Bill A3421-2013
Provides that applicant for a search warrant must disclose all prior denials of the same or similar application, as well as any prior failure to issue such a warrant by a different judge, if known to the applicant.
Of course, I wholeheartedly support such legislature as a criminal defense counsel. It is interesting, how bad is the problem that it finally caught legislative attention? Such information is usually not disclosed in discovery in criminal cases...
Friday, March 14, 2014
... is paved with good intentions
NY Bill A8505-2013
"Relates to assisting and protecting victims of domestic violence, child abuse and child neglect."
The bill laments that at this time, convictions for a violation, including for harassment, including for harassment in a domestic violence dispute, are sealed and cannot serve as evidence in child neglect proceedings or to sustain an indicated report of child maltreatment.
The bill pushes to allow such convictions to be subpoenaed and used by Social Services as evidence against the alleged abuser.
In my opinion, it is bad law because it will increase financial burden on the counties because the incentive to plead guilty in criminal court to 2nd degree harassment will, at least in large part, will disappear. With less pleas, there will be more trials, longer work by assigned defense counsel, larger loads on the prosecutors and local justice courts.
As a criminal defense attorney, I will be the first to advise my clients involved in a domestic violence dispute and a parallel child neglect proceedings to go through motions and a trial in the criminal court rather than consider pleading to "a simple violation". A conviction for a "simple violation" will have too many strings attached in the context of a child neglect proceeding if this bill is enacted:
(1) it may in the end result in removal of children from the family,
(2) it may result in years of supervision when my client would have to do anything and everything that Social Services require, including, but not limited to:
(a) involuntary mental health treatment, whether it is necessary or not,
(b) intrusive and humiliating spontaneous drug tests when a social worker shows up at your house at any time she wants and watches you pee in a cup,
(c ) warrantless searches of the house by Social Services and inability to work in certain occupations because of a finding of child neglect based on that conviction for "a simple violation";
(d) no privacy in medical treatment;
(e) interference into your medical treatment when Social Services can insist that your medical provider does not give you prescriptions of certain medicaionts (painkillers), even if you badly need them.
And all of that will start with a small change unsealing your "simple violation" conviction for 2nd degree harassment which district attorneys distribute like candy in order to clear their misdemeanor dockets. Not a good idea.
"Relates to assisting and protecting victims of domestic violence, child abuse and child neglect."
The bill laments that at this time, convictions for a violation, including for harassment, including for harassment in a domestic violence dispute, are sealed and cannot serve as evidence in child neglect proceedings or to sustain an indicated report of child maltreatment.
The bill pushes to allow such convictions to be subpoenaed and used by Social Services as evidence against the alleged abuser.
In my opinion, it is bad law because it will increase financial burden on the counties because the incentive to plead guilty in criminal court to 2nd degree harassment will, at least in large part, will disappear. With less pleas, there will be more trials, longer work by assigned defense counsel, larger loads on the prosecutors and local justice courts.
As a criminal defense attorney, I will be the first to advise my clients involved in a domestic violence dispute and a parallel child neglect proceedings to go through motions and a trial in the criminal court rather than consider pleading to "a simple violation". A conviction for a "simple violation" will have too many strings attached in the context of a child neglect proceeding if this bill is enacted:
(1) it may in the end result in removal of children from the family,
(2) it may result in years of supervision when my client would have to do anything and everything that Social Services require, including, but not limited to:
(a) involuntary mental health treatment, whether it is necessary or not,
(b) intrusive and humiliating spontaneous drug tests when a social worker shows up at your house at any time she wants and watches you pee in a cup,
(c ) warrantless searches of the house by Social Services and inability to work in certain occupations because of a finding of child neglect based on that conviction for "a simple violation";
(d) no privacy in medical treatment;
(e) interference into your medical treatment when Social Services can insist that your medical provider does not give you prescriptions of certain medicaionts (painkillers), even if you badly need them.
And all of that will start with a small change unsealing your "simple violation" conviction for 2nd degree harassment which district attorneys distribute like candy in order to clear their misdemeanor dockets. Not a good idea.
Finally and long overdue...
Bill S3140-2013
"Amends provisions of child protective proceedings to prevent the unnecessary removal of children from a custodial parent who is the victim of domestic violence.
SUMMARY OF SPECIFIC PROVISIONS:
Sections 1-3 amend the Family Court Act by adding an identical paragraph to section 1022, section 1024 and section 1028. The amendment establishes a rebuttable presumption that a parent or person legally responsible for a child is a fit parent or custodian able to safely raise his/her child. The amendment clarifies that an allegation made to the court, or a finding made by the court, that the child's custodial parent or the person legally responsible for the child is a victim of domestic violence shall be insufficient evidence for the court to determine that the child is at imminent risk of harm, and should therefore be removed from his or her battered parent or custodian.
