Relates to procedures, petitions and special provisions regarding abandoned infants; defines abandoned infant; sets forth preliminary procedures; and provides for sustaining or dismissing a petition alleging a child is an abandoned infant.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2325
SPONSOR: Paulin (MS) TITLE OF BILL: An act to amend the family court act and the social
services law, in relation to abandoned infants
PURPOSE OR GENERAL IDEA OF BILL: To better implement the Abandoned
Infant Protection Act of 2000 by clarifying certain provisions of the
family court act and social services law in order to protect abandoned
newborn infants.
SUMMARY OF SPECIFIC PROVISIONS: Section one amends section 1012 of the
family court act by amending paragraph (ii) of subdivision (f) and
subdivision (j) and adding a new subdivision (1). Paragraph (ii) of
subdivision (f) clarifies that the term "neglected child" does not
include an abandoned infant as defined subdivision (1) of section 1012
of the family court act. Subdivision (j) amends the definition of
"aggravated circumstances" to include where a court has determined a
child thirty days or younger was abandoned by a parent with an intent to
wholly abandon such child and with the intent that the child be safe
from physical injury and cared for in an appropriate manner. New subdi-
vision (1) defines "abandoned infant."
Section two amends article ten of the family court act by adding a new
section 1031-a which outlines the preliminary procedures to be taken
when a child who appears to be an abandoned infant is found. The commis-
sioner of the local social services department shall immediately take
protective custody of the infant. The local commissioner of social
services (local commissioner) shall commence a court proceeding at once
to determine whether the child is an abandoned infant. The information
to be included in the petition is provided. Upon receiving the petition,
the court shall appoint an attorney for the child to represent the
alleged abandoned infant. If the parents of the infant are unknown, the
court shall upon receipt of the petition, hold a hearing to determine
whether the child appears to have been abandoned in accordance with the
definition of abandoned infant provided in subdivision (1) of section
1012 of the family court act. If at the hearing the court determines
that the circumstances of the abandonment meet the definition of aban-
doned infant in said subdivision (1), the court shall order that the
local commissioner shall not be required to commence a diligent search
to locate the parents or other relatives of the child and shall require
the local commissioner to cause notice of the proceeding to be published
in the county in which the infant was found at least once in each of
three successive weeks. Service by publication is complete on the twen-
ty-first day after the day of first publication. The information the
notice shall contain is provided. In addition, the court, in determining
whether removal or continuing the removal of the child is necessary to
avoid imminent risk to the child's life or health, shall consider and
determine it its order whether continuation in the child's home would be
contrary to the best interests of the child and, where appropriate,
whether reasonable efforts were made prior to the date of the hearing to
prevent or eliminate the need for removal of the child from the home
and, if the child was removed from his home prior to the date of the
hearing, where appropriate, that reasonable efforts were made to make it
possible for the child to safely return home. If the court determines
that reasonable efforts to prevent or eliminate the need for removal of
the child from the home were not made but that the lack of such efforts
was appropriate under the circumstances, the court order shall include
such finding.
In the event that a person claiming to be the parent of the infant comes
forward, the local commissioner of social services shall immediately
provide written notification to both the court and the assigned attorney
for the child and cause a test to be conducted to confirm maternity or
paternity. If maternity or paternity is confirmed, the local commission-
er shall notify the court, which shall order an investigation pursuant
to section 1034(1) of the family court act. The existing order of custo-
dy of the child to the local commissioner shall continue pending the
result of the investigation. If there are grounds pursuant to subdivi-
sion (e) or (f) of section 1012 of the family court act to file a peti-
tion to determine abuse or neglect pursuant to section 1031 of the fami-
ly court act, the local commissioner shall file such petition within
three court days of the completion of the investigation. The parent or
parents shall be informed of the date and the time that the petition
shall be filed, the address of the court where the petition shall be
filed, the right of the parent to be present at any hearing held and the
right to be represented by counsel. Upon such filing, a hearing pursuant
to section 1027 of the family court act shall be held forthwith. If no
such grounds exist, the court shall dismiss the petition to determine
whether the infant is an abandoned infant and order that the child be
returned to his or her parent or parents.
