Bill Text: NY A08060 | 2019-2020 | General Assembly | Amended


Bill Title: Relates to the standards of proof for unfounded and indicated reports of abuse or maltreatment and the admissibility of reports of child abuse and maltreatment and requires a fair preponderance of evidence of the alleged report; relates to the administration of the statewide central register of child abuse and maltreatment; makes related provisions.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-06-20 - substituted by s6427a [A08060 Detail]

Download: New_York-2019-A08060-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         8060--A

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                      May 31, 2019
                                       ___________

        Introduced by M. of A. JAFFEE -- read once and referred to the Committee
          on  Children and Families -- reported and referred to the Committee on
          Codes -- committee discharged,  bill  amended,  ordered  reprinted  as
          amended and recommitted to said committee

        AN  ACT to amend the social services law, in relation to the standard of
          proof for unfounded and indicated reports of abuse or maltreatment and
          the admissibility of reports of child abuse and maltreatment;  and  to
          amend the social services law and the family court act, in relation to
          the  administration  of  the statewide central register of child abuse
          and maltreatment

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1. Subdivisions 6 and 7 of section 412 of the social services
     2  law, as added by chapter 1039 of the laws of 1973 and as  renumbered  by
     3  chapter 323 of the laws of 2008, are amended to read as follows:
     4    6.  An "unfounded report" means any report made pursuant to this title
     5  unless an investigation determines that [some credible evidence] a  fair
     6  preponderance of evidence of the alleged abuse or maltreatment exists;
     7    7. An "indicated report" means a report made pursuant to this title if
     8  an investigation determines that [some credible evidence] a fair prepon-
     9  derance of evidence of the alleged abuse or maltreatment exists.
    10    §  2.  Section 651-a of the family court act, as amended by chapter 12
    11  of the laws of 1996, is amended to read as follows:
    12    § 651-a. Reports of child abuse and  maltreatment;  admissibility.  In
    13  any proceeding brought pursuant to this section to determine the custody
    14  or visitation of minors, a report made to the statewide central register
    15  of child abuse and maltreatment, pursuant to title six of article six of
    16  the social services law, or a portion thereof, which is otherwise admis-
    17  sible  as a business record pursuant to rule forty-five hundred eighteen
    18  of the civil practice law and rules shall not be admissible in evidence,
    19  notwithstanding such  rule,  unless  an  investigation  of  such  report