Sections 4 and 5 amend section 371 of the social services law and section 1012 of the family court act respectively, The amendment expands the definition of a neglected child to exclude a child of a custodial parent or a person legally responsible for the child who is the victim of domestic violence unless it is established by the court that, among other things, the child both experienced and was harmed by the domestic violence.
JUSTIFICATION: To prevent further trauma to a child whose custodial parent is a victim of domestic violence, this bill establishes a presumption of fitness on the part of the battered custodial parent to prevent the unnecessary removal of the child from the battered parent," highlighting added.
==
So many women were held in child neglect, put under supervision, parted from their children because they were victims of domestic violence. New York State Court of Appeals and the 2nd Circuit ruled against finding against a parent/victim of domestic violence in child neglect proceedings, but I still had Family Court cases where such glaring unconstitutionality was disregarded and the mother was either adjudicated in neglect or settled for fear of losing at trial.
At this time, Social Services routinely charge mothers with child neglect simply because children were present at the time mothers were battered and saw the incident.
I support this legislation. It is long overdue. I also would add to it that it applies retroactively and to vacate all court decisions of child neglect that said otherwise. That will help a lot of parents to remove the stigma and, possibly, will reunite a lot of families.
"Amends provisions of child protective proceedings to prevent the unnecessary removal of children from a custodial parent who is the victim of domestic violence.
SUMMARY OF SPECIFIC PROVISIONS:
Sections 1-3 amend the Family Court Act by adding an identical paragraph to section 1022, section 1024 and section 1028. The amendment establishes a rebuttable presumption that a parent or person legally responsible for a child is a fit parent or custodian able to safely raise his/her child. The amendment clarifies that an allegation made to the court, or a finding made by the court, that the child's custodial parent or the person legally responsible for the child is a victim of domestic violence shall be insufficient evidence for the court to determine that the child is at imminent risk of harm, and should therefore be removed from his or her battered parent or custodian.
Sections 4 and 5 amend section 371 of the social services law and section 1012 of the family court act respectively, The amendment expands the definition of a neglected child to exclude a child of a custodial parent or a person legally responsible for the child who is the victim of domestic violence unless it is established by the court that, among other things, the child both experienced and was harmed by the domestic violence.
JUSTIFICATION: To prevent further trauma to a child whose custodial parent is a victim of domestic violence, this bill establishes a presumption of fitness on the part of the battered custodial parent to prevent the unnecessary removal of the child from the battered parent," highlighting added.
==
So many women were held in child neglect, put under supervision, parted from their children because they were victims of domestic violence. New York State Court of Appeals and the 2nd Circuit ruled against finding against a parent/victim of domestic violence in child neglect proceedings, but I still had Family Court cases where such glaring unconstitutionality was disregarded and the mother was either adjudicated in neglect or settled for fear of losing at trial.
At this time, Social Services routinely charge mothers with child neglect simply because children were present at the time mothers were battered and saw the incident.
I support this legislation. It is long overdue. I also would add to it that it applies retroactively and to vacate all court decisions of child neglect that said otherwise. That will help a lot of parents to remove the stigma and, possibly, will reunite a lot of families.
4th Amendment, anyone?
NY Bill A2356-2013 Enacts "Laura Cummings Law"; requires investigating officials of the department of social services or the office of children and family services to investigate the homes of adults about whom reports have been filed and requires such officials to apply for a court order allowing access to the home if two or more such reports have been filed regarding such adult and access thereto has been denied; makes failing to allow access to the subject of a report a misdemeanor; allows information sharing between protective services agencies.
Somebody anonymous with a grudge makes a report against you - and your 4th amendment rights flew out the door. You will have a criminal record if you will not open that door. Well, there is a comment on this one already if you follow the link. There is not much to add to it.
Support through CPS proceedings - how about equal procedure?
NY Bill A2956-2013 authorizes the court to make an order of support in assistance or as a condition of any other order made in a child protective proceeding directing that a person who is liable to pay support pursuant to the provisions of article four of the family court act and who is a party to the proceeding, contribute to the support of the child or the spouse without the need for further proceedings.
I wonder if the esteemed legislators are aware of the regular court procedure in child neglect proceedings (Article 10 of the Family Court Act) and in child and spousal support proceedings (Article 4 of the Family Court Act).
