S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                          755
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                      (PREFILED)
                                    January 7, 2015
                                      ___________
       Introduced  by  Sen. KENNEDY -- read twice and ordered printed, and when
         printed to be committed to the Committee on Children and Families
       AN ACT to amend the social services law and the  family  court  act,  in
         relation to proof of a neglected or abused child
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Legislative findings. The legislature  finds  and  declares
    2  that  infants  who  are  born  drug-exposed  and drug-addicted must be a
    3  priority of our state's public health and child welfare systems.   Ille-
    4  gal  drug addiction in pregnant women and corresponding fetal drug expo-
    5  sure is an epidemic that has expanded in virtually geometric  proportion
    6  since  the  1980's  with  the advent of cheap, smokeable free base crack
    7  cocaine.
    8    A large body of professional literature from the fields of pediatrics,
    9  obstetrics and the social sciences has documented a multi-million dollar
   10  problem whose effect on a generation of young Americans is  still  being
   11  discovered.  Unfortunately,  the  laws and jurisprudence of the state of
   12  New York have  failed  to  adequately  and  appropriately  address  this
   13  burgeoning crisis.
   14    The  legislature  further  finds  and  declares  that illegal drug use
   15  during pregnancy creates a high degree of risk that newborns will exhib-
   16  it neurobehavioral and circulatory health complications.  These  compli-
   17  cations  include neurological defects, learning disabilities, low cogni-
   18  tion, physical and developmental delay, and low birth weight.
   19    Moreover, other states have  recognized  in  utero  drug  exposure  as
   20  correlative  to  the  likelihood  of further abuse or neglect during the
   21  child's infancy. Such recognition has led to statutory revisions causing
   22  in utero drug exposure to be presumptive  evidence  of  child  abuse  or
   23  neglect  and  thereby  warranting  immediate  child  protective services
   24  intervention.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00201-01-5
       S. 755                              2
    1    The intervention of the state into the integrity of  the  family  unit
    2  should  be exercised cautiously. However, where the very life and safety
    3  of the most vulnerable segment of society is  in  question,  the  inter-
    4  vention of the state must be aggressive and consistent.
    5    Under  the  current appellate case law in this state, proof of illegal
    6  drug abuse during pregnancy  as  manifested  by  a  positive  toxicology
    7  report  for  drugs  in  the  child  is  insufficient in and of itself to
    8  support a fact finding of child neglect under article 10 of  the  family
    9  court act.
   10    Current  state  office  of children and family services policy states:
   11  "Evidence that a newborn infant tests positive  for  a  drug.....in  its
   12  bloodstream or urine; is born dependent on drugs or with drug withdrawal
   13  symptoms....;  or  has been diagnosed as having a condition which may be
   14  attributable to in utero exposure to drugs.....is not sufficient, in and
   15  of itself, to support a determination that the child is  mistreated.  In
   16  addition,  such  evidence  alone  is not sufficient for a social service
   17  district to take protective custody of such a child."
   18    As a consequence, a positive  toxicology  report,  without  additional
   19  supporting  evidence,  may  not  be used to "indicate" a report of child
   20  abuse or maltreatment  to  the  State  Central  Register  of  Abuse  and
   21  Maltreatment.    This  policy creates an unacceptable risk to New York's
   22  most vulnerable citizens: newborn infants.
   23    At present, infants born with such a positive toxicology must, without
   24  additional evidence of neglect, be  discharged  home  without  mandating
   25  support,  supervision  or intervention - only to await the occurrence of
   26  other neglect, injury or even death  before  protective  action  can  be
   27  taken.
   28    While intending to protect children, laws that essentially require the
   29  child to be injured or harmed before help is offered are fatally flawed.
   30  The  tragic  consequences of such defective laws are needless and avoid-
   31  able particularly when at the time of birth authorities are aware of  an
   32  immediate problem.
   33    The  legislature finds that more than sufficient research and scholar-
   34  ship exist to find the strongest possible causation between illegal drug
   35  use during pregnancy and risk to the health and welfare of a  child.  It
   36  is  therefore  the intent of this legislature that proof of illegal drug
   37  use during pregnancy as manifested by a positive toxicology  report  is,
   38  in  and of itself, the basis for a prima facie finding that the child is
   39  a neglected child.