Section three amends subdivision (a) of section 1039-b of the family
court act, as added by chapter 7 of the laws of 1999, regarding the
filing by the social services official of a motion requesting a finding
that reasonable efforts to return an abandoned infant to his or her home
are no longer required.
Section four amends subdivision (a) of section 1041 of the family court
act, as amended by chapter 1015 of the laws of 1972, by providing that
when a child is alleged to be an abandoned infant, a parent or person
legally responsible for such child does not have to appear in court nor
shall it be necessary to serve such person with a copy of the petition,
but the provisions of section 1031-a(d)(1)(3) shall apply.
Section five amends section 1044 of the family court act to provide that
the definition of "fact-finding hearing" includes a hearing to determine
whether a child is an abandoned infant as defined in the family court
act.
Section six amends the family court act by adding a new section 1051-a
to provide that in a fact finding hearing, the court shall determine
that the child is an abandoned infant if facts sufficient to constitute
clear and convincing evidence are established to find that the child was
thirty days old or younger when abandoned and that the child was left in
a manner that indicated the parent's intent to wholly abandon such child
by relinquishing and foregoing responsibility for and rights to the care
and custody of such child with the intent that the child be safe from
physical injury and cared for in an appropriate manner. Sufficient
evidence of the child's age and date of birth and intent to wholly aban-
don the child are: an affidavit or other official record of determi-
nation of a qualified health care practitioner who examined the child
that such child was thirty days old or younger when abandoned and the
date of birth of the child to a reasonable degree of certainty; an affi-
davit or official record, including a police report or testimony regard-
ing the manner of abandonment of the child; and an affidavit or official
record of the result of inquiries made to the putative father registry
and to local law enforcement officials regarding a missing person
report. If the court sustains the petition and finds that the child is
an abandoned infant, the court shall make a finding and issue a court
order that includes certain information as outlined in the bill. Should
the facts be insufficient to sustain the petition, the court shall
convert the petition to a proceeding to determine abuse or neglect
pursuant to section 1031 of the family court act and shall state on the
record the grounds for conversion. The court shall determine whether
temporary custody of the child to the local commissioner of social
services shall continue until further order of the court. In determining
whether removal or continuing the removal of the child is necessary to
avoid imminent risk to the child's life or health, the court shall
consider and determine in its order whether continuation in the child's
home would be contrary to the best interests of the child and, where
appropriate, whether reasonable efforts were made prior to the date of
the hearing to prevent or eliminate the need for removal of the child
from the home and, if the child was removed from his home prior to the
date of the hearing, where appropriate, that reasonable efforts were
made to make it possible for the child to safely return home. If the
court determines that reasonable efforts to prevent or eliminate the
need for removal of the child from the home were not made but that the
lack of such efforts was appropriate under t he circumstances, the court
order shall include such finding.
The court shall commence a dispositional hearing immediately after the
fact-finding hearing when the petition has been sustained and enter an
order of disposition that includes certain information as outlined in
the bill, including placing the child in the custody of the local
commissioner, who shall make reasonable efforts to place the child into
a pre-adoptive home. The local commissioner shall be required to
commence a proceeding to commit the guardianship and custody of the
infant to an authorized agency within sixty days and if the initial
permanency hearing has not been held, to set a date certain for an
initial permanency hearing.
Section seven amends paragraph (i) of subdivision (a) of section 1055 of
the family court act, as amended by section 12 of part G of chapter 58
of the laws of 2010, by adding that when custody is being determined for
an abandoned infant, the court may place the child in the custody of
certain named persons or a duly authorized association, agency, society
or institution suitable for the placement of a child.
Section eight amends paragraph (ii) of subdivision (b) of section 1055
of the family court act, as amended by section 18 of part A of chapter 3
of the laws of 2005, by providing that a diligent search of the child's
parents is not necessary if it has been determined that such child is an
abandoned infant.
