Bill Text: NY S05526 | 2019-2020 | General Assembly | Introduced
Bill Title: Details how the court shall notify any subjects of reports of abuse and maltreatment to children and changes all references of the department to the office of children and family services.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO CHILDREN AND FAMILIES [S05526 Detail]
Download: New_York-2019-S05526-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5526 2019-2020 Regular Sessions IN SENATE May 6, 2019 ___________ Introduced by Sen. MONTGOMERY -- read twice and ordered printed, and when printed to be committed to the Committee on Social Services AN ACT 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; and to repeal certain provisions of the social services law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. 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. In cases where the 7 report was indicated for maltreatment, the record of the report to the 8 statewide central register shall be sealed five years after the receipt 9 of such report. Reports sealed pursuant to this subdivision shall be 10 maintained in the statewide central register, however such reports shall 11 not be made available to provider or licensing agencies except that they 12 shall be made available to authorized agencies that are considering 13 licensing the subject of the report to become a foster or adoptive 14 parent, and to child protective services that are considering recommend- 15 ing the subject of the report as a custodial or visitation resource. In 16 the case of a child in residential care the record of the report to the 17 statewide central register shall be expunged ten years after the 18 reported child's eighteenth birthday. In any case and at any time, the 19 commissioner of the office of children and family services may amend any 20 record upon good cause shown and notice to the subjects of the report 21 and other persons named in the report. 22 § 2. Paragraph (a) of subdivision 8 of section 422 of the social 23 services law, as amended by chapter 12 of the laws of 1996, and subpara- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11481-01-9S. 5526 2 1 graph (ii) as amended by chapter 323 of the laws of 2008, is amended to 2 read as follows: 3 (a) (i) At any time subsequent to the completion of the investigation 4 but in no event later than ninety days after the subject of the report 5 is notified that the report is indicated or ninety days after the dispo- 6 sition of a case pursuant to article ten of the family court act based 7 on the same allegations, whichever is later, the subject may request the 8 commissioner to amend the record of the report. [If] Where a proceeding 9 pursuant to article ten of the family court act based on the same alle- 10 gations that were indicated is pending, the request to amend shall be 11 stayed until the disposition of such family court proceeding or the 12 conclusion of any period of adjournment in contemplation of dismissal, 13 whichever is later. Unless such request has been stayed, if the commis- 14 sioner does not amend the report in accordance with such request within 15 ninety days of receiving the request, the subject shall have the right 16 to a fair hearing, held in accordance with paragraph (b) of this subdi- 17 vision, to determine whether the record of the report in the central 18 register should be amended on the grounds that it is inaccurate or it is 19 being maintained in a manner inconsistent with this title. 20 (ii) Upon receipt of a request to amend the record of a child abuse 21 and maltreatment report the office of children and family services shall 22 immediately send a written request to the child protective service or 23 the state agency which was responsible for investigating the allegations 24 of abuse or maltreatment for all records, reports and other information 25 maintained by the service or state agency pertaining to such indicated 26 report. The service or state agency shall as expeditiously as possible 27 but within no more than twenty working days of receiving such request, 28 forward all records, reports and other information it maintains on such 29 indicated report to the office of children and family services, includ- 30 ing a copy of any petition or court order based on the allegations that 31 were indicated. [The] Unless such request to amend has been stayed, the 32 office of children and family services shall as expeditiously as possi- 33 ble but within no more than fifteen working days of receiving such mate- 34 rials from the child protective service or state agency, review all such 35 materials in its possession concerning the indicated report and deter- 36 mine, after affording such service or state agency a reasonable opportu- 37 nity to present its views, whether there is a fair preponderance of the 38 evidence to find that the subject committed the act or acts of child 39 abuse or maltreatment giving rise to the indicated report and whether, 40 based on guidelines developed by the office of children and family 41 services pursuant to subdivision five of section four hundred twenty- 42 four-a of this title, such act or acts could be relevant and reasonably 43 related to employment of the subject of the report by a provider agency, 44 as defined by subdivision three of section four hundred twenty-four-a of 45 this title, or relevant and reasonably related to the subject of the 46 report being allowed to have regular and substantial contact with chil- 47 dren who are cared for by a provider agency, or relevant and reasonably 48 related to the approval or disapproval of an application submitted by 49 the subject of the report to a licensing agency, as defined by subdivi- 50 sion four of section four hundred twenty-four-a of this title. 