   40    S 2. Subdivision 4-a of section 371 of the  social  services  law,  as
   41  added  by chapter 782 of the laws of 1971, subparagraph (B) of paragraph
   42  (i) as amended by chapter 984 of the laws of 1981, is amended to read as
   43  follows:
   44    4-a. "Neglected child" means a child less than eighteen years of age
   45    (i) whose physical, mental or emotional condition has been impaired or
   46  is in imminent danger of becoming impaired as a result of the failure of
   47  his OR HER parent or other person legally responsible  for  his  OR  HER
   48  care to exercise a minimum degree of care
   49    (A)  in  supplying  the  child  with adequate food, clothing, shelter,
   50  education, medical or surgical care, though financially able to do so or
   51  offered financial or other reasonable means to do so; or
   52    (B) in providing the child with proper supervision or guardianship, by
   53  unreasonably inflicting or allowing to be inflicted harm, or a  substan-
   54  tial  risk  thereof,  including  the  infliction  of  excessive corporal
   55  punishment; or by misusing a drug or drugs;  or  by  misusing  alcoholic
   56  beverages  to the extent that he OR SHE loses self-control of his OR HER
       S. 755                              3
    1  actions; or by any other acts of a similarly  serious  nature  requiring
    2  the  aid  of  the court; provided, however, that where the respondent is
    3  voluntarily and regularly participating  in  a  rehabilitative  program,
    4  evidence  that  the respondent has repeatedly misused a drug or drugs or
    5  alcoholic beverages to the extent that he OR SHE loses  self-control  of
    6  his  OR  HER  actions  shall not establish that the child is a neglected
    7  child in the absence of evidence establishing that the child's physical,
    8  mental or emotional condition has been impaired or is in imminent danger
    9  of becoming impaired as set forth in THIS paragraph [(i) of this  subdi-
   10  vision]; or
   11    (ii)  WHO,  AS  A  NEWBORN  INFANT,  TESTS  POSITIVE  FOR A CONTROLLED
   12  SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR  HER  BLOODSTREAM  OR
   13  URINE,  IS  BORN DEPENDENT ON SUCH DRUGS OR DEMONSTRATES DRUG WITHDRAWAL
   14  SYMPTOMS, OR HAS BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT-
   15  ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS; OR
   16    (III) who has been abandoned by his OR HER  parents  or  other  person
   17  legally responsible for his OR HER care.
   18    S 3. Subdivision (f) of section 1012 of the family court act, as added
   19  by chapter 962 of the laws of 1970, subparagraph (A) of paragraph (i) as
   20  amended  by  chapter  469 of the laws of 1971, subparagraph (B) of para-
   21  graph (i) as amended by chapter 984 of the laws of  1981  and  paragraph
   22  (ii)  as  amended by chapter 666 of the laws of 1976, is amended to read
   23  as follows:
   24    (f) "Neglected child" means a child less than eighteen years of age
   25    (i) whose physical, mental or emotional condition has been impaired or
   26  is in imminent danger of becoming impaired as a result of the failure of
   27  his OR HER parent or other person legally responsible  for  his  OR  HER
   28  care to exercise a minimum degree of care
   29    (A)  in  supplying  the child with adequate food, clothing, shelter or
   30  education in accordance with the  provisions  of  part  one  of  article
   31  sixty-five  of  the  education  law, or medical, dental, optometrical or
   32  surgical care, though financially able to do so or offered financial  or
   33  other reasonable means to do so; or
   34    (B) in providing the child with proper supervision or guardianship, by
   35  unreasonably  inflicting or allowing to be inflicted harm, or a substan-
   36  tial risk  thereof,  including  the  infliction  of  excessive  corporal
   37  punishment;  or  by  misusing  a drug or drugs; or by misusing alcoholic
   38  beverages to the extent that he OR SHE loses self-control of his OR  HER
   39  actions;  or  by  any other acts of a similarly serious nature requiring
   40  the aid of the court; provided, however, that where  the  respondent  is
   41  voluntarily  and  regularly  participating  in a rehabilitative program,
   42  evidence that the respondent has repeatedly misused a drug or  drugs  or
   43  alcoholic  beverages  to the extent that he OR SHE loses self-control of
   44  his OR HER actions shall not establish that the  child  is  a  neglected
   45  child in the absence of evidence establishing that the child's physical,
   46  mental or emotional condition has been impaired or is in imminent danger
   47  of  becoming impaired as set forth in THIS paragraph [(i) of this subdi-
   48  vision]; or
   49    (ii) WHO, AS  A  NEWBORN  INFANT,  TESTS  POSITIVE  FOR  A  CONTROLLED
   50  SUBSTANCE  NOT  PRESCRIBED  BY A PHYSICIAN, IN HIS OR HER BLOODSTREAM OR
   51  URINE, IS BORN DEPENDENT ON SUCH DRUGS OR DEMONSTRATES  DRUG  WITHDRAWAL
   52  SYMPTOMS, OR HAS BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT-
   53  ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS; OR
   54    (III)    who has been abandoned, in accordance with the definition and
   55  other criteria set forth in subdivision five of  section  three  hundred
       S. 755                              4
    1  eighty-four-b of the social services law, by his OR HER parents or other
    2  person legally responsible for his OR HER care.
    3    S  4.  Subdivision  (b)  of  section  1028 of the family court act, as
    4  amended by chapter 145 of the laws  of  2000,  is  amended  to  read  as
    5  follows:
    6    (b) In determining whether temporary removal of the child is necessary
    7  to  avoid  imminent  risk to the child's life or health, the court shall
    8  consider and determine in its order whether continuation in the  child's
    9  home  would  be  contrary  to  the best interests of the child and where
   10  appropriate, whether reasonable efforts were made prior to the  date  of
   11  the  hearing  to  prevent or eliminate the need for removal of the child
   12  from the home and where appropriate,  whether  reasonable  efforts  were
   13  made  after  removal  of  the child to make it possible for the child to
   14  safely return home.