Section nine amends subparagraph (i) of paragraph 1 of subdivision (b)
of section 1089 of the family court act, as amended by chapter 437 of
the laws of 2006, by providing that the requirement to serve notice on
the parents of a child does not apply when such child has been alleged
or found to be an abandoned infant and the identity of the parent or
parents is unknown.
Section ten amends subdivision (b) of section 1089 of the family court
act by adding new paragraphs 3 and 4. New paragraph 3 provides that
where a child who is not free for adoption has been alleged or found to
be an abandoned infant and the identity of such infant's parents is not
known, the local commissioner of social services shall cause notice of
the permanently hearing for an abandoned infant to be published in the
county in which such child was found. The notice shall contain certain
information as provided in the bill. New paragraph 4 provides that if,
within six months after the initial publication of notice of a proceed-
ing to determine whether a child is an abandoned infant, a person claim-
ing to be the mother or father of an infant who has been alleged or
found to be an abandoned infant comes forward and the maternity or
paternity of such person is confirmed by a test to confirm maternity or
paternity, the court shall order an investigation pursuant to section
1034(1) of the family court act. If there are grounds pursuant to subdi-
vision (e) or (f) of section 1012 of the family court act to file a
petition to determine abuse or neglect pursuant to section 1031 of the
family court act, the, local commissioner shall file such petition with-
in three court days. Upon such filing, a hearing pursuant to section
1027 of the family court act shall be held forthwith. If no such grounds
exist, the court shall hold a best interests hearing as to whether it is
in the best interests of the child to return the child to the child's
home or to continue the custody of the child with the local commission-
er. Except for good cause shown, such hearing shall be commenced within
three court days, The custody of the child with the local commissioner
shall continue pending the result of the best interests hearing. If
maternity or paternity is confirmed and the child is free for adoption,
the court shall vacate the order committing guardianship and custody of
the child.
Section eleven amends section 352 of the social services law by adding a
new subdivision 4 which provides that the requirement to locate the
parents of a child does not apply when such child is an abandoned
infant.
Section twelve adds a new paragraph (g) to subdivision 1 of section
352-a of the social services law relating to non-marital children. New
paragraph (g) provides that when such child is an abandoned infant there
shall be no requirement to establish paternity nor to locate the parents
of such infant.
Section thirteen amends subdivision 2 of section 371 of the social
services law, as amended by chapter 666 of the laws of 1976, and adds a
new subdivision 2-a. Subdivision 2, which defines "abandoned child," is
amended by providing gender-neutral language. New subdivision 2-a
defines "abandoned infant" by referencing the appropriate sections of
both the family court act and the social services law.
Section fourteen amends paragraph (ii) of subdivision 4-a of section 371
of the social services law, as added by chapter 782 of the laws of 1971,
by including "an abandoned child" and "an abandoned infant" in the defi-
nition of "neglected child" under section 371 of the social services
law.
Section fifteen amends the opening paragraph and paragraphs (b), (c) and
(d) of subdivision 1 of section 372 of the social services law by
providing that in the instance of abandoned infants, certain information
needed, such as the date of birth and apparent age of the infant,
certain records of the full names and places of birth of the infant's
parents, a certified copy of the court order determining that the child
was an abandoned infant, and the religious faith of the infant's parents
and the child, if known, shall be recorded by an alternate method as
designated in this section.
Section sixteen amends paragraph (e) of subdivision 3 of section 384-b
of the social services law, as amended by section 55 of part A of chap-
ter 3 of the laws of 2005, by providing that certain procedures with
regard to the notice petition for a termination hearing shall not apply
when the subject child is an abandoned infant. However, where such child
is an abandoned infant and the identity of the parents of the child is
unknown, the court shall require the local commissioner of social
services to publish notice of the hearing in the county in which such
child was found for at least thirty days. The information to be
included in the publication is provided. If at any time prior to or
subsequent to the entry of an order committing the guardianship and
custody of the child pursuant to section 384-b of the social services
law but not later than six months after the initial publication of
notice of a proceeding pursuant to section 1031-a of the family court
act, the maternity or paternity of a person claiming to be the mother or
father of the abandoned infant is confirmed by a test to be conducted to
confirm maternity or paternity, the proceeding shall be stayed pending
an investigation pursuant to section 1034(1) of the family court act.
