the laws of 2014, are amended to read as follows: 21 (iv) to the subject of the report; [and] 22 (v) to a district attorney, an assistant district attorney, an inves- 23 tigator employed in the office of a district attorney, or to a sworn 24 officer of the division of state police, of a city, county, town or 25 village police department or of a county sheriff's office when such 26 official verifies that the report is necessary to conduct an active 27 investigation or prosecution of a violation of subdivision four of 28 section 240.50 of the penal law; and 29 (vi) on judicial subpoena of the family or supreme court where the 30 protection of a child or a false allegation of child abuse or neglect is 31 at issue and the subject of the report is a party to an action therein. 32 § 3. Subdivision 7 of section 422 of the social services law, as 33 amended by chapter 434 of the laws of 1989, is amended to read as 34 follows: 35 7. At any time, a subject of a report [and], other persons named in 36 the report or their guardians or custodians, and the family or supreme 37 court by judicial subpoena and where the protection of a child or false 38 allegations of child abuse or neglect is at issue and the subject of the 39 report is a party to an action therein, may receive, upon request, a 40 copy of all information contained in the central register; provided, 41 however, that the commissioner is authorized, except when the request is 42 made by judicial subpoena and the reporter is a party to the action, to 43 prohibit the release of data that would identify the person who made the 44 report or who cooperated in a subsequent investigation or the agency, 45 institution, organization, program or other entity where such person is 46 employed or with which he is associated, which he reasonably finds will 47 be detrimental to the safety or interests of such person. 48 § 4. Subparagraph (i) of paragraph (a) and subparagraphs (i) and (ii) 49 of paragraph (b) of subdivision 8 of section 422 of the social services 50 law, as amended by chapter 12 of the laws of 1996, are amended and a new 51 paragraph (f) is added to read as follows: 52 (i) At any time subsequent to the completion of the investigation but 53 in no event later than ninety days after the subject of the report is 54 notified that the report is indicated the subject may request the 55 commissioner to amend the record of the report. The commissioner shall 56 mail to the victim's parent, guardian or custodian notice of theA. 2063 3 1 subject's request to amend and the basis upon which the amendment is 2 sought. Such parent, guardian or custodian may object to the amendment 3 within thirty days of notice by mailing his or her objection to the 4 commissioner. If the commissioner does not amend the report in accord- 5 ance with such request within ninety days of receiving the request, the 6 subject shall have the right to a fair hearing, held in accordance with 7 paragraph (b) of this subdivision, to determine whether the record of 8 the report in the central register should be amended on the grounds that 9 it is inaccurate or it is being maintained in a manner inconsistent with 10 this title. 11 (i) If the department, within ninety days of receiving a request from 12 the subject that the record of a report be amended, does not amend the 13 record in accordance with such request, the department shall schedule a 14 fair hearing and shall provide notice of the scheduled hearing date to 15 the subject, the statewide central register [and, as appropriate, to], 16 the child protective service or the state agency which investigated the 17 report, the adult victim, or the minor victim's parent, guardian or 18 custodian. Such parent, guardian or custodian may appear in person, or 19 by an attorney, to object to the requested amendment and present 20 witnesses, sworn statements and other evidence for presentation to the 21 hearing officer. 22 (ii) The burden of proof in such a hearing shall be on the child 23 protective service or the state agency which investigated the report, 24 the adult victim, or the minor victim's parent, guardian or custodian, 25 as the case may be. In such a hearing, the fact that there is a family 26 court finding of abuse or neglect against the subject in regard to an 27 allegation contained in the report shall create an irrebuttable presump- 28 tion that said allegation is substantiated by some credible evidence. 29 (f) An adult victim, or the minor victim's parent, guardian or custo- 30 dian may seek to vacate an amendment made pursuant to paragraph (e) of 31 this subdivision within one year of the effective date of this paragraph 32 or knowledge that such an amendment has been made without such parent, 33 guardian or custodian receiving notice of hearing or the subject's 34 request to amend. The adult victim, or the minor victim's parent, guard- 35 ian or custodian seeking to vacate an unnoticed amendment shall state 36 with particularity the date that they became aware that an amendment was 37 made and the evidence he or she will present that demonstrates the 38 commissioner's error in amendment. The commissioner shall schedule a 39 rehearing date, and shall immediately inform the subject of the formerly 40 indicated report, the adult victim or minor victim's parent, guardian or 41 custodian, and the child protective service or the state agency that 42 investigated the report. 43 § 5. Paragraph (d) of subdivision 1 of section 160.55 of the criminal 44 procedure law, as amended by chapter 449 of the laws of 2015, is amended 45 to read as follows: 46 (d) the records referred to in paragraph (c) of this subdivision shall 47 be made available to the person accused or to such person's designated 48 agent, and shall be made available to (i) a prosecutor in any proceeding 49 in which the accused has moved for an order pursuant to section 170.56 50 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex 51 parte motion in any superior court, or in any district court, city court 52 or the criminal court of the city of New York provided that such court 53 sealed the record, if such agency demonstrates to the satisfaction of 54 the court that justice requires that such records be made available to 55 it, or (iii) any state or local officer or agency with responsibility 56 for the issuance of licenses to possess guns, when the accused has madeA. 2063 4 1 application for such a license, or (iv) the New York state department of 2 corrections and community supervision when the accused is under parole 3 supervision as a result of conditional release or parole release granted 4 by the New York state board of parole and the arrest which is the 5 subject of the inquiry is one which occurred while the accused was under 6 such supervision, or (v) the probation department responsible for super- 7 vision of the accused when the arrest which is the subject of the 8 inquiry is one which occurred while the accused was under such super- 9 vision, or (vi) a police agency, probation department, sheriff's office, 10 district attorney's office, department of correction of any municipality 11 and parole department, for law enforcement purposes, upon arrest in 12 instances in which the individual stands convicted of harassment in the 13 second degree, as defined in section 240.26 of the penal law, committed 14 against a member of the same family or household as the defendant, as 15 defined in subdivision one of section 530.11 of this chapter, and deter- 16 mined pursuant to subdivision eight-a of section 170.10 of this title, 17 or (vii) upon receipt of a judicial subpoena, the family or the supreme 18 court in a matter where domestic violence, the protection of a child, or 19 a false allegation of domestic violence, abuse or neglect is at issue 20 and the defendant is a party to the action therein; and 21 § 6. The civil practice law and rules is amended by adding a new 22 section 4549 to read as follows: 23 § 4549. Evidence of child's statements regarding domestic violence, 24 abuse or neglect. 1. Previous statements made by a child relating to any 25 allegations of domestic violence or child abuse or neglect shall be 26 generally admissible in evidence, but if uncorroborated, such statement 27 shall not be sufficient to make a fact-finding of abuse or neglect. Any 28 other evidence tending to support the reliability of the child's previ- 29 ous statements shall be generally admissible and sufficient corrob- 30 oration. The testimony of the child shall not be necessary to make a 31 fact-finding of domestic violence, abuse or neglect. 32 2. The presiding judge may, however, issue an order prohibiting the 33 divulging of the contents of such statements to any entity or person 34 other than the court, litigants, their counsel and any witness deemed 35 necessary to the proceedings. 36 § 7. This act shall take effect immediately.
