Broadens the scope of child abuse and neglected child to include proof of a positive controlled substance toxicology report on a newborn infant

Summary of provisions

Section 1 sets forth the Legislative findings which recognize the state's public health and child welfare interest in intervening when a child tests positive for illegal drugs after birth.

Section 2 amends subdivision 4-a of section 371 of the social services law in regard to expanding the definition of a "neglected child" to include a newborn infant testing positive for a controlled substance.

Section 3 amends subdivision (f) of section 1012 of the family court act in regard to expanding the definition of a "neglected child" to include a newborn infant testing positive for a controlled substance.

Section 4 amends subdivision (b) of section 1028 of the family court act to establish a rebuttable presumption that the release of a newborn infant testing positive for a controlled substance to the patent(s) presents an imminent danger to the child's life or health as the court reviews an application to return a child temporarily removed from its parents.

Section 5 amends subdivision (a) of section 1046 of the family court act by adding a new paragraph establishing specific conditions of a newborn infant testing positive for controlled substances as prima facie proof of neglect in a dispositional hearing.

Section 6 amends subdivision (d) of section 1051 of the family court act to establish a rebuttable presumption that the release of a newborn infant testing positive for a controlled substance to the parent(s) presents an imminent danger to the child's life or health as the court reviews the facts to determine if a petition of neglect is dismissed or sustained.

Justification

Regrettably, drug addiction, in pregnant women and corresponding fetal drug exposure is an epidemic that has expanded drastically since the 1980's. A large body of professional literature from the fields of pediatrics, obstetrics and the social sciences have documented a multi-million dollar problem whose effect on a generation of young Americans is still being discovered.

Illegal drug use during pregnancy creates a high degree of risk that newborns will exhibit neurobehavioral and circulatory health

complications. These complications include neurological defects, learning disabilities, low cognition, physical and developmental delay, and low birth weight.

Furthermore, in utero drug exposure is certainly evidence of the real possibility of further neglect or abuse. However, under the current appellate case law in this state (Nassau County D. S. S. and Denise J.), proof of drug abuse during pregnancy by a positive toxicology report for drugs in the child is insufficient in and of itself to support a fact finding of child neglect under Article 10 of the Family Court Act.

It is a sad commentary indeed that at present, infants born with such a positive toxicology must, without additional evidence of neglect be discharged home without support, supervision or intervention - only to await the occurrence of other neglect, injury or even death before the state can intervene.

By allowing social service officials to intervene before the child is sent home, this legislation seeks to remedy this horrendous injustice which often sends society's most vulnerable and innocent individuals to face further neglect, maltreatment and abuse at the hands of their own parent.

Legislative history

1996: S.5732-A Passed Senate/Assembly Children and Families. 2003-04: A4839/S1014 Referred to Children and Families 2005-06: A5103/S490 Referred to Children and Families 2007-08: A4424/S2040 Referred to Children and Families 2011-12: A9327/S995 Referred to Children and Families 2013-14: Referred to Children and Families S6375

Fiscal implications

None.

Effective date

This act shall take effect immediately.