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13104-05-9

        A. 8060--A                          2

     1  conducted  pursuant  to  title six of article six of the social services
     2  law has determined that there is [some credible] a fair preponderance of
     3  evidence of the alleged abuse or maltreatment, that the subject  of  the
     4  report  has  been notified that the report is indicated. In addition, if
     5  such report has been  reviewed  by  the  state  commissioner  of  social
     6  services  or  his  designee  and has been determined to be unfounded, it
     7  shall not be admissible in evidence. If such report has been so reviewed
     8  and has been amended to delete any finding, each  such  deleted  finding
     9  shall not be admissible. If the state commissioner of social services or
    10  his  designee  has  amended the report to add any new finding, each such
    11  new finding, together with  any  portion  of  the  original  report  not
    12  deleted  by  the commissioner or his designee, shall be admissible if it
    13  meets the other requirements of this section and is otherwise admissible
    14  as a business record. If such a report, or portion thereof, is  admissi-
    15  ble  in  evidence  but  is uncorroborated, it shall not be sufficient to
    16  make a fact finding of abuse or maltreatment  in  such  proceeding.  Any
    17  other  evidence  tending to support the reliability of such report shall
    18  be sufficient corroboration.
    19    § 3. Paragraph (c) of subdivision 2  of  section  421  of  the  social
    20  services  law, as amended by chapter 718 of the laws of 1986, is amended
    21  to read as follows:
    22    (c) issue guidelines to assist local child protective services in  the
    23  interpretation  and assessment of reports of abuse and maltreatment made
    24  to the statewide central register  described  in  section  four  hundred
    25  twenty-two  of  this article. Such guidelines shall include information,
    26  standards and criteria for [the identification  of  credible]  assessing
    27  whether  a fair preponderance of evidence of alleged abuse and maltreat-
    28  ment exists as required to determine whether a report may be indicated.
    29    § 4. The opening paragraph  of  paragraph  (a)  of  subdivision  5  of
    30  section  422 of the social services law, as amended by section 7 of part
    31  D of chapter 501 of the laws of 2012, is amended to read as follows:
    32    Unless an investigation of a report conducted pursuant to  this  title
    33  determines  that  there  is  [some  credible]  a  fair  preponderance of
    34  evidence of the alleged abuse or maltreatment, all information identify-
    35  ing the subjects of the report and other persons  named  in  the  report
    36  shall  be legally sealed forthwith by the central register and any local
    37  child protective services or the state  agency  which  investigated  the
    38  report. Such unfounded reports may only be unsealed and made available:
    39    §  5.  Paragraph  (c)  of  subdivision  5 of section 422 of the social
    40  services law, as added by chapter 555 of the laws of 2000, is amended to
    41  read as follows:
    42    (c) Notwithstanding any other provision of law, the office of children
    43  and family services may, in its discretion, grant a request  to  expunge
    44  an unfounded report where: (i) the source of the report was convicted of
    45  a  violation  of subdivision three of section 240.55 of the penal law in
    46  regard to such report; or (ii) the subject of the report presents  clear
    47  and  convincing  evidence  that  affirmatively refutes the allegation of
    48  abuse or maltreatment; provided however, that the absence of  [credible]
    49  a  fair  preponderance of evidence supporting the allegation of abuse or
    50  maltreatment shall not be the sole basis to expunge the report.  Nothing
    51  in  this  paragraph  shall  require  the  office  of children and family
    52  services to hold  an  administrative  hearing  in  deciding  whether  to
    53  expunge  a report. Such office shall make its determination upon review-
    54  ing the written evidence submitted by the subject of the report and  any
    55  records  or  information  obtained  from the state or local agency which
    56  investigated the allegations of abuse or maltreatment.

        A. 8060--A                          3

     1    § 6. Subdivision 6 of section 422  of  the  social  services  law,  as
     2  amended  by  section  7 of part D of chapter 501 of the laws of 2012, is
     3  amended to read as follows:
     4    6.  In  all  other  cases,  the  record of the report to the statewide
     5  central register shall be expunged ten years after the eighteenth birth-
     6  day of the youngest child named in  the  report.  Provided  however,  in
     7  cases where the report was indicated for maltreatment, the record of the
     8  report  to  the statewide central register shall be conditionally sealed
     9  eight years after the report is received by the statewide central regis-
    10  ter, so long as there  are  no  other  indicated  reports  of  abuse  or
    11  maltreatment  with  such  individual named as the subject of the report.
    12  Provided, further, that if such individual is named as the subject of  a
    13  report  in  any subsequent indicated abuse or maltreatment reports, such
    14  record shall be immediately unsealed and the subsequent indicated report
    15  shall be  ineligible  for  conditional  sealing.  Reports  conditionally
    16  sealed pursuant to this subdivision shall be maintained in the statewide
    17  central  register,  however  such  reports  shall  not be made available
    18  except to: (a) entities included in paragraph (a) of subdivision five of
    19  this section; (b) authorized agencies that are considering licensing the
    20  subject of the report to become a foster or adoptive parent;  (c)  child
    21  protective services that are considering recommending the subject of the
    22  report  as  a  custodial or visitation resource; (d) head start programs
    23  which are funded pursuant to title V of the federal economic opportunity
    24  act of 1964, early intervention services established pursuant to section
    25  twenty-five hundred forty of the public health law,  preschool  services
    26  established  pursuant to section forty-four hundred ten of the education
    27  law and child day care providers as defined  in  section  three  hundred
    28  ninety  of  this article for the purposes of determining employment, but
    29  only for an additional four years after  such  record  is  conditionally
    30  sealed;  and  (e) the court, upon receiving a recommendation regarding a
    31  potential foster  or  adoptive  parent  or  a  custodial  or  visitation
    32  resource  from  a  child  protective  service if such recommendation was
    33  based in any part on the indicated report. In the case  of  a  child  in
    34  residential  care  the  record  of  the  report to the statewide central
    35  register shall be expunged ten years after the  reported  child's  eigh-
    36  teenth  birthday.  In  any case and at any time, the commissioner of the
    37  office of children and family services may amend any  record  upon  good
    38  cause  shown  and notice to the subjects of the report and other persons
    39  named in the report.
    40    § 7. Paragraph (a) of subdivision 8  of  section  422  of  the  social
    41  services law, as amended by chapter 12 of the laws of 1996, and subpara-
    42  graph  (ii) as amended by chapter 323 of the laws of 2008, is amended to
    43  read as follows:
    44    (a) (i) At any time subsequent to the completion of the  investigation
    45  [but  in no event later than ninety days after the subject of the report
    46  is notified that the report is indicated] the subject  may  request  the
    47  commissioner  to  amend the record of the report.  [If] After an initial
    48  request, subsequent requests may be made for the purpose of  determining
    49  whether,  due  to a change in the subject's circumstances, the indicated
    50  case continues to be relevant and reasonably related pursuant to subpar-
    51  agraph (ii) of paragraph (c) of this subdivision. Such evaluation  shall
    52  take  place  no  more  than biennially.   Where a proceeding pursuant to
    53  article ten of the family court act based on the same  allegations  that
    54  were  indicated  is  pending, the request to amend shall be stayed until
    55  the disposition of such family court proceeding or, if the  petition  is
    56  dismissed  at  the  conclusion  of  an  adjournment  in contemplation of