Article 10 child neglect Article 4 support
Who starts CPS Commissioner Whoever is owed child support -
parent or legal guardian
Spouse for spousal support
Who presides Elected Family Court Appointed support
Judge magistrate
Who reviews NYS Supreme Court 1) Elected Family Court Judge
appeals Appellate Division of that county - objections to finding
of support;
2) NYS Supreme Court Appellate
Division
How many 1 (one) 2 (two)
appellate
layers
between
finding of
support and
Appellate
Division
What follows from the above table is that, for the sake of convenience (expediency) of the court, a parent who has the misfortune of being brought into child abuse or neglect proceedings by the CPS, is somehow denied equal procedural protections that other parents have.
For a parent sued by CPS, Family Court judge who is normally an appellate judge in support proceedings, becomes a trial judge, and the parent loses a whole layer (step) of appellate review.
Moreover, in CPS proceedings, if CPS does not have custody of the subject child and the custodial parent is not brought in as a Respondent in the CPS proceedings, the court will find itself awarding child support to a non-party ("interested party")? That simply cannot happen in court proceedings.
I do not believe this one passes constitutional muster under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.
I wonder if the esteemed legislators are aware of the regular court procedure in child neglect proceedings (Article 10 of the Family Court Act) and in child and spousal support proceedings (Article 4 of the Family Court Act).
Article 10 child neglect Article 4 support
Who starts CPS Commissioner Whoever is owed child support -
parent or legal guardian
Spouse for spousal support
Who presides Elected Family Court Appointed support
Judge magistrate
Who reviews NYS Supreme Court 1) Elected Family Court Judge
appeals Appellate Division of that county - objections to finding
of support;
2) NYS Supreme Court Appellate
Division
How many 1 (one) 2 (two)
appellate
layers
between
finding of
support and
Appellate
Division
What follows from the above table is that, for the sake of convenience (expediency) of the court, a parent who has the misfortune of being brought into child abuse or neglect proceedings by the CPS, is somehow denied equal procedural protections that other parents have.
For a parent sued by CPS, Family Court judge who is normally an appellate judge in support proceedings, becomes a trial judge, and the parent loses a whole layer (step) of appellate review.
Moreover, in CPS proceedings, if CPS does not have custody of the subject child and the custodial parent is not brought in as a Respondent in the CPS proceedings, the court will find itself awarding child support to a non-party ("interested party")? That simply cannot happen in court proceedings.
I do not believe this one passes constitutional muster under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.
Release of child's medical records to CPS for the asking?
NY Bill S3228-2013 provides for the release of all medical records of the examination or treatment of any child reported as an abused or maltreated child upon the written request of the child protective service of a local department of social services certifying that such child has been reported as abused or maltreated; provides such records shall have the names of the alleged abusers deleted and provides such records shall be kept confidential.
I beg to differ. A child has parents. If child neglect proceedings already started, the child has an attorney assigned to the child. It is a matter for court's determination on a case by case basis, specifically because constitutional issues are involved.
If parents' fundamental constitutional rights to care and control their child mean anything at all, parents must not be required to surrender that control over the child's medical records simply because CPS asked for them in writing.
Child abuse and maltreatment reports are made by anonymous reporters. Parents may never get to know who reported them. Thus, the child's medical records are open to the state government on the basis of any anonymous call, even where such records are supposed to be protected by both state and federal privacy laws.
This bill opens the door to unlimited abuse of governmental power. Anybody who has a grudge against a parent can call in a child abuse and maltreatment report, remaining anonymous. Such a report is not enough to harass the parent or obtain the child's medical records.
Moreover, if the parent has a conflict of interest whether to release or not to release such medical records, the child certainly has a right to protect his or her privacy from intrusion of the government, and a lawyer must be appointed to the child to protect his or her interests before the issue of release of medical records to CPS can even be considered. And, once again, this is an issue for a court's review. Automatic release of medical records to CPS simply for the asking violates parents' and the child's right to privacy secured by the U.S. Constitution, as well as by the New York State Constitution.
I do not believe this bill passes constitutional muster.
What this blog is about
I will be covering in this blog, time and health permitting, pending New York State legislation.
Recently, when doing research for a case, I started looking through bills introduced in New York State senate and was stunned. I was stunned by how much of taxpayers' money is sometimes wasted on some bills which are glaringly unconstitutional.
Each bill has a public comment page on the Senate's website, but comments are moderated, and I do not really know how many comments are made, if at all, and how many are sieved out.
In this blog I hope for an open public debate on issues of public concern.
Recently, when doing research for a case, I started looking through bills introduced in New York State senate and was stunned. I was stunned by how much of taxpayers' money is sometimes wasted on some bills which are glaringly unconstitutional.
Each bill has a public comment page on the Senate's website, but comments are moderated, and I do not really know how many comments are made, if at all, and how many are sieved out.
In this blog I hope for an open public debate on issues of public concern.
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