Within three court days of the completion of the investigation, if there
are grounds pursuant to subdivision (e) or (f) of section 1012 of the
family court act to file a petition to determine abuse or neglect pursu-
ant to section 1031 of the family court act, the local commissioner
shall file such petition, or if there are no such grounds, the court
shall hold a hearing as to the best interests of the child. The custody
of the child with the local commissioner shall continue pending the
result of the beset interests hearing.
Section seventeen amends subparagraph (iii) of paragraph (1) of subdivi-
sion 3 of section 384-b of the social services law, as amended by chap-
ter 145 of the laws of 2000, and adds a new subparagraph (vi). Subpara-
graph (iii) provides that the date of the child's entry into foster care
is the earlier of sixty days after the date on which the child is
removed from the home or the date the child is found by a court to be an
abandoned infant or an abused or neglected child. New subparagraph (vi)
provides that a petition for the termination of parental rights shall be
filed within sixty days after a court determines that the infant is an
abandoned infant pursuant to section 1051-a of the family court act.
Section eighteen amends paragraphs (d) and (e) of subdivision 4 of
section 384-b of the social services law, paragraph (d) amended by chap-
ter 739 of the laws of 1981 and paragraph (e) as amended by section 56
of part A of chapter 3 of the laws of 2005, and adds a new paragraph (f)
that provides that guardianship and custody of such child shall be
granted when a parent or parents abandoned a child thirty days old or
younger in a manner that indicated the intent of the parent or parents
to wholly relinquish and forgo responsibility for and rights to the care
and custody of such child with the intent that the child be safe from
physical injury and cared for in an appropriate manner, and has not
communicated with the child or agency for a period of two months from
the date of abandonment.
Section nineteen amends subdivision 5 of section 384-b of the social
services law by adding a new paragraph (c) that provides that when a
child is an abandoned infant, the provisions of subdivision 5 which
provide certain criteria for determining that a child is "abandoned"
shall not apply.
Section twenty amends the social services law by adding a new section
392-a which provides special provisions regarding an abandoned infant
and procedures to be followed by the local commissioner of social
services, including publicizing the abandonment of the child through
local media outlets and specifically in the community where the abandon-
ment occurred, and the availability of prevention services, and referral
and counseling services to victims of domestic violence. The section
provides that if the maternity or paternity of a person claiming to be
the mother or father of the infant is confirmed by a test to confirm
maternity or paternity, the local commissioner shall conduct an investi-
gation pursuant to section 1034(1) of the family court act. If there are
no grounds pursuant to subdivision (e) or (f) of section 1012 of the
family court act, the local commissioner shall withdraw the petition to
determine whether a child is an abandoned infant; if there are grounds
pursuant to subdivision (e) or (f) of section 1012, the local commis-
sioner shall file a petition to determine abuse or neglect pursuant to
section 1031 of the family court act within three court days of the
completion of the investigation.
Section twenty-one amends section 372-g of the social services law, as
added by chapter 156 of the laws of 2000, to add that the office of
children and family services shall, in implementing a public information
program to inform the public regarding the provisions of the Abandoned
Infant Protection Act, inform the public regarding the availability of
safe placement alternatives for newborn infants, including termination
of parental rights and adoption procedures, and that an abandoned infant
is not a neglected child under the social services law or the family
court act. Such public information program shall also inform the general
public of the availability of prevention services, and referral and
counseling services to victims of domestic violence. The office of chil-
dren and family services shall develop and implement the public informa-
tion program within amounts appropriated or available by the state.
Section twenty-two provides the effective date.
