Relates to severe or repeatedly abused children in child protective and parental termination proceedings

In 1981, the State Legislature added subdivision 8 to Social Services Law §384-0 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 difficulties 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 preponderance 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 Legislature later amended Family Court Act § 1051 regarding factfinding 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 additional 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 additional findings that may be rendered in a child protective proceeding under Article 10 of the Family Court Act to be admissible in a proceeding 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 §384b(8). While these findings would supply the requisite proof regarding 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 agency may move pursuant to Family Court Act 1039-b for an order terminating 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 finding 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 duplication 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 imprisonment, with longer sentences required for repeat and persistent offenders. 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 sexual 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.

Legislative history

None. New proposal.