Bill Text: NY A07857 | 2021-2022 | General Assembly | Introduced
Bill Title: Allows previous investigations in which the subject was indicated for child abuse or maltreatment using a credible evidence standard to be re-examined using a fair preponderance of the evidence standard.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2022-04-26 - held for consideration in children and families [A07857 Detail]
Download: New_York-2021-A07857-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7857 2021-2022 Regular Sessions IN ASSEMBLY May 28, 2021 ___________ Introduced by M. of A. BYRNES -- read once and referred to the Committee on Children and Families AN ACT to amend the social services law and the family court act, in relation to allowing previous investigations to be re-examined using a fair preponderance of the evidence standard The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 6 and 7 of section 412 of the social services 2 law, as amended by section 1 of part R of chapter 56 of the laws of 3 2020, are amended to read as follows: 4 6. An "unfounded report" means any report made pursuant to this title 5 unless an investigation[: (i) commenced on or before December thirty-6first, two thousand twenty-one determines that some credible evidence of7the alleged abuse or maltreatment exists; or (ii) commenced on or after8January first, two thousand twenty-two] determines that a fair prepon- 9 derance of the evidence of the alleged abuse or maltreatment exists; or 10 an investigation re-opened on or after January first, two thousand twen- 11 ty-two determines that a fair preponderance of the evidence of the 12 alleged abuse or maltreatment did not exist at the time of the original 13 investigation. 14 7. An "indicated report" means a report made pursuant to this title if 15 an investigation[: (i) commenced on or before December thirty-first, two16thousand twenty-one determines that some credible evidence of the17alleged abuse or maltreatment exists; or (ii) commenced on or after18January first, two thousand twenty-two] determines that a fair prepon- 19 derance of the evidence of the alleged abuse or maltreatment exists; or 20 an investigation re-opened on or after January first, two thousand twen- 21 ty-two determines that a fair preponderance of the evidence of the 22 alleged abuse or maltreatment existed at the time of the original inves- 23 tigation. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10965-01-1A. 7857 2 1 § 2. The opening paragraph of paragraph (a) of subdivision 5 of 2 section 422 of the social services law, as amended by section 3 of part 3 R of chapter 56 of the laws of 2020, is amended to read as follows: 4 Unless an investigation of a report conducted pursuant to this title 5 [that is commenced on or before December thirty-first, two thousand6twenty-one determines that there is some credible evidence of the7alleged abuse or maltreatment or unless an investigation of a report8conducted pursuant to this title that is commenced on or after January9first, two thousand twenty-two] determines that there is a fair prepon- 10 derance of the evidence that the alleged abuse or maltreatment occurred 11 or unless an investigation of a report conducted pursuant to this title 12 that is re-opened on or after January first, two thousand twenty-one 13 determines that a fair preponderance of the evidence of the alleged 14 abuse or maltreatment occurred, all information identifying the subjects 15 of the report and other persons named in the report shall be legally 16 sealed forthwith by the central register and any local child protective 17 services which investigated the report. Such unfounded reports may only 18 be unsealed and made available: 19 § 3. Paragraph (c) of subdivision 5 of section 422 of the social 20 services law, as amended by section 4 of part R of chapter 56 of the 21 laws of 2020, is amended to read as follows: 22 (c) Notwithstanding any other provision of law, the office of children 23 and family services may, in its discretion, grant a request to expunge 24 an unfounded report where: (i) the source of the report was convicted of 25 a violation of subdivision three of section 240.55 of the penal law in 26 regard to such report; [or] (ii) the subject of the report presents 27 clear and convincing evidence that affirmatively refutes the allegation 28 of abuse or maltreatment; [provided however, that the absence of a fair29preponderance of the evidence supporting the allegation of abuse or30maltreatment shall not be the sole basis to expunge the report] or (iii) 31 the report was re-opened on or after January first, two thousand twen- 32 ty-two and a determination was made that there was not a fair preponder- 33 ance of the evidence supporting the allegation of abuse or maltreatment 34 at the time of the original investigation. Nothing in this paragraph 35 shall require the office of children and family services to hold an 36 administrative hearing in deciding whether to expunge a report. Such 37 office shall make its determination upon reviewing the written evidence 38 submitted by the subject of the report and any records or information 39 obtained from the state or local agency which investigated the allega- 40 tions of abuse or maltreatment. 41 § 4. Section 651-a of the family court act, as amended by section 10 42 of part R of chapter 56 of the laws of 2020, is amended to read as 43 follows: 44 § 651-a. Reports of child abuse and maltreatment; admissibility. In 45 any proceeding brought pursuant to this section to determine the custody 46 or visitation of minors, a report made to the statewide central register 47 of child abuse and maltreatment, pursuant to title six of article six of 48 the social services law, or a portion thereof, which is otherwise admis- 49 sible as a business record pursuant to rule forty-five hundred eighteen 50 of the civil practice law and rules shall not be admissible in evidence, 51 notwithstanding such rule, unless an investigation of such report 52 conducted pursuant to title six of article six of the social services 53 law [commenced on or before December thirty-first, two thousand twenty-54one has determined that there is some credible evidence of the alleged55abuse or maltreatment, or unless an investigation of such report56conducted pursuant to title six of article six of the social servicesA. 