Provides that the court conduct a search for non-respondent alleged parents during a child protective and permanancy proceeding

Recent years have witnessed a sea-change in attitudes and policies concerning the role of non-respondent parents in child abuse and neglect proceedings under Article 10 of the Family Court Act. While child protective officials once ignored or discouraged non-respondent parents, especially non-respondent fathers, from participating in child protective proceedings concerning their children, these officials, prompted by substantial statutory changes during the past decade, now reach out to such parents to engage them in planning for their children's care.

Article 10 was drafted before these changes in attitude and policy, and, not surprisingly, it contains gaps and anomalies with respect to treatment of non-respondent parents. This measure addresses some of the more obvious shortcomings. It inserts statutory provisions explicitly to encourage greater participation by non-respondent parents in abuse or neglect proceedings concerning their children. It also expands options available to Family Court judges so they can craft appropriate orders respecting the rights of non-respondent parents while assuring the safety and well being of their children.

First, the measure adds definitions of "parent," "alleged parent" and "relative" to Family Court Act § 1012, to clarify the range of persons who may assert a parent's superior rights to care and custody of a child and to define a class of "alleged parents" entitled to notice of child protective proceedings concerning their children.

The proposed definition of "parent" provides that only a person recognized to be a child's legal parent may assert enhanced rights to care and custody recognized under State and Federal law. See, e.g., Bennett v. Jeffreys, 40 N.Y.2d 543 (1976)(state may not deprive parent of custody of child absent extraordinary circumstances); Prince v. Massachusetts, 321 U.S. 158, 166(1944)("It is cardinal with us that the custody, care and nurture of the child reside first in the parents..."). Recognizing that legal standards for parenthood are currently evolving, the measure adopts a flexible approach, providing a list of persons who "may" be considered parents under New York law: the birth mother, the spouse of the parent of a child born in wedlock, an adoptive parent, the father as established through

acknowledgment of paternity or a court order declaring his paternity. As case law on parenthood develops, persons in other relationships to the child may legally be recognized, and this measure allows for this possibility.

The proposed definition of "alleged parent" includes persons not recognized to be a child's legal parent, but who are listed on the putative father registry, have a pending paternity petition, were married to the child's parent within six months after the child's birth, or have been identified by the child's parent in a written sworn statement or by the child as a parent. Concomitantly, amendments to Family Court Act . 1017 include "alleged parents" in the list of persons that social services officials must inform of the pendency of child protective proceedings and advise of the opportunity to seek custody and care of the child. Addition of this proposed definition would establish a structure in Article 10 consistent with the framework applicable to adoption proceedings under the Domestic Relations Law, that is, "consent" fathers, whose consent is required for an adoption, and "notice" fathers, who merely have a right to be heard as to a child's best interests. See Domestic Relations Law 111, 111-a. It also would expand the scope of potential resources for children who have been removed from their homes, and encourage non-respondent birth fathers to establish their paternity and plan for their children.

The measure further defines "relative" as a person related to a child by blood, marriage or adoption, but not his or her parent or alleged parent. This distinction between "parents" and "relatives" will clarify the rights of each to the care and custody of a child in later sections of Article 10 of the Family Court Act.

Second, the measure amends section 1017 of the Family Court Act, which governs placement of a child who is the subject of an abuse or neglect case, both at the outset and at disposition. It would add "non-respondent alleged parents" and "other suitable persons identified by a child over the age of five who (play) or (have) played a significant positive role in his or her life" to the list of persons that the local commissioner of social services must seek to locate and inform of the pendency of the proceeding and of the opportunity to seek to care for the child. This should expand the universe of persons who potentially could provide care for a child otherwise facing the prospect of a foster care placement with strangers. To ensure uniformity in the information provided to those persons entitled to notice, the measure requires that the content of the notice be set by court rule.

The measure also deletes the definition of "non-respondent parent" currently in section 1017(1) in light of the proposed addition of a definition of "parent" in section 1012. It clarifies the format by referring specifically to "non-respondent parent, relative, or other suitable person" as potential resources a court may consider after

determining that a child must be removed from his or her home. Likewise, section 1017(2)(a)(i) would specify that a court may grant a temporary order of custody or guardianship to a non-respondent parent, relative, or other suitable person prior to disposition, or may grant a final order of custody or guardianship to such persons pursuant to section 1055-b at the dispositional stage.

The measure also would modify section 1017(2)(a)(ii), which currently provides that upon determining that a child may reside with a suitable non-respondent parent or other relative or suitable person, the court may place the child directly in the "care" of such person pursuant to Article 10. The measure would substitute the word "care" for "custody" to highlight the difference between an order of custody under Article 6 of the Family Court Act, as provided in section 1017(2)(a)(i), and an order of direct placement of the child under section 1017(2)(a)(ii).

