Relates to preliminary procedures, petitions and special provisions regarding abandoned 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 subdivision (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 commissioner 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 (l) 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 abandoned 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 twenty-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 commissioner shall notify the court, which shall order an investigation pursuant to section 1034(1) of the family court act. The existing order of custody of the child to the local commissioner shall continue pending the result 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 pursuant to section 1031 of the family 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 abandon the child are: an affidavit or other official record of determination 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 affidavit or official record, including a police report or testimony regarding 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 the 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 proceeding to determine whether a child is an abandoned infant, a person claiming 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 1 034( 1) of the family court act. 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 pursuant to section 1031 of the family court act, the, local commissioner shall file such petition within 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 commissioner. Except for good cause shown, such hearing shall be commenced within three court days. Th e 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 definition 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 chapter 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 1 031-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 pursuant 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 best interests hearing.

Section seventeen amends subparagraph (iii) of paragraph (1) of subdivision 3 of section 384-b of the social services law, as amended by chapter 145 of the laws of 2000, and adds a new subparagraph (vi). Subparagraph (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 chapter 739 of the laws of 1981 and paragraph (e) as amended by section 56 of part A of chapter 3 of the laws of2005, 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 abandonment 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 investigation 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 commissioner 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 children and family services shall develop and implement the public information 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 anonymous 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 abandoned 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 permanency hearings.

This legislation protects parental rights by providing a mechanism through which a parent may come forward to establish maternal or paternal 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 abandoned in accordance with the definition of an abandoned infant. If at such hearing the court determines that the circumstances of the abandonment meet the definition of abandoned infant, the court shall require the local commissioner to cause notice through publication in a newspaper 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 alleging 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 repercussions 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 interrogated by law enforcement conducting an investigation into the abandonment 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 mother's identity may also endanger the safety of the mother.

A recent case highlights this catch-22 faced by mothers. Last summer, a newborn baby was found inside a shoe box, abandoned in the lobby of an apartment building in Hempstead, New York. Although it appears 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.

There have been one hundred eighteen babies who have been safely abandoned pursuant to the Act and one hundred twelve adoptions of those babies since the law passed in 2000. ("Parents in Crisis Have Many Options for Giving Babies Haven Officials Say" by Tina Kelley, March 5, 2008, The New York Times.) 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

2007-2008: Similar to S.7983 - Referred to Judiciary, Advanced to Third Reading.

Fiscal implication

Positive impact on both the state and local social services districts.

Effective date

This act shall take effect on the one hundred eightieth day after it shall have become law.