JUSTIFICATION: Currently, all fifty states have laws, often termed
Safe Haven or Baby Moses legislation, to protect infants who are safely
abandoned. In 2000, New York enacted the Abandoned Infant Protection Act
(the Act) in order to allow a person to safely abandon an infant not
more than five days old with an appropriate person or in a suitable
location without the fear of criminal prosecution. Enacted to prevent
infanticides throughout the state, the 2000 Act amended the social
services law to require the Office of Children and Family Services
(OCFS) to develop and implement a public information program to inform
the general public of the new law. When originally enacted, the Act also
amended the penal law to provide an affirmative defense to criminal
prosecution for both the felony crime of abandonment of a child and the
misdemeanor crime of endangering the welfare of a child where a person
leaves an infant not more than five days old with an appropriate person
or in a suitable location and promptly notifies an appropriate person of
the child's location and does so with the intent that the child be safe
from physical injury and cared for in an appropriate manner. The penal
law was amended in 2010 to eliminate criminal liability altogether where
a person leaves an infant with an intent to wholly abandon the child by
relinquishing responsibility for and rights to the care and custody of
the child, with the intent that the child be safe from physical injury
and cared for in an appropriate manner, and leaves the infant with an
appropriate person or in a suitable location and promptly notifies an
appropriate person of the child's location, and the child is not more
than thirty days old.
The Act, however, made no changes to the family court act or to the
social services law. Therefore, under current law, a local social
services district is still required to search for the parents of the
abandoned infant and bring them before the court in an abandonment
proceeding. This leads to the unintended consequence of parents who fear
being identified abandoning their babies in an unsafe manner, leading to
injury to, and sometimes the death of, the infants. In addition, while
attempts are made to identify the infant's parents, abandoned infants
languish in foster care while the filing of a petition to terminate
parental rights and to free the infant for adoption is delayed.
This legislation seeks to amend the relevant provisions in social
services law and the family court act to provide for the safe and anony-
mous abandonment of an infant thirty days or younger, increased from
five days or younger, as is provided under penal law. In addition, the
bill will amend social services law and the family court act to provide
that upon a court determination that a child appears to have been aban-
doned in accordance with the definition of an abandoned infant, the
local commissioner of social services shall not be required to determine
the identity of the person who abandons an infant as provided and to set
forth the process that must be taken by local social services districts
to proceed with termination of parental rights proceedings and permanen-
cy hearings.
This legislation protects parental rights by providing a mechanism
through which a parent may come forward to establish maternal or pater-
nal rights at any time after abandonment until six months after the
first publication of the notice of the proceeding to determine whether a
child is an abandoned infant. The bill requires that upon receipt of
notice that a child who appears to be an abandoned infant has been
found, the local commissioner of social services shall commence a
proceeding to determine whether a child is an abandoned infant. If the
identity of the parents of the child is unknown, the court must first
hold a hearing to determine whether the child appears to have been aban-
doned in accordance with the definition of an abandoned infant. If at
such hearing the court determines that the circumstances of the abandon-
ment meet the definition of abandoned infant, the court shall require
the local commissioner to cause notice through publication in a newspa-
per in each of three successive weeks in the county in which the child
was found that an abandoned infant was found, the date, time and place
the abandoned infant was found, a description of the infant including
the approximate date of birth, and that if a parent does not appear at
the proceeding the child may be deemed an abandoned infant and placed
into the custody of the local commissioner. In addition, the local
commissioner is required to publicize the abandonment of the child
through local media outlets and specifically in the community where the
abandonment occurred. Furthermore, in order to sustain a petition alleg-
ing that a child is an abandoned infant, inquiries must have been made
to the putative father registry and to local law enforcement officials
regarding a missing person report. It should be noted, however, that in
the ten years since the Act was passed, we have learned that attempts at
reunification of the parent with the abandoned infant is most often not
in the best interest of that infant.
By increasing the age of an infant who is abandoned from five days or
younger to thirty days or younger, the legislation provides a parent
more time to consider whether to abandon his or her child and also to
come forward to establish parental rights should he or she have second
thoughts after abandoning the child. Increasing the age will also make
the age at which an infant is considered to be safely abandoned under
civil law consistent with the age at which an infant is considered to be
safely abandoned under criminal law and which allows the abandoning
parent not to be subject to criminal prosecution.