        A. 8060--A                          4

     1  dismissal or suspended judgment, at such time of the dismissal, whichev-
     2  er is later. Unless such request has been stayed,  if  the  commissioner
     3  does  not amend the report in accordance with such request within ninety
     4  days  of  receiving  the  request, the subject shall have the right to a
     5  fair hearing, held in accordance with paragraph (b) of this subdivision,
     6  to determine whether the record of the report in  the  central  register
     7  should  be  amended  on the grounds that it is inaccurate or it is being
     8  maintained in a manner inconsistent with this title.
     9    (ii) Upon receipt of a request to amend the record of  a  child  abuse
    10  and maltreatment report the office of children and family services shall
    11  immediately  send  a  written request to the child protective service or
    12  the state agency which was responsible for investigating the allegations
    13  of abuse or maltreatment for all records, reports and other  information
    14  maintained  by  the service or state agency pertaining to such indicated
    15  report. The service or state agency shall as expeditiously  as  possible
    16  but  within  no more than twenty working days of receiving such request,
    17  forward all records, reports and other information it maintains on  such
    18  indicated  report to the office of children and family services, includ-
    19  ing a copy of any petition or court order based on the allegations  that
    20  were  indicated. [The] Unless such request to amend has been stayed, the
    21  office of children and family services shall as expeditiously as  possi-
    22  ble but within no more than fifteen working days of receiving such mate-
    23  rials from the child protective service or state agency, review all such
    24  materials  in  its possession concerning the indicated report and deter-
    25  mine, after affording such service or state agency a reasonable opportu-
    26  nity to present its views, whether there is a fair preponderance of  the
    27  evidence  to  find  that  the subject committed the act or acts of child
    28  abuse or maltreatment giving rise to the indicated report  and  whether,
    29  based  on  guidelines  developed  by  the  office of children and family
    30  services pursuant to subdivision five of section  four  hundred  twenty-
    31  four-a  of this title, such act or acts could be relevant and reasonably
    32  related to employment of the subject of the report by a provider agency,
    33  as defined by subdivision three of section four hundred twenty-four-a of
    34  this title, or relevant and reasonably related to  the  subject  of  the
    35  report  being allowed to have regular and substantial contact with chil-
    36  dren who are cared for by a provider agency, or relevant and  reasonably
    37  related  to  the  approval or disapproval of an application submitted by
    38  the subject of the report to a licensing agency, as defined by  subdivi-
    39  sion four of section four hundred twenty-four-a of this title.
    40    (iii)  If  it  is determined at the review held pursuant to this para-
    41  graph [(a)] that there is [no credible]  not  a  fair  preponderance  of
    42  evidence in the record to find that the subject committed an act or acts
    43  of  child abuse or maltreatment, the [department] office of children and
    44  family services shall amend the record to indicate that  the  report  is
    45  "unfounded" and notify the subject forthwith.
    46    (iv) If it is determined at the review held pursuant to this paragraph
    47  [(a)]  that there is [some credible] a fair preponderance of evidence in
    48  the record to find that the subject committed such act or acts but  that
    49  such  act  or  acts  could not be relevant and reasonably related to the
    50  employment of the subject by a provider agency or to the  subject  being
    51  allowed  to  have  regular and substantial contact with children who are
    52  cared for by a provider agency or the  approval  or  disapproval  of  an
    53  application which could be submitted by the subject to a licensing agen-
    54  cy,  the  [department]  office  of children and family services shall be
    55  precluded from informing a provider or licensing agency which  makes  an
    56  inquiry  to  [the  department] such office pursuant to the provisions of

