NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2600
SPONSOR: Paulin (MS) TITLE OF BILL: An act to amend the family court act and the social
services law, in relation to severe or repeated child abuse in child
protective and termination of parental rights proceedings
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.
In 1981, the State Legislature added subdivision 8 to Social Services
Law § 384-b to create two additional grounds to support terminations of
parental rights: severe or repeated child abuse. See L. 1981, c. 739.
These grounds, however, were almost never utilized because of difficul-
ties of proof. In light of the lower quantum of proof required for a
child abuse finding under Article 10 of the Family Court Act as compared
to that which is required for termination of parental rights - a prepon-
derance of the evidence as compared to clear and convincing evidence -
the Article 10 child abuse findings that precipitated a child's entry
into foster care could not be used as proof of severe or repeated child
abuse in a subsequent termination of parental rights proceeding. The
original child abuse allegations would thus need to be retried, often
long after the fact, utilizing the higher standard of proof. In an
attempt to obviate the need to retry the child abuse charges, the Legis-
lature later amended Family Court Act § 1051 regarding fact-finding
orders as part of the State statute implementing the Federal Adoption
and Safe Families Act (Public Law 105-89). Family Court was thereby
authorized to render an additional finding of severe or repeated child
abuse as part of its fact-finding order in a child abuse proceeding so
long as the requisite proof by clear and convincing evidence had been
adduced. See L. 1999, c. 7.
Although the 1999 statute facilitated greater utilization of the severe
or repeated child abuse grounds for terminations of parental rights,
Family Courts encountered a significant obstacle to making the addi-
tional findings at the stage of the initial child abuse proceedings.
Moreover, the definition of severe abuse has not been updated since its
enactment 30 years ago to incorporate two serious sexual offenses that
were added to the Penal Law in 2006. We submit this measure to address
these problems.
First, the measure would eliminate the need for Family Court to include
a finding regarding provision of diligent efforts in order for the addi-
tional findings that may be rendered in a child protective proceeding
under Article 10 of the Family Court Act to be admissible in a proceed-
ing to terminate parental rights. Section 1051 would be amended to
provide that, in addition to child abuse findings by a preponderance of
evidence, Family Court may make findings in a child abuse proceeding by
clear and convincing evidence regarding the acts of abuse or the crimes
that comprise the definitions of severe or repeated child abuse, that
is, subparagraphs (i), (ii) and (iii) of paragraph (a) or subparagraphs
(i) and (ii) of paragraph (b), respectively, of Social Services Law §
384-b(8). While these findings would supply the requisite proof regard-
ing substantive allegations of abuse or crimes in a later termination of
parental rights proceeding brought on the grounds of severe or repeated
child abuse, the agency would nonetheless retain its obligation to prove
the additional element of diligent efforts - that is, Social Services
Law § 384-b(8)(a)(iv) or § 384-b(8)(b)(iii), respectively - as part of
its case in chief in the termination proceeding
The additional findings rendered at the child abuse stage would obviate
the need for the agency to retry the abuse allegations in the subsequent
termination of parental rights proceeding, but diligent efforts would
nonetheless need to be proven at that later stage, unless excused by the
Family Court. In a particularly egregious case, a child protective agen-
cy may move pursuant to Family Court Act § 1039-b for an order terminat-
ing its obligation to provide reasonable efforts to enable a child's
return home, thus allowing Family Court to render additional findings
that cover all of the elements of the severe or repeated child abuse
definition, including diligent efforts. However, such motions are rare
and more often it would be premature for Family Court to render a find-
ing regarding diligent efforts to reunite the family at the early stage
of the fact-finding hearing in a child abuse case. Several appellate
cases have reversed severe abuse findings that had been made in child
abuse proceedings where findings regarding diligent efforts had not been
included. See, e.g., Matter of Leon K., 63 A.D.3d 1069 (2nd Dept.,
2011); Matter of Candace S., 38 A.D. 2d 786 (2nd Dept., 2007), lve. app.
denied, 9 N.Y.3d 805 (2007); Matter of Latifah C., 34 A.D.3d 798 (2nd
Dept., 2006). Without altering the agency's obligation to meet its
burden of proving diligent efforts as part of its termination of
parental rights prima facie case, this measure would eliminate dupli-
cation by permitting the findings from the initial child abuse case
regarding the alleged act or acts of severe or repeated child abuse to
be used in a subsequent termination of parental rights proceeding.
Second, the measure would add sections 130.95 and 130.96 of the Penal
Law to the list of sexual offenses and other felonies that constitute
severe abuse, as defined in Social Services Law § 384-b(8)(a). These
offenses, both Class A-II felonies, carry criminal penalties for first
offenders of a minimum of 10 to 25 years and a maximum of life imprison-
ment, with longer sentences required for repeat and persistent offen-
ders. The two offenses add aggravating factors to - and are therefore
more serious than - the crimes already listed in Social Services Law §
384-b(8), specifically, rape in the first degree, criminal sexual act in
the first degree, aggravated sexual abuse in the first degree and course
of sexual conduct against a child in the first degree. Predatory sexual
assault, as defined in Penal Law § 130.95, enhances the penalties for
these crimes where the offender: causes serious physical injury to the
victim, uses or threatens the immediate use of a dangerous instrument,
commits the crime against one or more additional persons or has a prior
conviction for a felony sex offense, incest or use of a child in a sexu-
al performance. Predatory sexual assault against a child, as defined in
Penal Law § 130.96, enhances the penalties where the offender is 18
years of age or older and commits one of the enumerated crimes against a
victim under the age of 13 years old. Both of these predatory crimes,
among the most serious crimes in the Penal Law, warrant inclusion in the
definition of "severe abuse," both as grounds for termination of
parental rights and as bases for enhanced findings in child abuse
proceedings under Article 10 of the Family Court Act.
Enactment of this measure would make the promise of permanency a reality
for a group of children in out-of-home care who are most in need of new,
safe and stable families, that is, those who have been removed from the
care of parents who have been found to have committed the most serious
forms of child abuse.
This measure would have no fiscal impact upon the State, and would take
effect immediately.
2012 LEGISLATIVE HISTORY: Senate 7582 (Sen.Saland) Rules
Assembly 10051 (M.of A.Paulin,et al) Passed
