Provides for the protection of the children of parents who abuse other children for whom they are legally responsible

Summary of provisions

Section 1. Amends subdivision (j) of section 1012 of the family court act to expand the definition of "aggravated circumstances" to include a person legally responsible for a child.

Section 2. Amends paragraph (i) of subdivision (a) of section 1046 of the family court act to include "aggravated circumstances" in addition to proof of abuse or neglect as admissible evidence in legal proceedings to determine if other children - who are the legal responsibility of the perpetrator of aggravated abuse - to be in imminent risk of neglect, abuse, or severe abuse.

Section 3. Amends paragraph (e) of subdivision 4 of section 384-b of the social services law to allow for a finding of severe abuse against a person who is not the parent of the target child in order to protect the children of that person; to allow that a termination of parental rights petition may be filed against a parent who has severely abused a child that they were not a parent of, but were legally responsible for, as it relates to freeing their own child for adoption; or to simply terminate the rights of that person to that child but without freeing the child for adoption.

Section 4. Amends subdivision 8 of section 384-b of the social services law to expand the definition of "severely abused" to include a person who is "legally responsible" for a child.

Section 5 is the enacting clause.

Justification

In cases where children are murdered or suffer severe physical or sexual abuse, the perpetrator is often a person who is not the child's biological parent but a "person legally responsible" as that term is defined in FCA § 1012 (g). These individuals are often a stepparent or a paramour of one of the birth parents. While the law permits an action of abuse to be brought against such a person, the law is unclear if an aggravated circumstance of severe abuse petition can be brought. It is further unclear if the actual children of the abuser - who may be half siblings to the abused child - can be protected from their abusive parent. This is because the legal definition of aggravated severe abuse is found in SSL § 384-b, which relates only to parents as it describes the grounds of termination of parental rights.

In order to protect children from those who have severely abused (including murdered) a child they were responsible for, the appropriate legal definitions must be clarified. Specifically, it must be clear that if a person has severely abused a child, then their own children can be subjects of derivative legal proceedings to help better protect those children.

Further, social services law must clarify that in such situations, there are grounds to terminate the parental rights of a person to their own children if they severely abused, including killed, a child that they were legally responsible for. In such cases, the court should be permitted to terminate the parental rights of a severe abuser - including when the subject child is not in foster care, and in cases where the court is only terminating the parental rights of the severely abusive parent.

These cases, while small in number, are the ones that make the headlines in this state and result in great frustration to the law enforcement, social services district and the courts who scramble to try to protect the children of a person who severely abused a child they were responsible for although not the parent. Many Judges have recognized the loophole in the law, in fact calling for the legislature to resolve the problem. See Matter of Meridth DS 13 Misc 3d 898 (Chemung County Family Court 2009), Matter of Nicholas S., 107 AD3d 1307, foot note 3 (3'd Dept. 2013), Matter of Leonard V 95 AD3d 1343 (2nd Dept. 2012)

Fiscal implications

Undetermined

Effective date

This act shall take effect the sixtieth day after is shall have become law.