Relates to orders of protection in termination of parental rights proceedings, child protective proceedings and permanency hearings regarding children freed for adoption

This measure would amend the termination of parental rights and permanent neglect statutes, Family Court Act §634 and Social Services Law §384-b, to add authority for Family Court, for good cause shown after giving the birth parent notice and an opportunity to be heard, to issue an order of protection in conjunction with an order of disposition committing guardianship and custody of a child. This order of protection may, among other conditions, prohibit the birth parent from contact with the child and the child's foster or pre-adoptive parent and may last for a period of up to five years or the date on which the youngest child turns eighteen, whichever is earlier. Second, the measure would amend Family Court Act §1089 to authorize such an order to be issued as part of the disposition of a permanency hearing. Third, the measure would amend Family Court Act §1056 to add a condition to orders of protection in child protective proceedings requiring respondent to stay away, inter alia, from a "person with whom the child has been paroled, remanded, placed or released by the court..."

That children and their new families are sometimes in critical need of these protections is clear from experience in numerous cases. Family Courts have had cases in which disturbed birth parents, whose rights had been terminated, have contacted children at their schools, followed them home from school, accosted children when playing outside their homes, called them repeatedly on their cell-phones and scared them at home upon having a third party knock on their door as a pretext. While not frequent, such instances cry out for legal remedies. Families in such situations should not be forced to pursue criminal prosecutions as their only means of obtaining relief to keep their children and families safe.

Fourth, as with orders of protection in family offense cases, orders of protection issued in child protective proceedings against individuals who are related by blood or marriage to the child or who were members of the child's household at the time of the disposition would be authorized to last up to two years or, upon findings of aggravating circumstances or a violation of an order of protection, up to five years. Such orders could be extended upon judicial review,

with notice to all affected parties, in the context of a permanency hearing under Article 10-A of the Family Court Act or other post dispositional proceeding under Article 10. The duration of orders against non-parents and former members of the household, pursuant to section 1056(4) of the Family Court Act would be unchanged, but the measure would explicitly permit the restrained party to return to court for modification or vacatur of the order of protection upon a showing of a substantial change of circumstances. Concomitantly, orders of protection in permanent neglect and other termination of parental rights proceedings would be authorized for periods of up to five years. These provisions for time-limited orders would, therefore, meet criticisms voiced by the Court of Appeals in Matter of Sheena D., 8 N.Y.3d 136 (2007), regarding lengthy orders of protection not subject to judicial scrutiny.

Finally, to optimize their effectiveness, the measure would require all of these orders of protection to be entered onto the statewide registry of orders of protection and warrants. The registry, established pursuant to the Family Protection and Domestic Violence Intervention Act of 1994 [L. 1994, cc. 222,224], has become an invaluable tool both for law enforcement and the courts. With well over two million orders of protection in the database,(1) and with the database connected to the comprehensive national "Protection Order File" maintained by the National Crime Information Center (Federal Bureau of Investigation), the registry helps to assure informed judgments at all stages of domestic violence cases. Significantly, legislation enacted in 2008 and amended in 2009 requires the registry to be checked in all Family and Supreme Court cases of child custody and visitation, thus making the registry a critically important resource in these cases as well. See L. 2008, c. 595; L. 2009, c. 295. All orders, including those in child protective, permanency, permanent neglect and other termination of parental rights proceedings, must be entered onto the registry in order for it to provide the protection necessary for all victims of family violence. Law enforcement and courts must have confidence in the completeness and accuracy of the responses to their inquiries regarding both the existence of outstanding orders, including possibly conflicting orders, and the parties' histories of orders of protection.

The importance of inclusion of these orders on the registry cannot be overemphasized. Domestic violence is often inextricably linked with child abuse and victims of domestic violence in child abuse and neglect cases, including victims who may be respondents in these proceedings, require as much protection from their abusers as in other proceedings.(2) If a child neglect proceeding is brought against the abuser, the order of protection issued to protect both the abuse victim and the children should provide as much protection as orders of protection issued in family offense and all other cases - a precept that compels inclusion of the order on the statewide domestic violence registry and, consequently, on the Federal "Protection Order File" as well. That domestic violence and child abuse frequently coexist in homes has been widely recognized, with estimates of the

overlap ranging from 40% to 60%.(3) Research has estimated that children are abused at a rate 1,500 times higher than the national average in homes where domestic violence is also present.(4) Significantly, child sexual abuse has also been closely correlated with domestic violence.(5) Therefore, inclusion of orders of protection in such cases on the registry will significantly advance the Legislature's goal of providing an integrated response in all family violence cases and of protecting all victims of domestic abuse, both parents and children, from suffering further violence.

This measure, which would have no fiscal impact upon the State, would take effect 90 days after becoming law.

2008 LEGISLATIVE HISTORY:

Senate 5847/Rules; Assembly 8861-A/Codes.

2009-10 Legislative History:

OCA 2009-31 Senate 3869 (Sen. Montgomery) (Ref to Children & Families

Footnotes

(1) Source: NYS Office of Court Administration Division of Technology.

(2) Victims of domestic violence may not be charged with child neglect by reason of their children's exposure to domestic violence, unless they have failed to exercise a minimum degree of care and unless the child is thereby placed in imminent risk of impairment. Nicholson v. Scoppetta, 3 N.Y.3d 357 (2004). However, there are respondents in neglect and abuse proceedings, who are themselves also victims of family offenses, who should be able to obtain protection for themselves and their children without the burden of initiating separate family offense proceedings in order to obtain this relief.

(3) See "The Impact of Domestic Violence on Children: A Report to the President of the American Bar Association" (Amer. Bar Assoc., 1994), p. 18; "Diagnostic and Treatment Guidelines on Domestic Violence" (Amer. Medical Assoc.,1992). See also M, Fields, "The Impact of Spouse Abuse on Children, and its Relevance in Custody and Visitation Decisions in New York State," 3 Cornell J. of Law and Pub. Policy 222, 224 (1994); A. Jones, Next Time She'll be Dead 84 (1994) [citing, E. Stark and A. Flitcraft, "Women and Children at Risk: A Feminist Perspective on Child Abuse," 18 Int'l' J. Health Services 1:97 (1988); L. McKibben, et a/., "Victimization of Mothers of Abused Children: A Controlled Study," 84 Pediatrics#3 (1989); L. Walker, The Battered Woman Syndrome 59 (1984)].

(4) "The Violence Against Women Act of 1990: Hearings on S. 2754," Senate Committee on the Judiciary, Report 1-545, 101st Cong., 2d Sess. 37 (1990)[cited in J. Zorza, "Woman Battering: A Major Cause of Homelessness," Clearinghouse Review (Special Issue, 1991)].

(5) L. Hoff, Battered Women as Survivors 240 (1990); M. Roy, Children in the Crossfire 89-90 (1988); Hewitt and Friedrich, "Effects of Probable Sexual Abuse on Preschool Children," in M.Q. Patton, ed., Family Sexual Abuse 59-74 (1991) [cited in J. Zorza, supra, at 424-425].