   15    IN A CASE INVOLVING A NEWBORN INFANT TESTING POSITIVE FOR A CONTROLLED
   16  SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR  HER  BLOODSTREAM  OR
   17  URINE, BORN DEPENDENT ON SUCH DRUGS, DEMONSTRATING DRUG WITHDRAWAL SYMP-
   18  TOMS,  OR HAVING BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT-
   19  ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS, SUCH  STATUS  OF  THE  CHILD
   20  SHALL  ESTABLISH A REBUTTABLE PRESUMPTION THAT THE RELEASE OF THE INFANT
   21  TO THE PARENT PRESENTS AN IMMINENT DANGER TO THE CHILD'S LIFE OR HEALTH.
   22    S 5. Paragraphs (vii) and (viii) of subdivision (a) of section 1046 of
   23  the family court act, paragraph (vii) as amended by chapter 432  of  the
   24  laws  of  1993 and paragraph (viii) as added by chapter 1015 of the laws
   25  of 1972, are amended and a new  paragraph  (ix)  is  added  to  read  as
   26  follows:
   27    (vii)  neither  the privilege attaching to confidential communications
   28  between husband and wife, as set forth in section forty-five hundred two
   29  of the civil practice law  and  rules,  nor  the  physician-patient  and
   30  related  privileges,  as set forth in section forty-five hundred four of
   31  the civil practice law and rules, nor the psychologist-client privilege,
   32  as set forth in section forty-five hundred seven of the  civil  practice
   33  law  and  rules, nor the social worker-client privilege, as set forth in
   34  section forty-five hundred eight of the civil practice  law  and  rules,
   35  nor  the rape crisis counselor-client privilege, as set forth in section
   36  forty-five hundred ten of the civil practice law and rules, shall  be  a
   37  ground  for  excluding  evidence which otherwise would be admissible[.];
   38  AND
   39    (viii) proof of the "impairment of emotional health" or "impairment of
   40  mental or emotional condition" as  a  result  of  the  unwillingness  or
   41  inability  of the respondent to exercise a minimum degree of care toward
   42  a child may include  competent  opinion  or  expert  testimony  and  may
   43  include  proof  that  such  impairment lessened during a period when the
   44  child was in the care, custody or supervision  of  a  person  or  agency
   45  other than the respondent[.]; AND
   46    (IX)  PROOF  THAT  A  NEWBORN  INFANT  TESTS POSITIVE FOR A CONTROLLED
   47  SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN, IN HIS OR  HER  BLOODSTREAM  OR
   48  URINE,  IS  BORN  DEPENDENT  ON SUCH DRUGS, DEMONSTRATES DRUG WITHDRAWAL
   49  SYMPTOMS, OR HAS BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUT-
   50  ABLE TO IN UTERO EXPOSURE TO ILLEGAL DRUGS SHALL BE PRIMA FACIE PROOF OF
   51  NEGLECT.
   52    S 6. Subdivision (d) of section 1051  of  the  family  court  act,  as
   53  amended  by  chapter  478  of  the  laws  of 1988, is amended to read as
   54  follows:
   55    (d) If the court makes a finding of abuse or neglect, it shall  deter-
   56  mine,  based  upon the facts adduced during the fact-finding hearing and
       S. 755                              5
    1  any other additional facts presented to it, whether a preliminary  order
    2  pursuant  to  section  one  thousand  twenty-seven  OF  THIS  ARTICLE is
    3  required to protect the child's  interests  pending  a  final  order  of
    4  disposition. The court shall state the grounds for its determination. In
    5  addition,  a  child  found  to be abused or neglected may be removed and
    6  remanded to a place approved  for  such  purpose  by  the  local  social
    7  services  department  or  be placed in the custody of a suitable person,
    8  pending a final order of disposition, if the court finds that there is a
    9  substantial probability that the final order of disposition will  be  an
   10  order  of  placement under section one thousand fifty-five OF THIS PART.
   11  In determining whether substantial probability exists, the  court  shall
   12  consider  the  requirements  of  subdivision (b) of section one thousand
   13  fifty-two OF THIS PART.  PROVIDED, HOWEVER, THAT IN A CASE  INVOLVING  A
   14  NEWBORN   INFANT   TESTING  POSITIVE  FOR  A  CONTROLLED  SUBSTANCE  NOT
   15  PRESCRIBED BY A PHYSICIAN, IN HIS OR  HER  BLOODSTREAM  OR  URINE,  BORN
   16  DEPENDENT  ON  SUCH  DRUGS,  DEMONSTRATING  DRUG WITHDRAWAL SYMPTOMS, OR
   17  HAVING BEEN DIAGNOSED AS HAVING A CONDITION WHICH IS ATTRIBUTABLE TO  IN
   18  UTERO  EXPOSURE  TO ILLEGAL DRUGS, SUCH STATUS OF THE CHILD SHALL ESTAB-
   19  LISH A REBUTTABLE PRESUMPTION THAT THE RELEASE  OF  THE  INFANT  TO  THE
   20  PARENT PRESENTS AN IMMINENT DANGER TO THE CHILD'S LIFE OR HEALTH.
   21    S 7. This act shall take effect immediately.