        A. 8060--A                          5

     1  section four hundred twenty-four-a of this title concerning the  subject
     2  that  the  person  about  whom  the inquiry is made is the subject of an
     3  indicated report of child abuse or maltreatment. The [department] office
     4  of  children  and  family services shall notify forthwith the subject of
     5  the report of such determinations and that a fair hearing has been sche-
     6  duled pursuant to paragraph (b) of this subdivision. The sole  issue  at
     7  such hearing shall be whether the subject has been shown by [some credi-
     8  ble]  a fair preponderance of evidence to have committed the act or acts
     9  of child abuse or maltreatment giving rise to the indicated report.
    10    (v) If it is determined at the review held pursuant to this  paragraph
    11  [(a)]  that there is [some credible] a fair preponderance of evidence in
    12  the record to prove that the subject committed an act or acts  of  child
    13  abuse  or  maltreatment  and that such act or acts could be relevant and
    14  reasonably related to the employment of the subject by a provider agency
    15  or to the subject being allowed to have regular and substantial  contact
    16  with  children  cared for by a provider agency or the approval or disap-
    17  proval of an application which could be submitted by the  subject  to  a
    18  licensing  agency,  the  [department]  office  of  children  and  family
    19  services shall notify forthwith the subject of the report of such deter-
    20  minations and that a fair hearing has been scheduled pursuant  to  para-
    21  graph (b) of this subdivision.
    22    §  8.  Subparagraphs (i) and (ii) of paragraph (b) of subdivision 8 of
    23  section 422 of the social services law, as amended by chapter 12 of  the
    24  laws of 1996, are amended to read as follows:
    25    (i) If the [department] office of children and family services, [with-
    26  in  ninety  days  of] upon receiving a request from the subject that the
    27  record of a report be amended, does not amend the record  in  accordance
    28  with  such  request,  [the department] such office shall schedule a fair
    29  hearing and shall provide notice of the scheduled hearing  date  to  the
    30  subject,  the  statewide  central  register  and, as appropriate, to the
    31  child protective service or the  state  agency  which  investigated  the
    32  report.
    33    (ii)  The  burden  of  proof  in  such a hearing shall be on the child
    34  protective service or the state agency which investigated the report, as
    35  the case may be. In such a hearing, the fact  that  there  is  a  family
    36  court  finding  of  abuse or neglect against the subject in regard to an
    37  allegation contained in the report shall create an irrebuttable presump-
    38  tion that said allegation is substantiated by  [some  credible]  a  fair
    39  preponderance of evidence.  Where the petitioning child protective agen-
    40  cy  withdraws  with  prejudice  an allegation in a petition, or a family
    41  court finds on the merits that an allegation does not  constitute  abuse
    42  or neglect or was not supported by a fair preponderance of the evidence,
    43  or  an  allegation  has  been  dismissed  at the conclusion of either an
    44  adjournment in contemplation of dismissal or suspended judgment, if such
    45  allegation was the same as the allegation in an  indicated  report,  the
    46  office of children and family services shall amend such indicated report
    47  to be unfounded.
    48    §  9.  Subparagraphs (i) and (ii) of paragraph (c) of subdivision 8 of
    49  section 422 of the social services law, as amended by chapter 12 of  the
    50  laws  of 1996, and the opening paragraph of subparagraph (ii) as amended
    51  by chapter 323 of the laws of 2008, are amended to read as follows:
    52    (i) If it is determined at the fair hearing that there is  [no  credi-
    53  ble] not a fair preponderance of evidence in the record to find that the
    54  subject  committed  an  act  or acts of child abuse or maltreatment, the
    55  [department] office of children and  family  services  shall  amend  the
    56  record  to  reflect  that  such a finding was made at the administrative