7857 3 1law commenced on or after January first, two thousand twenty-two] deter- 2 mines that there is a fair preponderance of the evidence of the alleged 3 abuse or maltreatment, or unless an investigation of such report 4 conducted pursuant to title six of article six of the social services 5 law that is re-opened on or after January first, two thousand twenty-one 6 determines that a fair preponderance of the evidence of the alleged 7 abuse or maltreatment occurred, that the subject of the report has been 8 notified that the report is indicated. In addition, if such report has 9 been reviewed by the state commissioner of social services or his desig- 10 nee and has been determined to be unfounded, it shall not be admissible 11 in evidence. If such report has been so reviewed and has been amended to 12 delete any finding, each such deleted finding shall not be admissible. 13 If the state commissioner of social services or his designee has amended 14 the report to add any new finding, each such new finding, together with 15 any portion of the original report not deleted by the commissioner or 16 his designee, shall be admissible if it meets the other requirements of 17 this section and is otherwise admissible as a business record. If such a 18 report, or portion thereof, is admissible in evidence but is uncorrob- 19 orated, it shall not be sufficient to make a fact finding of abuse or 20 maltreatment in such proceeding. Any other evidence tending to support 21 the reliability of such report shall be sufficient corroboration. 22 § 5. Subparagraph (i) of paragraph (a) of subdivision 8 of section 422 23 of the social services law, as amended by chapter 12 of the laws of 24 1996, is amended and a new subparagraph (vi) is added to read as 25 follows: 26 (i) At any time subsequent to the completion of the investigation but 27 in no event later than ninety days after the subject of the report is 28 notified that the report is indicated, except where the investigation 29 was completed prior to January first, two thousand twenty-two, and the 30 subject requests that such report be re-opened pursuant to subparagraph 31 (vi) of this paragraph, the subject may request the commissioner to 32 amend the record of the report. If the commissioner does not amend the 33 report in accordance with such request within ninety days of receiving 34 the request, the subject shall have the right to a fair hearing, held in 35 accordance with paragraph (b) of this subdivision, to determine whether 36 the record of the report in the central register should be amended on 37 the grounds that it is inaccurate or it is being maintained in a manner 38 inconsistent with this title. 39 (vi) In cases where the investigation was completed prior to January 40 first, two thousand twenty-two and it was determined at a fair hearing 41 that there was credible evidence in the record to find that the subject 42 committed an act or acts of child abuse or maltreatment, the subject of 43 such report may request that such investigation be re-opened and re-exa- 44 mined using a standard of a fair preponderance of the evidence in the 45 record to find that the subject committed an act or acts of child abuse 46 or maltreatment within one year of the effective date of this subpara- 47 graph. 48 § 6. Items (I) and (II) of clause (A) of subparagraph (i) and subpara- 49 graph (ii) of paragraph (e) of subdivision 1 of section 424-a of the 50 social services law, as amended by section 9 of part R of chapter 56 of 51 the laws of 2020, are amended to read as follows: 52 (I) the time for the subject of the report to request an amendment or 53 re-opening of the record of the report pursuant to subdivision eight of 54 section four hundred twenty-two has expired without any such request 55 having been made; orA. 7857 4 1 (II) such request was made within such time and a fair hearing regard- 2 ing the request has been finally determined by the commissioner and the 3 record of the report has not been amended or re-opened to unfound the 4 report or delete the person as a subject of the report; and 5 (ii) If the subject of an indicated report of child abuse or maltreat- 6 ment has not requested an amendment or re-opening of the record of the 7 report and an inquiry is made to the office of children and family 8 services pursuant to this subdivision concerning the subject of the 9 report, such office shall, as expeditiously as possible but within no 10 more than ten working days of receipt of the inquiry, determine whether, 11 in fact, the person about whom an inquiry is made is the subject of an 12 indicated report. Upon making a determination that the person about whom 13 the inquiry is made is the subject of an indicated report of child abuse 14 and maltreatment, the office of children and family services shall imme- 15 diately send a written request to the child protective service or state 16 agency which was responsible for investigating the allegations of abuse 17 or maltreatment for all records, reports and other information main- 18 tained by the service or state agency on the subject. The service or 19 state agency shall, as expeditiously as possible but within no more than 20 twenty working days of receiving such request, forward all records, 21 reports and other information it maintains on the indicated report to 22 the office of children and family services, including a copy of any 23 petition or court order based on the allegations that were indicated. 24 Where a proceeding pursuant to article ten of the family court act is 25 pending based on the same allegations that were indicated, the office of 26 children and family services shall stay determination of whether there 27 is a fair preponderance of the evidence to support the indication until 28 the disposition of such family court proceeding. Unless such determi- 29 nation has been stayed, the office of children and family services 30 shall, within fifteen working days of receiving such records, reports 31 and other information from the child protective service or state agency, 32 review all records, reports and other information in its possession 33 concerning the subject and determine whether there is a fair preponder- 34 ance of the evidence to find that the subject had committed the act or 35 acts of child abuse or maltreatment giving rise to the indicated report. 36 § 7. This act shall take effect on the same date and in the same 37 manner as part R of chapter 56 of the laws of 2020 and shall apply to 38 all reports filed in the statewide central register of child abuse and 39 maltreatment.