51 (iii) If it is determined at the review held pursuant to this para- 52 graph (a) that there is [no credible] not a preponderance of evidence in 53 the record to find that the subject committed an act or acts of child 54 abuse or maltreatment, the [department] office of children and family 55 services shall amend the record to indicate that the report is 56 "unfounded" and notify the subject forthwith.S. 5526 3 1 (iv) If it is determined at the review held pursuant to this paragraph 2 (a) that there is [some credible] a preponderance of evidence in the 3 record to find that the subject committed such act or acts but that such 4 act or acts could not be relevant and reasonably related to the employ- 5 ment of the subject by a provider agency or to the subject being allowed 6 to have regular and substantial contact with children who are cared for 7 by a provider agency or the approval or disapproval of an application 8 which could be submitted by the subject to a licensing agency, the 9 [department] office of children and family services shall be precluded 10 from informing a provider or licensing agency which makes an inquiry to 11 [the department] such office pursuant to the provisions of section four 12 hundred twenty-four-a of this title concerning the subject that the 13 person about whom the inquiry is made is the subject of an indicated 14 report of child abuse or maltreatment. The [department] office of chil- 15 dren and family services shall notify forthwith the subject of the 16 report of such determinations and that a fair hearing has been scheduled 17 pursuant to paragraph (b) of this subdivision. The sole issue at such 18 hearing shall be whether the subject has been shown by [some credible] a 19 preponderance of evidence to have committed the act or acts of child 20 abuse or maltreatment giving rise to the indicated report. 21 (v) If it is determined at the review held pursuant to this paragraph 22 (a) that there is [some credible] a preponderance of evidence in the 23 record to prove that the subject committed an act or acts of child abuse 24 or maltreatment and that such act or acts could be relevant and reason- 25 ably related to the employment of the subject by a provider agency or to 26 the subject being allowed to have regular and substantial contact with 27 children cared for by a provider agency or the approval or disapproval 28 of an application which could be submitted by the subject to a licensing 29 agency, the [department] office of children and family services shall 30 notify forthwith the subject of the report of such determinations and 31 that a fair hearing has been scheduled pursuant to paragraph (b) of this 32 subdivision. 33 § 3. Subparagraphs (i) and (ii) of paragraph (b) of subdivision 8 of 34 section 422 of the social services law, as amended by chapter 12 of the 35 laws of 1996, are amended to read as follows: 36 (i) If the [department] office of children and family services, within 37 ninety days of receiving a request from the subject that the record of a 38 report be amended, does not amend the record in accordance with such 39 request, [the department] such office shall schedule a fair hearing and 40 shall provide notice of the scheduled hearing date to the subject, the 41 statewide central register and, as appropriate, to the child protective 42 service or the state agency which investigated the report. 43 (ii) The burden of proof in such a hearing shall be on the child 44 protective service or the state agency which investigated the report, as 45 the case may be. In such a hearing, the fact that there is a family 46 court finding of abuse or neglect against the subject in regard to an 47 allegation contained in the report shall create an irrebuttable presump- 48 tion that said allegation is substantiated by [some credible] a prepon- 49 derance of evidence. Where the petitioning child protective agency 50 withdraws with prejudice an allegation in a petition, or a family court 51 finds on the merits that an allegation does not constitute abuse or 52 neglect under the laws of the state of New York or was not supported by 53 a preponderance of the evidence, the office of children and family 54 services shall amend such allegation to be unfounded. 55 § 4. Subparagraphs (i) and (ii) of paragraph (c) of subdivision 8 of 56 section 422 of the social services law, as amended by chapter 12 of theS. 5526 4 1 laws of 1996, and the opening paragraph of subparagraph (ii) as amended 2 by chapter 323 of the laws of 2008, are amended to read as follows: 3 (i) If it is determined at the fair hearing that there is [no credi-4ble] not a preponderance of evidence in the record to find that the 5 subject committed an act or acts of child abuse or maltreatment, the 6 [department] office of children and family services shall amend the 7 record to reflect that such a finding was made at the administrative 8 hearing, order any child protective service or state agency which inves- 9 tigated the report to similarly amend its records of the report, and 10 shall notify the subject forthwith of the determination. 