NCJ Number
48580
Journal
Buffalo Law Review Volume: 20 Issue: 2 Dated: (WINTER 1971) Pages: 561-566
Date Published
1971
Length
6 pages
Annotation
A REVIEW OF LEGISLATIVE REVISIONS PERTAINING TO CHILD PROTECTION PROCEEDINGS FOR DEALING WITH CHILD ABUSE PROBLEMS, AS PUT FORTH IN ARTICLE 10 OF THE NEW YORK FAMILY COURT ACT, IS PRESENTED.
Abstract
ENACTED IN 1962, THE FAMILY COURT ACT PROVIDED LEGISLATION FOR CHILD NEGLECT BUT MADE NO SEPARATE PROVISIONS FOR THE HANDLING OF CHILD ABUSE. A CHILD ABUSE ARTICLE ADDED IN 1969 HAS PRESENTED CONSTITUTIONAL AND ADMINISTRATIVE PROBLEMS. ARTICLE 10 PROVIDES A REMEDY FOR SOME OF THESE PROBLEMS AND REPRESENTS A REVISION AND CONSOLIDATION OF PREVIOUS CHILD ABUSE AND NEGLECT LEGISLATION. SECTION 1,046 OF ARTICLE 10 PROVIDES THAT PROOF OF REPEATED DRUG ABUSE SHALL BE PRIMA FACIE EVIDENCE THAT SUCH AN ABUSER'S CHILD IS NEGLECTED. AS SUCH, SECTION 1,046 COULD PRESENT A VIOLATION OF DUE PROCESS IF MANDATORY REMOVAL OF THE CHILD WERE FOLLOWED BY THE COURT. THE REVISION ELIMINATES MANDATORY REMOVAL AND SO LESSENS THE CHANCE OF A CONSTITUTIONAL ISSUE. FURTHER, THE PARENT NOW HAS THE OPTION OF OFFERING A REBUTTAL AND THE JUDGE'S DETERMINATION IS LIMITED TO A FINDING OF NEGLECT. PREVIOUSLY, RELEVANT EVIDENCE WAS ADMISSIBLE IN A DISPOSITIONAL HEARING AND COMPETENT, MATERIAL, AND RELEVANT EVIDENCE WAS ADMISSIBLE IN A FACT-FINDING HEARING. UNDER THE REVISION, REQUIREMENTS FOR THE ADMISSIBILITY OF EVIDENCE HAVE BEEN RELAXED. FOR INSTANCE, PROOF OF ABUSE OF THE ONE CHILD IS NOW ADMISSIBLE IN HEARINGS TO DETERMINE ABUSE OF ANOTHER CHILD BY THE SAME RESPONDENT AND PRIOR STATEMENTS OF A CHILD RELATING TO ABUSE/NEGLECT ARE NOW EXPRESSLY ADMISSIBLE. THE TERMS 'CHILD NEGLECT' AND 'CHILD ABUSE' HAVE ALSO BEEN REDEFINED UNDER THE NEW LEGISLATION. NEGLECT NOW REFERS TO LACK OF PROPER SUPERVISION OR GUARDIANSHIP BY UNREASONABLY INFLICTING OR ALLOWING TO BE INFLICTED UPON THE CHILD SUBSTANTIAL HARM. CHILD ABUSE AS REDEFINED REFERS TO THE INFLICTING OR ALLOWING TO BE INFLICTED UPON THE CHILD NONACCIDENTAL PHYSICAL INJURY OR THE CREATION OR ALLOWING TO BE CREATED A SUBSTANTIAL RISK THEREOF. THE ROLE OF THE DISTRICT ATTORNEY HAS BEEN ALTERED SO THAT HE OR SHE IS NOW A NECESSARY PARTY TO THE PROCEEDINGS RATHER THAN JUST A REPRESENTATIVE OF THE CHILD. PREVIOUSLY MENTAL EXAMINATION OF AN ACCUSED PARENT COULD BE ORDERED DIRECTLY BY THE COURT. UNDER THE REVISION, THE FAMILY COURT MAY NO LONGER ORDER SUCH EXAMINATION, BUT MAY TRANSFER THE CASE TO A CRIMINAL COURT WHICH MAY ORDER AN EXAMINATION. REVISIONS RELAX EVIDENTIARY PROVISIONS AND EXTEND THE SCOPE OF POSSIBLE INTERVENTION WHILE ELIMINATING CONSTITUTIONAL PROBLEMS RAISED BY PREVIOUS LEGISLATION. NOTES ARE INCLUDED. (JAP)