Moreover, subdivision three of section 1017 would be amended to require that non-respondent parents, as well as relatives or other suitable persons, consent to a court's jurisdiction if a child is placed in their care under such section. It would replace the current authorization for a court to place "the person" with whom a child has been directly placed under the supervision of social services officials with authorization to order officials to supervise "the child" during the pendency of the proceeding. By requiring all persons in whose care a child is placed pursuant to section 1017 to consent to jurisdiction of the court, the court will be able to tailor orders, inter alia, to enlist cooperation of the caretaker to ensure that a child receives appropriate services, is produced for regular visitation by a respondent parent, siblings or others and is made available for interviews with the child's attorney. By so providing, the measure strikes a proper balance between intervention to ensure the child's well-being and respect for the non-respondent parent's or other caretaker's interests in minimal interference in their everyday child-rearing decisions. To this end, any order of supervision issued pursuant to section 1017 must specify terms and conditions that a non-respondent parent, relative or other suitable person must meet, and also actions that the social services agency must take.(1) These changes should provide a court with authority to issue appropriate orders to ensure a child's well-being during the pendency of the proceeding while giving all parties notice of what is to be required of them in order to facilitate effective implementation.

Third, the measure amends Article 10 of the Family Court Act relating to preliminary orders. It would amend section 1 022-a to clarify that non-respondent parents who qualify for assignment of counsel under section 262 of the Act are eligible for such assignments at pre-petition hearings held pursuant to section 1022. It also amends section 1027(d) to provide that a court may release a child to the "care" (as opposed to custody) of his or her parent pending a final order of disposition. It further deletes reference to section 1054 as

the source of a court's authority to do this, since that section only addresses dispositional orders, and instead substitutes a reference to section 1017, which pertains to pre-dispositional orders. Additionally, to facilitate and encourage the participation of non-respondent parents in proceedings regarding their children, section 1035 would be modified to require that notices of pendency of child protective proceedings sent to non-respondent parents also advise them that they have a right to counsel, including assigned counsel, if they are indigent. See Matter of Sasha S., 256 AD.2d 468 (2nd Dept., 1998) (required notice to non-respondent father of the right to counsel, including the right to appointment of counsel if he is indigent).

Fourth, as to dispositional proceedings, the measure makes several changes to section 1054, which authorizes release of children at disposition to a parent's care and is applicable to releases of children both to respondent and non-respondent parents. As currently drafted, section 1054 is unclear as to a court's ability to place a non-respondent parent under the supervision of a child protective agency, and also as to whether the scope of that supervision must be specified in the court order. The statute now provides that if an order of disposition releases a child to his or her "parent," the court may place "the person" to whose custody the child is released under the supervision of a child protective agency, social services official or duly authorized agency. The statute further provides, however, that an order of supervision entered under this section shall set forth, inter alia, the terms and conditions of such supervision that "respondent" must meet. Read literally, the statute suggests that if a court releases a child to a non-respondent or a respondent parent at disposition, it may place that parent under supervision at disposition, but only need specify the terms and conditions of that supervision in the case of a respondent parent. Accordingly, this measure amends § 1054 to parallel the proposed amendment of § 1017 by permitting a court, when it releases a child to a parent as a disposition, to order a child protective agency to supervise the child for a specified time period. It also would require the parent to consent to the court's jurisdiction for the period of such supervision, which may initially be for up to one year.

Section 1054 also would authorize a court to release a child to the care of a non-respondent parent while, at the same time, ordering that a respondent parent be placed under supervision under section 1057. This amendment would address the situation where a child's interests would best be served by residing with a non-respondent parent while the respondent parent receives services needed to enable the child's eventual return to him or her. Such arrangement would by its terms be of limited duration, since any orders for supervision of a child released to a non-respondent parent under section 1054 may last only up to one year, with provision for limited extension. If, during the period of a dispositional order, a respondent parent successfully completes the services or programs ordered, the court may, if

appropriate, utilize section 1061 to modify the order releasing the child to the non-respondent parent to permit release of the child to the respondent parent. Such order may continue supervision of the respondent parent pursuant to section 1057. Conforming amendments to the dispositional alternatives would also be made to section 1052.

Finally, the measure amends Family Court Act § 1055-b to clarify procedures for considering parents' requests for custody under article 6 of the Act at the dispositional stage of a child protective proceeding. It would resolve a serious inconsistency between sections 1055-b and 1017. Section 1017(2)(a)(i) currently provides that when a court determines that a child may reside with a suitable non-respondent parent, it may "grant an order of custody or guardianship to such non-respondent parent... pursuant to section one thousand fifty-five-b." However, section 1055-b now only pertains to "(c)ustody or guardianship with relatives or suitable persons pursuant to article six of (the Family Court Act)" and does not mention non-respondent parents; nor does it specify the standard by which to determine parents' requests for custody in this context. This measure would insert "parents" into the list of persons who may be granted article 6 custody pursuant to section 1055-b. It further makes clear that if someone other than a child's parents contests the custody petition, the court must grant custody to the parents in the absence of a showing of extraordinary circumstances pursuant to Bennett v. Jeffreys, supra. It also provides that, as in custody proceedings generally, if a respondent parent contests a non-respondent parent's request for custody, the standard by which to determine the custody application is the best interests of the child.

This measure would have no fiscal impact upon the State, and would take effect on the ninetieth day after it shall have become a law.

Legislative history

None. New proposal.

Footnote

(1) This is consistent with the holding in Doe v. Mattingly, 2006 WL 3498564 (E.D.N.Y., 2006)(Unpub.), which required a court order, absent an emergency, as a prerequisite to a caseworker entering the home of a non-respondent parent and conducting a body search of the baby in her care.