        A. 8060--A                          6

     1  hearing, order any child protective service or state agency which inves-
     2  tigated the report to similarly amend its records  of  the  report,  and
     3  shall notify the subject forthwith of the determination.
     4    (ii)  Upon  a  determination  made at a fair hearing [held on or after
     5  January first, nineteen hundred eighty-six] scheduled  pursuant  to  the
     6  provisions of subparagraph (v) of paragraph (a) of this subdivision that
     7  the  subject  has  been shown by a fair preponderance of the evidence to
     8  have committed the act or acts of child  abuse  or  maltreatment  giving
     9  rise to the indicated report, the hearing officer shall determine, based
    10  on  guidelines  developed  by the office of children and family services
    11  pursuant to subdivision five of section four  hundred  twenty-four-a  of
    12  this title, whether such act or acts are relevant and reasonably related
    13  to  employment of the subject by a provider agency, as defined by subdi-
    14  vision three of section four hundred twenty-four-a  of  this  title,  or
    15  relevant  and  reasonably  related  to the subject being allowed to have
    16  regular and substantial contact with children who are  cared  for  by  a
    17  provider  agency  or  relevant and reasonably related to the approval or
    18  disapproval of an application submitted by the subject  to  a  licensing
    19  agency,  as  defined by subdivision four of section four hundred twenty-
    20  four-a of this title.
    21    Upon a determination made at a fair hearing that the act  or  acts  of
    22  abuse  or maltreatment are relevant and reasonably related to employment
    23  of the subject by a provider agency or the subject being allowed to have
    24  regular and substantial contact with children who are  cared  for  by  a
    25  provider agency or the approval or denial of an application submitted by
    26  the  subject  to a licensing agency, the [department] office of children
    27  and family services shall notify the subject forthwith. The [department]
    28  office of children and  family  services  shall  inform  a  provider  or
    29  licensing  agency which makes an inquiry to [the department] such office
    30  pursuant to the provisions of section four hundred twenty-four-a of this
    31  title concerning the subject that the person about whom the  inquiry  is
    32  made is the subject of an indicated child abuse or maltreatment report.
    33    The  failure  to determine at the fair hearing that the act or acts of
    34  abuse and maltreatment  are  relevant  and  reasonably  related  to  the
    35  employment  of  the subject by a provider agency or to the subject being
    36  allowed to have regular and substantial contact with  children  who  are
    37  cared  for by a provider agency or the approval or denial of an applica-
    38  tion submitted by the subject to a licensing agency shall  preclude  the
    39  [department]  office  of  children  and family services from informing a
    40  provider or licensing agency which makes an inquiry to [the  department]
    41  such  office  pursuant to the provisions of section four hundred twenty-
    42  four-a of this title concerning the subject that the person  about  whom
    43  the  inquiry  is  made  is  the  subject  of an indicated child abuse or
    44  maltreatment report.
    45    § 10. Paragraph (e) of subdivision 8 of  section  422  of  the  social
    46  services  law, as added by chapter 12 of the laws of 1996, is amended to
    47  read as follows:
    48    (e) Should the [department] office of  children  and  family  services
    49  grant the request of the subject of the report pursuant to this subdivi-
    50  sion either through an administrative review or fair hearing to amend an
    51  indicated  report  to  an unfounded report[. Such], such report shall be
    52  legally sealed and shall be released and expunged in accordance with the
    53  standards set forth in subdivision five of this section.
    54    § 11. Subparagraphs (i), (ii), (iii), and  (v)  of  paragraph  (e)  of
    55  subdivision 1 of section 424-a of the social services law, subparagraphs
    56  (i),  (ii)  and  (iii) as amended by chapter 12 of the laws of 1996, and