11 (ii) Upon a determination made at a fair hearing [held on or after12January first, nineteen hundred eighty-six] scheduled pursuant to the 13 provisions of subparagraph (v) of paragraph (a) of this subdivision that 14 the subject has been shown by a fair preponderance of the evidence to 15 have committed the act or acts of child abuse or maltreatment giving 16 rise to the indicated report, the hearing officer shall determine, based 17 on guidelines developed by the office of children and family services 18 pursuant to subdivision five of section four hundred twenty-four-a of 19 this title, whether such act or acts are relevant and reasonably related 20 to employment of the subject by a provider agency, as defined by subdi- 21 vision three of section four hundred twenty-four-a of this title, or 22 relevant and reasonably related to the subject being allowed to have 23 regular and substantial contact with children who are cared for by a 24 provider agency or relevant and reasonably related to the approval or 25 disapproval of an application submitted by the subject to a licensing 26 agency, as defined by subdivision four of section four hundred twenty- 27 four-a of this title. 28 Upon a determination made at a fair hearing that the act or acts of 29 abuse or maltreatment are relevant and reasonably related to employment 30 of the subject by a provider agency or the subject being allowed to have 31 regular and substantial contact with children who are cared for by a 32 provider agency or the approval or denial of an application submitted by 33 the subject to a licensing agency, the [department] office of children 34 and family services shall notify the subject forthwith. The [department] 35 office of children and family services shall inform a provider or 36 licensing agency which makes an inquiry to [the department] such office 37 pursuant to the provisions of section four hundred twenty-four-a of this 38 title concerning the subject that the person about whom the inquiry is 39 made is the subject of an indicated child abuse or maltreatment report. 40 The failure to determine at the fair hearing that the act or acts of 41 abuse and maltreatment are relevant and reasonably related to the 42 employment of the subject by a provider agency or to the subject being 43 allowed to have regular and substantial contact with children who are 44 cared for by a provider agency or the approval or denial of an applica- 45 tion submitted by the subject to a licensing agency shall preclude the 46 [department] office of children and family services from informing a 47 provider or licensing agency which makes an inquiry to [the department] 48 such office pursuant to the provisions of section four hundred twenty- 49 four-a of this title concerning the subject that the person about whom 50 the inquiry is made is the subject of an indicated child abuse or 51 maltreatment report. 52 § 5. Paragraph (e) of subdivision 8 of section 422 of the social 53 services law, as added by chapter 12 of the laws of 1996, is amended to 54 read as follows: 55 (e) Should the [department] office of children and family services 56 grant the request of the subject of the report pursuant to this subdivi-S. 5526 5 1 sion either through an administrative review or fair hearing to amend an 2 indicated report to an unfounded report[. Such], such report shall be 3 legally sealed and shall be released and expunged in accordance with the 4 standards set forth in subdivision five of this section. 5 § 6. Subparagraphs (ii), (iii), and (v) of paragraph (e) of subdivi- 6 sion 1 of section 424-a of the social services law, subparagraphs (ii) 7 and (iii) as amended by chapter 12 of the laws of 1996, and subparagraph 8 (v) as amended by chapter 634 of the laws of 1988, are amended and 6 new 9 subparagraphs (vi), (vii), (viii), (ix), (x) and (xi) are added to read 10 as follows: 11 (ii) If the subject of an indicated report of child abuse or maltreat- 12 ment has not requested an amendment of the record of the report within 13 the time specified in subdivision eight of section four hundred twenty- 14 two of this title [or if the subject had a fair hearing pursuant to such15section prior to January first, nineteen hundred eighty-six] and an 16 inquiry is made to the [department] office of children and family 17 services pursuant to this subdivision concerning the subject of the 18 report, [the department] such office shall, as expeditiously as possible 19 but within no more than ten working days of receipt of the inquiry, 20 determine whether, in fact, the person about whom an inquiry is made is 21 the subject of an indicated report. Upon making a determination that the 22 person about whom the inquiry is made is the subject of an indicated 23 report of child abuse and maltreatment, the [department] office of chil- 24 dren and family services shall immediately send a written request to the 25 child protective service or state agency which was responsible for 26 investigating the allegations of abuse or maltreatment for all records, 27 reports and other information maintained by the service or state agency 28 on the