2nd honker
Oct. 23, 2017
News Picks from NYSDA Staff

News Picks
New Parenting Time (Visitation) Directive from OCFS. The NYS Office of Children and Family Services (OCFS) has issued a new Administrative Directive ( 17-OCFS-ADM-14 ) that advises local departments of social services and voluntary authorized agencies to develop a written policy for distribution to parents and other stakeholders that addresses parenting time (visitation) and other contact with family for children in foster care. The Directive recognizes the importance of immediate and ongoing contact between a child and her parents and also acknowledges the importance of sibling contact and visitation with other family members. "Regularly scheduled parent-child interaction when safe and appropriate, in as natural an environment as possible, can lessen the impact of the separation; help improve parenting skills; and maintain and strengthen the parent-child bond. Moreover, ongoing and increasingly frequent parent-child interaction is critical for the well-being of a child who is in foster care."
The Directive addresses the confusion of "biweekly visitation" that surrounds 18 NYCRR 430.12(d)(1) and asserts that biweekly is the minimum amount of parenting time that should be immediately afforded to parents. OCFS suggests visits commence within 2 or 3 days of removal. Also recommended is regular telephone calls or contact by other technology. Further, OCFS suggests as a default the least restrictive level of supervision in the most natural setting available and that if a conflict between a foster parent's schedule and a parent's schedule exists, it should be resolved in favor of the parent. The Directive contains excellent guidance for maximizing the frequency and quality of parenting time. Local agencies are to make available the written policy regarding parenting time within 90 days. The Directive took effect on Oct. 5, 2017. 

Parole Officials Liable for Abridging Plaintiffs' Fundamental Rights of Association with Family Members. A federal judge has held New York City parole officials liable in a § 1983 action for interfering with a parolee's right to reside and associate with his wife and infant son. Doe v Lima , 14 Civ. 2953, 2017 U.S. Dist LEXIS 140933, 2017 WL 3835959 (SDNY 8/31/2017). Judge Paul A. Engelmayer ruled parole officials violated the three family members' rights to procedural and substantive due process when they twice ordered a parolee, who had been convicted of a sex offense involving an adolescent girl, out of the family residence and into a homeless shelter for a total of thirteen months following the birth of his son. The move-out and no contact orders were based on a standard condition of parole barring certain offenders from having contact with minors without the written permission of a supervising parole officer.
The Department of Corrections and Community Supervision (DOCCS) was permitted to deprive the plaintiff of access to his son for "a reasonable period while they investigated whether any restriction on contact with [the son] was justified to advance the state's interest in protecting [the child]," Judge Engelmayer concluded. But here DOCCS failed to conduct any meaningful investigation following the first move-out order and failed to adhere to agency investigative protocols and lacked sufficient justification for the second move-out and no contact order. Judge Engelmayer wrote, "[P]arole conditions that bar a parent from all contact with a child or condition such contact on a parole officer's approval implicate a fundamental liberty interest in a familial relationship, are subject to strict scrutiny, require individualized justification based on the threat posed by the defendant to the child, and require that the releasee be given an opportunity to be heard before their imposition."
The plaintiff family members are represented by Lauren Stephens-Davidowitz of the Office of the Appellate Defender and Debevoise and Plimpton. The defendants have expressed an intention to appeal.

Pilot Centralized Off-Hours Arraignment Parts Announced. In an Oct. 2, 2017 press release , the Unified Court System reported that the Chief Administrative Judge has "announced that centralized arraignment parts (CAPs) for off-hours arraignments will begin operation this month in four upstate counties, part of a pilot program to facilitate the delivery of right-to-counsel services ...." The action is authorized by new legislation, Laws of 2016, Chapter 492 (S7209-A). It amended relevant laws, including the addition of a new paragraph (w) to Judiciary Law 212(1) authorizing establishment of "off-hours arraignment parts in select local criminal courts of a county to be held on a rotating basis" to "facilitate the availability of public defenders or assigned counsel for defendants in need of legal representation at such proceedings." As the New York Law Journal reported [subscription req.], the change stemmed from "recommendations of [the Chief Administrative Judge's] advisory committee on criminal law and procedure and was partly born out of New York's experience with the settlement in Hurrell-Harring v. State of New York ...."
The press release indicates that the new CAPs were created with "input from all the local stakeholders" and tailored to "local needs and resources." In coming months, additional CAPs are expected to open around the state. The Office of Indigent Legal Services (ILS) congratulated all those involved in the announced opening of the CAPs in Broome, Oneida, Onondaga, and Washington counties. ILS pledged to "continue to work with the counties, the providers, the stakeholders and the courts to ensure that the legal requirement that counsel be provided at every defendant's first court appearance is honored ...."
An Oct. 6, 2017 Binghamton Press and Sun Bulletin article reported on the beginning of the program in Broome County. A town judge quoted in the article stressed that the changes affect only arraignment, not subsequent proceedings, which would be held in "'whatever court it belongs in.'" The District Attorney advised that the new program "'increases public safety, protecting the rights of victims, by guaranteeing a judge being available to set bail or decide on order of protection issues' ...." As the announced pilot programs get underway and planning for others continues, NYSDA will assist public defense providers, county officials, and others requesting technical assistance regarding problems concerning CAPs and other efforts to ensure quality public defense representation of every eligible person at arraignments across the state. 

Assembly Hearing on Health Care in Jails and Prisons Oct. 30 in Albany. A joint hearing before the Assembly's Committees on Health and Correction is scheduled for Oct. 30, 2017 in Albany on "Healthcare in New York correctional facilities." The hearing will encompass both local jails and state prisons as lawmakers look at issues "including: adequacy of care, treatment of communicable diseases, women's healthcare, administering medication, and long-term care; use of for-profit health care contractors; health care facility placements for inmates leaving incarceration; and potential Medicaid coverage for incarcerated individuals." Oral testimony is by invitation only and is limited to 10 minutes; the Notice announcing the hearing also says: "All testimony will be under oath." 

Copyright © 2012-2017 New York State Defenders Association