        A. 8060--A                          7

     1  subparagraph (v) as amended by chapter 634 of  the  laws  of  1988,  are
     2  amended  and  six  new  subparagraphs (vi), (vii), (viii), (ix), (x) and
     3  (xi) are added to read as follows:
     4    (i)  Subject to the provisions of subparagraph (ii) of this paragraph,
     5  the department shall inform the provider or licensing agency,  or  child
     6  care  resource and referral programs pursuant to subdivision six of this
     7  section whether or not the person is the subject of an  indicated  child
     8  abuse  and  maltreatment report only if: (a) the time for the subject of
     9  the report to request an amendment of the record of the report  pursuant
    10  to  [subdivision  eight of section four hundred twenty-two] subparagraph
    11  (v) of this paragraph has expired without any such request  having  been
    12  made;  or  (b) such request was made within such time and a fair hearing
    13  regarding the request has been finally determined  by  the  commissioner
    14  and  the record of the report has not been amended to unfound the report
    15  or delete the person as a subject of the report.
    16    (ii) If the subject of an indicated report of child abuse or maltreat-
    17  ment has not requested an amendment of the record of the report  [within
    18  the  time specified in subdivision eight of section four hundred twenty-
    19  two of this title or if the subject had a fair hearing pursuant to  such
    20  section  prior  to  January  first,  nineteen hundred eighty-six] and an
    21  inquiry is made to  the  [department]  office  of  children  and  family
    22  services  pursuant  to  this  subdivision  concerning the subject of the
    23  report, [the department] such office shall, as expeditiously as possible
    24  but within no more than ten working days  of  receipt  of  the  inquiry,
    25  determine  whether, in fact, the person about whom an inquiry is made is
    26  the subject of an indicated report. Upon making a determination that the
    27  person about whom the inquiry is made is the  subject  of  an  indicated
    28  report of child abuse and maltreatment, the [department] office of chil-
    29  dren and family services shall immediately send a written request to the
    30  child  protective  service  or  state  agency  which was responsible for
    31  investigating the allegations of abuse or maltreatment for all  records,
    32  reports  and other information maintained by the service or state agency
    33  on the subject. The service or state agency shall, as  expeditiously  as
    34  possible  but  within no more than twenty working days of receiving such
    35  request, forward all records, reports and other information it maintains
    36  on the indicated report to the [department] office of children and fami-
    37  ly services, including a copy of any petition or court  order  based  on
    38  the  allegations that were indicated.  [The department] Where a proceed-
    39  ing pursuant to article ten of the family court act is pending based  on
    40  the  same  allegations  that  were indicated, the office of children and
    41  family services shall stay determination of  whether  there  is  a  fair
    42  preponderance of the evidence to support the indication until the dispo-
    43  sition  of  such family court proceeding or if the petition is dismissed
    44  at the conclusion of an adjournment in  contemplation  of  dismissal  or
    45  suspended  judgment,  at such time of the dismissal, whichever is later.
    46  Unless such determination has been stayed, the office  of  children  and
    47  family  services  shall,  within  fifteen working days of receiving such
    48  records, reports and other information from the child protective service
    49  or state agency, review all records, reports and  other  information  in
    50  its  possession  concerning  the  subject and determine whether there is
    51  [some credible] a fair  preponderance  of  evidence  to  find  that  the
    52  subject  had  committed  the  act or acts of child abuse or maltreatment
    53  giving rise to the indicated report.
    54    (iii) If it is determined, after affording such service or state agen-
    55  cy a reasonable opportunity to present its  views,  that  there  is  [no
    56  credible]  not  a  fair  preponderance of evidence in the record to find