subject. The service or state agency shall, as expeditiously as 29 possible but within no more than twenty working days of receiving such 30 request, forward all records, reports and other information it maintains 31 on the indicated report to the [department] office of children and fami- 32 ly services, including a copy of any petition or court order based on 33 the allegations that were indicated. [The department] Where a proceed- 34 ing pursuant to article ten of the family court act is pending based on 35 the same allegations that were indicated, the office of children and 36 family services shall defer determination of whether there is a prepon- 37 derance of the evidence to support the indication until the disposition 38 of such family court proceeding or the conclusion of any period of 39 adjournment in contemplation of dismissal, whichever is later. Unless 40 such determination has been deferred, the office of children and family 41 services shall, within fifteen working days of receiving such records, 42 reports and other information from the child protective service or state 43 agency, review all records, reports and other information in its 44 possession concerning the subject and determine whether there is [some45credible] a preponderance of evidence to find that the subject had 46 committed the act or acts of child abuse or maltreatment giving rise to 47 the indicated report. 48 (iii) If it is determined, after affording such service or state agen- 49 cy a reasonable opportunity to present its views, that there is [no50credible] not a preponderance of evidence in the record to find that the 51 subject committed such act or acts, the [department] office of children 52 and family services shall amend the record to indicate that the report 53 was unfounded and notify the inquiring party that the person about whom 54 the inquiry is made is not the subject of an indicated report. [If the55subject of the report had a fair hearing pursuant to subdivision eight56of section four hundred twenty-two of this title prior to January first,S. 5526 6 1nineteen hundred eighty-six and the fair hearing had been finally deter-2mined by the commissioner and the record of the report had not been3amended to unfound the report or delete the person as a subject of the4report, then the department shall determine that there is some credible5evidence to find that the subject had committed the act or acts of child6abuse or maltreatment giving rise to the indicated report.] 7 (v) If it is determined after a review by the [department] office of 8 children and family services of all records, reports and information in 9 its possession concerning the subject of the report that there is [some10credible] a preponderance of evidence to prove that the subject commit- 11 ted the act or acts of abuse or maltreatment giving rise to the indi- 12 cated report [and that such act or acts are relevant and reasonably13related to issues concerning the employment of the subject by a provider14agency or to the subject being allowed to have regular and substantial15contact with children cared for by a provider agency or the approval or16disapproval of an application which has been submitted by the subject to17a licensing agency, the department shall inform the inquiring party that18the person about whom the inquiry is made is the subject of an indicated19report of child abuse and maltreatment; the department shall also notify20the subject of the inquiry of his or her fair hearing rights granted21pursuant to paragraph (c) of subdivision two of this section] , the 22 office of children and family services shall notify the subject of the 23 determination of such report and of the subject's right to request a 24 fair hearing within ninety days. If the subject shall request a hearing 25 within ninety days, the office of children and family services shall 26 schedule a fair hearing and shall provide notice of the scheduled hear- 27 ing date to the subject, the statewide central register and, as appro- 28 priate, to the child protective service or state agency which investi- 29 gated such report. 30 (vi) The burden of proof in such a hearing shall be on the child 31 protective service or state agency which investigated the report. In 32 such a hearing, the fact that there is a family court finding of abuse 33 or neglect against the subject in regard to an allegation contained in 34 such report shall create an irrebuttable presumption that said allega- 35 tion is substantiated by a preponderance of evidence. Where the peti- 36 tioning child protective agency withdraws with prejudice an allegation 37 in a petition, or a family court finds on the merits that an allegation 38 does not constitute abuse or neglect under the laws of the state of New 39 York or was not supported by a preponderance of the evidence, the office 40 of children and family services shall amend that allegation to be 41 unfounded. 42 (vii) If it shall be determined at the fair hearing that there is no 43 preponderance of evidence in the record to find that the subject commit- 44 ted an act or acts of child abuse or maltreatment, the office of chil- 45 dren and family services shall amend the record to reflect that such a 46 finding was made at the administrative hearing, order any child protec- 47 tive service or state agency which investigated the report to similarly 48 amend its records of such report, notify the subject of the determi- 49 nation, and notify the inquiring party that the person about whom such 50 inquiry was made is not the subject of an indicated report. 