Relates to evidence of child neglect where respondent is enrolled in drug rehabilitation program

Summary of provisions

Section one amends subparagraph (B) of paragraph (i) of subdivision (f) of section 1012 of the Family Court Act to delete the language related to participation in a rehabilitation program, together with the presumption related to participation in such program.

Section two amends paragraph (iii) of subdivision (a) of section 1046 of the Family Court Act to delete the language related to the exception provided by participation in a rehabilitation program.

Section three adds a new subdivision (d) to section 1052 of the Family Court Act to provide that, following an adjudication of neglect where the respondent has been found to be misusing drugs or alcoholic beverages to the extent that self-control of his or her actions is lost, the court shall at the time of the final order of disposition, take into consideration the enrollment and satisfactory participation of the respondent in a recognized rehabilitation program, and the court may in connection with such order of disposition require the respondent to enroll and participate in such a pro gram.

Existing law

Provides that enrollment in a drug rehabilitation program is an affirmative defense to a finding of child neglect on drug abuse grounds.

Justification

Under current legislation, the respondent's voluntary and regular participation in a recognized rehabilitation program would exclude a presumption of neglect of the child in care, even where there has been evidence of repeated misuse of drugs or alcoholic beverages. Voluntary attendance in such a program is no assurance that drug or alcohol abuse has ceased as the respondent may still get obtain controlled substances on the streets. Also, the respondent may have returned to the misuse of drug and alcohol after completion of a rehabilitation program.

This exclusion of the normal presumption is confusing to child protective workers, lawyers and the courts and acts against the interests of children. It is unclear how the exception affects the burden of proof and whether participation in a rehabilitation program is a defense to an allegation of child neglect. This confusion has

been exacerbated as the number of neglect and abuse allegations involving drug use by a parent has increased enormously in recent years.

This legislation would clarify the law by retaining the presumption that misuse of drugs or alcohol constitutes a prima facie case of abuse or neglect. The participation of the parent in a rehabilitation program would be considered by the judge at disposition, along with other factors. The participation in the program would not, and should not, constitute a rebuttal of the presumption. It would be subject to the determination, based on the preponderance of the evidence, of what is in the best interest of the child. Further, the court may order the respondent, as part of the disposition, to enroll in a rehabilitation program to receive needed treatment.

Legislative history

2007-2008: S.1075 - Referred to Social Services, Children and Families 2005-2006: S.467 - Referred to Social Services, Children and Families 2003-2004: S.1917 - Passed Senate 2001-2002: S.395 - Passed Senate 2000: S.2722 - Passed Senate 1997-98: S.489 - Passed Senate 1995-96: S.2104 - Passed Senate 1993-94: S.3379 - Passed Senate

Fiscal implications

None.

Local fiscal implications

None.

Effective date

One hundred twenty days after it shall have become law.