Clarify Abandoned Infant Procedures

Section 1. Paragraph (ii) of subdivision (f) and subdivision (j) of section 1012 of the family court act, paragraph (ii) of subdivision (f) as amended by chapter 666 of the laws of 1976 and subdivision (j) as amended by section 3 of part B of chapter 3 of the laws of 2005, are amended and a new subdivision (l) is added to read as follows:

(ii) who has been abandoned, in accordance with the definition and other criteria set forth in subdivision five of section three hundred eighty-four-b of the social services law, by his parents or other person legally responsible for his care, but shall not include an abandoned infant as defined in subdivision (l) of this section.

(j) "Aggravated circumstances" means where a child has been either severely or repeatedly abused, as defined in subdivision eight of section three hundred eighty-four-b of the social services law; or where a child has subsequently been found to be an abused child, as defined in paragraph (i) or (iii) of subdivision (e) of this section, within five years after return home following placement in foster care as a result of being found to be a neglected child, as defined in subdivision (f) of this section, provided that the respondent or respondents in each of the foregoing proceedings was the same; or where the court finds by clear and convincing evidence that the parent of a child in foster care has refused and has failed completely, over a period of at least six months from the date of removal, to engage in services necessary to eliminate

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD06294-01-7

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the risk of abuse or neglect if returned to the parent, and has failed to secure services on his or her own or otherwise adequately prepare for the return home and, after being informed by the court that such an admission could eliminate the requirement that the local department of social services provide reunification services to the parent, the parent has stated in court under oath that he or she intends to continue to refuse such necessary services and is unwilling to secure such services independently or otherwise prepare for the child's return home; provided, however, that if the court finds that adequate justification exists for the failure to engage in or secure such services, including but not limited to a lack of child care, a lack of transportation, and an inability to attend services that conflict with the parent's work schedule, such failure shall not constitute an aggravated circumstance; or where a court has determined a child [five] thirty days old or younger was abandoned by a parent with an intent to wholly abandon such child and with the intent that the child be safe from physical injury and cared for in an appropriate manner.

(l) "Abandoned infant" means a child who has been left by his or her parent when thirty days old or younger, in a manner that indicated the parent's intent to wholly abandon such child by relinquishing and foregoing responsibility for and rights to the care and custody of such child with the intent that the child be safe from physical injury and cared for in an appropriate manner.

§ 2. The family court act is amended by adding a new section 1031-a to read as follows:

§ 1031-a. Abandoned infants, preliminary procedure. (a) Upon receipt of notice that a child who appears to be an abandoned infant has been found in the jurisdiction of the local social services district, the local commissioner of social services shall immediately take protective custody of the child pursuant to section one thousand twenty-four of this article until further order of the court.

(b) A proceeding to determine whether a child is an abandoned infant pursuant to subdivision (l) of section one thousand twelve of this article shall be commenced by such local commissioner forthwith. The petition for such proceeding shall:

(i) allege the location and date of and the circumstances by which it is alleged that the child was abandoned; and

(ii) allege that upon information and belief, the child in question was thirty days old or younger when found.

(c) The court upon receipt of the petition shall appoint an attorney for the child to represent the child alleged to be an abandoned infant.

(d) If the identity of the parents of the child is unknown, the court upon receipt of the petition shall hold a hearing to determine whether the child appears to have been abandoned in accordance with the definition of abandoned infant provided in subdivision (1) of section one thousand twelve of this article.

(i) At such hearing, if the court determines that the circumstances of the abandonment meet the definition of abandoned infant in subdivision (1) of section one thousand twelve of this article, the court shall:

(A) order that the local commissioner of social services shall not be required to commence a diligent search to locate the parent or parents or other relatives of the child; and

(B) require the local commissioner of social services to cause notice of the proceeding to be published in accordance with the provisions of subdivision (a) of rule three hundred sixteen of the civil practice law and rules in the county in which such child was found, at least once in

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each of three successive weeks. Service by publication is complete on the twenty-first day after the day of the first publication. The notice shall state:

(1) the date, time and purpose of the proceeding;

(2) the date, time and place that the abandoned infant was found;

(3) a description of the infant including its approximate date of birth;

(4) that upon failure of the parent to appear, the child may be deemed an abandoned infant pursuant to subdivision (l) of section one thousand twelve of this article and placed into the care and custody of the commissioner of the local social services district in the parent's absence; and

(5) the name, address, and telephone number of the person designated by the local commissioner of social services to contact for information regarding such child.

(ii) In determining whether removal or continuing the removal of a child is necessary to avoid imminent risk to the child's life or health, the court shall consider and determine in its order whether continuation in the child's home would be contrary to the best interests of the child and where appropriate, whether reasonable efforts were made prior to the date of the hearing held under this subdivision to prevent or eliminate the need for removal of the child from the home and, if the child was removed from his or her home prior to the date of the hearing held under this subdivision, where appropriate, that reasonable efforts were made to make it possible for the child to safely return home. If the court determines that reasonable efforts to prevent or eliminate the need for removal of the child from the home were not made but that the lack of such efforts was appropriate under the circumstances, the court order shall include such a finding.