51 (viii) Upon a determination at the fair hearing that the subject has 52 been shown, by a preponderance of the evidence, to have committed the 53 act or acts of child abuse or maltreatment giving rise to the indicated 54 report, the hearing officer shall determine, based on guidelines devel- 55 oped by the office of children and family services pursuant to subdivi- 56 sion five of this section, whether such act or acts are relevant andS. 5526 7 1 reasonably related to the subject being allowed to have regular and 2 substantial contact with children who are cared for by a provider agen- 3 cy, or relevant and reasonably related to the approval or disapproval of 4 an application submitted by the subject to a licensing agency. 5 (ix) Upon a determination made at a fair hearing that the act or acts 6 of abuse or maltreatment are relevant and reasonably related to the 7 employment of the subject by a provider agency, the subject being 8 allowed to have regular and substantial contact with children who are 9 cared for by a provider agency or the approval or denial of an applica- 10 tion submitted by the subject to a licensing agency, the office of chil- 11 dren and family services shall notify the subject and shall inform the 12 inquiring party that the person about whom such inquiry was made is the 13 subject of an indicated report of child abuse or maltreatment. 14 (x) The failure to determine at the fair hearing that the act or acts 15 of abuse and 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 shall preclude the 20 office of children and family services from informing a provider or 21 licensing agency that such person is the subject of an indicated report 22 of child abuse or maltreatment. 23 (xi) Should the office of children and family services grant the 24 request of the subject of the report pursuant to this subdivision, 25 either through an administrative review or fair hearing, to amend an 26 indicated report to an unfounded report, such report shall be legally 27 sealed and shall be released and expunged in accordance with the stand- 28 ards set forth in subdivision five of section four hundred twenty-two of 29 this title. 30 § 7. Paragraphs (c), (d) and (e) of subdivision 2 of section 424-a of 31 the social services law are REPEALED. 32 § 8. Section 1039 of the family court act is amended by adding a new 33 subdivision (h) to read as follows: 34 (h) The petitioner shall notify the office of children and family 35 services, in accordance with sections four hundred twenty-two and four 36 hundred twenty-four-a of the social services law, of the outcome of an 37 adjournment in contemplation of dismissal pursuant to this section, 38 including dismissal of the petition upon expiration of such adjournment 39 or, where the proceeding has been restored to the calendar, of the 40 status and disposition of any proceedings under this article following 41 such restoration. 42 § 9. Section 1051 of the family court act is amended by adding a new 43 subdivision (g) to read as follows: 44 (g) The petitioner shall notify the office of children and family 45 services, in accordance with sections four hundred twenty-two and four 46 hundred twenty-four-a of the social services law, of any findings of 47 abuse or neglect and of any orders of dismissal entered pursuant to this 48 section. 49 § 10. Paragraph (iii) of subdivision (f) of section 1051 of the family 50 court act, as added by chapter 430 of the laws of 1994, is amended to 51 read as follows: 52 (iii) that the report made to the state central register of child 53 abuse and maltreatment upon which the petition is based will remain on 54 file until ten years after the eighteenth birthday of the youngest child 55 named in such report, that the respondent will be unable to obtain 56 expungement of such report, that if such report is for maltreatment, itS. 5526 8 1 shall be legally sealed after five years unless a determination is made 2 to seal it earlier, and that the existence of such [report] reports 3 which are not sealed may be made known to employers seeking to screen 4 employee applicants [in the field of child care,] for positions involv- 5 ing potential contact with children, and that sealed reports may be 6 available to child protective services and law enforcement conducting 7 subsequent investigations and to [child care] authorized agencies if the 8 respondent applies to become a foster parent [or], adoptive parent or 9 seeks custody of or visitation with a child. 10 Any finding upon such an admission or consent made without such notice 11 being given by the court shall be vacated upon motion of any party. In 12 no event shall a person other than the respondent, either in person or 13 in writing, make an admission or consent to a finding of neglect or 14 abuse. 15 § 11. This act shall take effect immediately; provided, however, that 16 sections one, three, and eight of this act shall take effect on the one 17 hundred eightieth day after it shall have become a law; and section two 18 of this act shall take effect on the thirtieth day after it shall have 19 become a law.