        A. 8060--A                          8

     1  that the subject committed such act or acts, the [department] office  of
     2  children and family services shall amend the record to indicate that the
     3  report  was  unfounded  and  notify  the inquiring party that the person
     4  about  whom  the  inquiry  is  made  is  not the subject of an indicated
     5  report. [If the subject of the report had a  fair  hearing  pursuant  to
     6  subdivision eight of section four hundred twenty-two of this title prior
     7  to  January  first, nineteen hundred eighty-six and the fair hearing had
     8  been finally determined by the commissioner and the record of the report
     9  had not been amended to unfound the report or delete  the  person  as  a
    10  subject of the report, then the department shall determine that there is
    11  some credible evidence to find that the subject had committed the act or
    12  acts  of  child  abuse  or  maltreatment  giving  rise  to the indicated
    13  report.]
    14    (v) If it is determined after a review by the [department]  office  of
    15  children  and family services of all records, reports and information in
    16  its possession concerning the subject of the report that there is  [some
    17  credible]  a  fair  preponderance  of evidence to prove that the subject
    18  committed the act or acts of abuse or maltreatment giving  rise  to  the
    19  indicated  report [and that such act or acts are relevant and reasonably
    20  related to issues concerning the employment of the subject by a provider
    21  agency or to the subject being allowed to have regular  and  substantial
    22  contact  with children cared for by a provider agency or the approval or
    23  disapproval of an application which has been submitted by the subject to
    24  a licensing agency, the department shall inform the inquiring party that
    25  the person about whom the inquiry is made is the subject of an indicated
    26  report of child abuse and maltreatment; the department shall also notify
    27  the subject of the inquiry of his or her  fair  hearing  rights  granted
    28  pursuant  to  paragraph  (c)  of  subdivision  two of this section], the
    29  office of children and family services shall notify the subject  of  the
    30  determination  of  such  report  and of the subject's right to request a
    31  fair hearing within ninety days. If the subject shall request a  hearing
    32  within  ninety  days,  the  office of children and family services shall
    33  schedule a fair hearing and shall provide notice of the scheduled  hear-
    34  ing  date  to the subject, the statewide central register and, as appro-
    35  priate, to the child protective service or state agency  which  investi-
    36  gated such report.
    37    (vi)  The  burden  of  proof  in  such a hearing shall be on the child
    38  protective service or state agency which  investigated  the  report.  In
    39  such  a  hearing, the fact that there is a family court finding of abuse
    40  or neglect against the subject in regard to an allegation  contained  in
    41  such  report  shall create an irrebuttable presumption that said allega-
    42  tion is substantiated by a fair preponderance  of  evidence.  Where  the
    43  petitioning  child protective agency withdraws with prejudice an allega-
    44  tion in a petition, or a family court finds on the merits that an  alle-
    45  gation  does  not  constitute abuse or neglect or was not supported by a
    46  fair preponderance of the evidence, or a petition has been dismissed  at
    47  the  conclusion of either an adjournment in contemplation of a dismissal
    48  or suspended judgment, if such allegation was at the same  time  as  the
    49  allegation  in  an  indicated  report  the office of children and family
    50  services shall amend such indicated report to be unfounded.
    51    (vii) If it shall be determined at the fair hearing that there  is  no
    52  fair  preponderance  of  evidence in the record to find that the subject
    53  committed an act or acts of child abuse or maltreatment, the  office  of
    54  children and family services shall amend the record to reflect that such
    55  a  finding  was  made  at  the  administrative  hearing, order any child
    56  protective service or state agency  which  investigated  the  report  to