(e) If a person claiming to be a parent of the child in question who is alleged to be an abandoned infant, comes forward, the local commissioner of social services shall:

(i) provide written notification to the court and the attorney for the child forthwith; and

(ii) cause a test to be conducted to confirm maternity or paternity of the persons claiming to be the mother or father of the child in question; and if maternity or paternity is confirmed, notify the court which shall order an investigation pursuant to subdivision one of section one thousand thirty-four of this part. The existing order of custody of the child to the local commissioner of social services shall continue pending the result of the investigation.

(A) If there are grounds pursuant to subdivision (e) or (f) of section one thousand twelve of this article to file a petition to determine abuse or neglect pursuant to section one thousand thirty-one of this part, the local commissioner of social services shall file such petition within three court days of the completion of the investigation. The parent or parents shall be informed of the date and the time that the petition shall be filed, the address of the court where the petition shall be filed, of the right of the parent to be present at any hearing held thereon and of the right to be represented by counsel, including procedures for obtaining counsel if indigent. Upon such filing, a hearing pursuant to section one thousand twenty-seven of this article shall be held forthwith.

(B) If no such grounds exist, the court shall dismiss the petition and order that the child be returned to his or her parent or parents.

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§ 3. Subdivision (a) of section 1039-b of the family court act, as added by chapter 7 of the laws of 1999, is amended to read as follows:

(a) In conjunction with, or at any time subsequent to, the filing of a petition under section [ten hundred] one thousand thirty-one of this [chapter] part, the social services official may file a motion upon notice requesting a finding that reasonable efforts to return the child to his or her home are no longer required.

§ 4. Subdivision (a) of section 1041 of the family court act, as amended by chapter 1015 of the laws of 1972, is amended to read as follows:

(a) that the parent or other person legally responsible for the child's care is present at the hearing and has been served with a copy of the petition, unless the child is alleged to be an abandoned infant pursuant to section one thousand thirty-one-a of this article, in which event, the provisions of subparagraph (B) of paragraph (i) of subdivision (d) of section one thousand thirty-one-a of this article shall apply; or

§ 5. Section 1044 of the family court act, as added by chapter 962 of the laws of 1970, is amended to read as follows:

§ 1044. Definition of "fact-finding hearing". When used in this article, "fact-finding hearing" means a hearing to determine whether the child is an abused or neglected child or an abandoned infant as defined by this article.

§ 6. The family court act is amended by adding a new section 1051-a to read as follows:

§ 1051-a. Sustaining or dismissing a petition alleging a child is an abandoned infant. (a) At the fact-finding hearing scheduled pursuant to section one thousand thirty-one-a of this article, the court shall determine that the child is an abandoned infant and sustain the petition filed under section one thousand thirty-one-a of this article if facts sufficient to constitute clear and convincing evidence are established to find that the child was thirty days old or younger when abandoned and that the child was left in a manner that indicated his or her parent's intent to wholly abandon such child by relinquishing and foregoing responsibility for and rights to the care and custody of such child with the intent that the child be safe from physical injury and cared for in an appropriate manner. For purposes of finding that the child was thirty days old or younger when abandoned, an affidavit or other official record of a determination of a qualified health care practitioner, licensed or certified under title eight of the education law, acting within his or her lawful scope of practice who examined the child that such child was thirty days old or younger when abandoned and the date of birth of the child, to a reasonable degree of medical certainty; an affidavit or official record, including a police report or testimony regarding the manner of the abandonment of the child; and an affidavit or official record of the result of the inquiries made to the putative father registry and to local law enforcement officials regarding a missing person report, shall be sufficient evidence of the child's age and date of birth and the intent to wholly abandon the child.

(b) If the court sustains the petition and finds that the child is an abandoned infant, the court shall determine and find and shall state in its order:

(i) that the child was thirty days old or younger when abandoned to a reasonable degree of medical certainty;

(ii) the date the child was born, to a reasonable degree of medical certainty;

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(iii) that the child was left in a manner that indicated his or her parent's intent to wholly abandon the child by relinquishing and foregoing responsibility for and rights to the care and custody of such child with the intent that the child be safe from physical injury and cared for in an appropriate manner;

(iv) that based upon the findings of paragraphs (i) and (iii) of this subdivision, aggravated circumstances within the meaning of subdivision (j) of section one thousand twelve of this article exist; and

(v) that based upon such finding of aggravated circumstances, reasonable efforts to return the child to his or her home are not required.

(c) If facts sufficient to sustain the petition are not established due to a determination that either the child was older than thirty days at the time of abandonment or the child is not otherwise an abandoned infant as provided in this section, the court shall convert the petition to a proceeding to determine abuse or neglect pursuant to section one thousand thirty-one of this article and shall state on the record the grounds for the conversion.