Without amending current law, local social services districts will
continue to search for the parent who abandons his or her child, causing
parents to fear being identified. That fear serves only to discourage a
woman from safely abandoning her infant. When a woman wants to abandon
her infant but fears not just prosecution, but also serious repercus-
sions from family or perhaps even an abusive spouse, or deportation, she
is more likely to abandon her infant in a way that results in injury to,
or even a tragic death for, that infant.
Furthermore, if a woman has concealed her pregnancy from the father, her
family, school or employer, she may attempt to give birth without the
assistance of a physician or other health care practitioner under less
than optimal conditions, thereby endangering her own health and safety.
In 2006, in the New York City area alone, twice as many dead newborns
were found abandoned as in the preceding year. Moreover, it is not only
confusing but also misleading to conduct a public information program
that "offers hope" to a mother and her baby, announcing that a woman can
safely abandon her baby "anonymously" when in fact current law requires
social service districts to search for the parent who abandoned the
child and subjects such parent to a neglect proceeding when found. We
have inadvertently set a trap for parents who feel compelled to abandon
their babies and want to do so in a safe manner, and at the same time
made it practically impossible for parents to abandon their babies in a
safe manner if they want to remain anonymous. In fact, because social
services districts are required by law to search for the abandoning
parents and do so with the assistance of law enforcement, including by
questioning hospital physicians and other personnel, it has been
reported that hospital physicians and staff are no longer willing to
assist pregnant women with their births because they fear being interro-
gated by law enforcement conducting an investigation into the abandon-
ment of a child and being compelled, under threat of prosecution, to
disclose the identity of a mother or other information relating to the
birth of her baby. It is incongruous to provide on the one hand that a
mother who safely abandons her child may not be subject to criminal
prosecution, yet is sought and if found, subject to a comprehensive
series of intrusive civil proceedings. Discovery of the abandoning moth-
er's identity may also endanger the safety of the mother.
This catch-22 faced by mothers is highlighted by a case in which a
newborn baby was found inside a shoe box, abandoned in the lobby of an
apartment building in Hempstead, New York. Although it appeared that the
parent of the newborn intended to leave the baby safely and anonymously,
her attempt at anonymity has been thwarted and precisely what the mother
likely feared has occurred: she became the subject of a very public
media campaign requesting information about her. It cannot be denied
that the public search for the mother in Hempstead will serve as a stark
illustration for pregnant women of what is in store for them should they
want, to safely abandon their babies. It then becomes less difficult to
imagine why a woman, who does not want or feels she cannot keep her
newborn, might believe she has no choice other than to abandon her baby
in a place or in a manner in which her identity cannot be traced, i.e.
in a dumpster or an alley.
By clarifying that social services districts need not, after procedural
safeguards have been met, search for a parent who safely abandons his or
her child or reunite the abandoned infant with his or her parent before
proceeding with a permanency plan for that infant, we will better
achieve the goal of protecting the safety and welfare of such infants.
Moreover, we will encourage women to give birth safely, thereby ensuring
the health and safety of the mothers.
In the ten-year period since the Act was passed, there have been one
hundred eighteen babies who have been safely abandoned pursuant to the
Act and one hundred twelve adoptions of those babies. The Act was
enacted to save the lives of unwanted, newborn infants. This legislation
furthers the intent of the Act and facilitates its implementation by
removing unintended barriers to its use, as well as enables the earlier
placement of abandoned infants in a permanent home.
PRIOR LEGISLATIVE HISTORY: A.336, 2011 and 2012 referred to judiciary.
Same as S.2712,2011 and 2012 referred to judiciary. Similar to A.6092D,
2009 and 2010, referred to judiciary. Similar to A.10528/5.7983, 2008
referred to judiciary. Same as S.7983, 2008 committed to rules.
FISCAL IMPLICATION: Positive impact on both the state and local social
services districts.
EFFECTIVE DATE: This act shall take effect on the one hundred eight-
ieth day after it shall have become law.