        A. 8060--A                          9

     1  similarly  amend  its  records of such report, notify the subject of the
     2  determination, and notify the inquiring party that the person about whom
     3  such inquiry was made is not the subject of an indicated report.
     4    (viii)  Upon  a determination at the fair hearing that the subject has
     5  been shown, by a fair preponderance of the evidence, to  have  committed
     6  the  act or acts of child abuse or maltreatment giving rise to the indi-
     7  cated report, the hearing officer shall determine, based  on  guidelines
     8  developed  by  the  office  of  children and family services pursuant to
     9  subdivision five of this section, whether such act or acts are  relevant
    10  and  reasonably related to the subject being allowed to have regular and
    11  substantial contact with children who are cared for by a provider  agen-
    12  cy, or relevant and reasonably related to the approval or disapproval of
    13  an application submitted by the subject to a licensing agency.
    14    (ix)  Upon a determination made at a fair hearing that the act or acts
    15  of abuse or maltreatment are relevant  and  reasonably  related  to  the
    16  employment  of  the  subject  by  a  provider  agency, the subject being
    17  allowed to have regular and substantial contact with  children  who  are
    18  cared  for by a provider agency or the approval or denial of an applica-
    19  tion submitted by the subject to a licensing agency, the office of chil-
    20  dren and family services shall notify the subject and shall  inform  the
    21  inquiring  party that the person about whom such inquiry was made is the
    22  subject of an indicated report of child abuse or maltreatment.
    23    (x) The failure to determine at the fair hearing that the act or  acts
    24  of  abuse  and  maltreatment  are relevant and reasonably related to the
    25  employment of the subject  by  a  provider  agency,  the  subject  being
    26  allowed  to  have  regular and substantial contact with children who are
    27  cared for by a provider agency or the approval or denial of an  applica-
    28  tion  submitted  by the subject to a licensing agency shall preclude the
    29  office of children and family services  from  informing  a  provider  or
    30  licensing  agency that such person is the subject of an indicated report
    31  of child abuse or maltreatment.
    32    (xi) Should the office of  children  and  family  services  grant  the
    33  request  of  the  subject  of  the  report pursuant to this subdivision,
    34  either through an administrative review or fair  hearing,  to  amend  an
    35  indicated  report  to  an unfounded report, such report shall be legally
    36  sealed and shall be released and expunged in accordance with the  stand-
    37  ards set forth in subdivision five of section four hundred twenty-two of
    38  this title.
    39    § 12. Paragraph (iii) of subdivision (f) of section 1051 of the family
    40  court  act,  as  added by chapter 430 of the laws of 1994, is amended to
    41  read as follows:
    42    (iii) that the report made to the  state  central  register  of  child
    43  abuse  and  maltreatment upon which the petition is based will remain on
    44  file until ten years after the eighteenth birthday of the youngest child
    45  named in such report, that the  respondent  will  be  unable  to  obtain
    46  expungement  of  such report[, and] that if such report is for maltreat-
    47  ment, it shall be legally conditionally sealed after eight years  unless
    48  a determination is made to seal it earlier so long as such individual is
    49  not  named  as  the  subject  of  the report in any subsequent indicated
    50  reports of abuse or  maltreatment.  The  court  shall  also  inform  the
    51  respondent  that  the  existence  of such [report] reports which are not
    52  conditionally sealed may be made known to employers  seeking  to  screen
    53  employee  applicants  [in  the  field  of child care, and] for positions
    54  involving potential contact with children, and that conditionally sealed
    55  reports may be available to child protective services and  law  enforce-
    56  ment  conducting  subsequent  investigations, to [child care] authorized

        A. 8060--A                         10

     1  agencies if the respondent applies to become a foster parent [or], adop-
     2  tive parent or seeks custody of or visitation with a child,  or  for  an
     3  additional four years after the record has been conditionally sealed, to
     4  head  start programs which are funded pursuant to title V of the federal
     5  economic opportunity act of 1964,  early  intervention  services  estab-
     6  lished  pursuant  to  section  twenty-five  hundred  forty of the public
     7  health law, preschool services established pursuant  to  section  forty-
     8  four  hundred  ten  of  the  education  law  and child care providers as
     9  defined in section three hundred ninety of the social services law,  for
    10  the purposes of determining employment.
    11    Any finding upon such an admission or consent made without such notice
    12  being  given  by the court shall be vacated upon motion of any party. In
    13  no event shall a person other than the respondent, either in  person  or
    14  in  writing,  make  an  admission  or consent to a finding of neglect or
    15  abuse.
    16    § 13. This act shall take effect immediately; provided,  however  that
    17  section  one of this act shall take effect on the ninetieth day after it
    18  shall have become a law; provided, however, that sections six and  eight
    19  of  this act shall take effect on the one hundred eightieth day after it
    20  shall have become a law; and section seven of this act shall take effect
    21  on the thirtieth day after it shall have become a law.
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