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

Generally, the conclusion of a termination of parental rights proceeding marks the beginning of a new phase for a child in foster care, a significant step toward a stable, permanent home, most often through adoption. Sometimes, particularly in the case of kinship adoptions or mediated agreements, permanency is achieved with the understanding, agreed upon by everyone involved, that some contact should continue with the child's birth family and that such contact would be in the child's best interests. However, in some instances, continuing contact with the birth family would endanger the child and destabilize his or her new family. Indeed, in rare cases, stalking behavior by disturbed birth parents has posed a serious impediment to adoption of their children, causing ambivalence in prospective adoptive parents about whether to finalize an adoption and serious upset and harm to the children themselves. Unfortunately, since prospective adoptive or foster parents do not meet the definition of family under Article 8 of the Family Court Act, the current statutory structure provides no vehicle to protect children and their new families short of criminal prosecution for a non-family offense.

Another problem for victims of family violence, both adults and children, in child protective cases is the heavy burden created by the extremely short duration of orders of protection against family members, a period far shorter than applicable periods for orders in family offense, custody, visitation, child support and paternity proceedings. Section 1056(1) of the Family Court Act authorizes an order of protection against respondent parents, persons legally responsible for a child's care and such persons' spouses in child neglect and abuse proceedings to last only as long as a child protective dispositional order.

See Matter of Kole HH, 84 A.D.3d 1518 (3rd Dept., 2011); Matter of Patricia B., 61 A.D.3d 861 (2d Dept., 2009), lye. app. denied, 13 N.Y.3d 713 (2009); Matter of Andrew Y., 44 A.D.3d 1063 (2d Dept., 2007); Matter of Candace S., 38 A.D.3d 786 (2d Dept., 2007), lye. app. denied, 9 N.Y.3d 805 (2007); Matter of Amanda WW., 43 A.D.3d 1256 (3rd Dept., 2007); Matter of Collin H., 28 A.D.3d 806 (3rd Dept., 2006). Dispositions in child protective cases include, inter alia, release of a child under supervision for one year, subject to a one-year extension, or placement of a child until the next permanency hearing. Permanency hearings must be convened for children in foster care, as well as children directly placed with relatives and other "suitable persons," once they have been in care for eight months and then every six months thereafter. See Family Court Act §§ 1052,1054, 1055, 1057, 1089. These time limits are in sharp contrast to the duration limits of family offense orders of protection, which were

extended by the Legislature in 2003 to up to two years or, if aggravating circumstances or a violation of an order of protection are found, up to five years. See Family Court Act § 842 (L. 2003, c. 579). Orders of protection in custody, visitation and other civil proceedings in Supreme and Family Court may last for specified periods until the youngest child in the household reaches majority.

This measure would create a Family Court remedy for these deficiencies. First, it 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 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 the child. The order of protection may, among other conditions, bar a 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 until the date on which the youngest child in the household turns eighteen, whichever is earlier. Second, this measure would amend Family Court Act § 1089 to authorize issuance of such an order 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. Family Courts have had tragic cases in which disturbed birth parents, whose rights had been terminated, contacted children at their schools, followed them home from school, accosted them 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 on 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 the law now provides for orders of protection in family offense cases, this measure would permit such orders issued in child protective proceedings against respondent parents to last up to two years or, 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. Orders of protection against non-parents could last for any designated period up until the eighteenth birthday of the youngest child in the household pursuant to section 1056(4) of the Family Court Act. To provide an avenue for review, this measure would explicitly permit a restrained party to return to court for modification or vacatur of an 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 could be issued for periods of up to five years. These provisions for time-limited orders would, therefore, meet the 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, this measure would require all of these orders of protection to be entered onto the statewide registry of orders of protection and warrants. The importance of such entry cannot be overemphasized. Domestic violence often is 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 .* If a child neglect proceeding is brought against an 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%.** 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.*** Significantly, child sexual abuse has also been closely correlated with domestic violence.**** 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 a law.

Legislative History:

None. New proposal.

* 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.

** 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 Intl I Health Services 1:97 (1988); L. McKibben, et al., "Victimization of Mothers of Abused Children: A

Controlled Study," 84 Pediatrics #3 (1989); L. Walker, The Battered Woman Syndrome 59 (1984)).

*** "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))

**** 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).