S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5068

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             April 29, 2015
                               ___________

Introduced  by  Sen.  FELDER -- 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, in relation to the  out-of-home
  placement of certain children with disabilities or disorders

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 3 of section 358-a of the social  services  law
is amended by adding a new paragraph (g) to read as follows:
  (G)  THE  COURT  MAY  APPROVE A PETITION BY OR AGREEMENT WITH A SOCIAL
SERVICES OFFICIAL FOR THE TRANSFER  FOR  TEMPORARY  PLACEMENT  AND  CARE
BASED ON CHILD SERVICE NEEDS FOR THE PROVISION OF NECESSARY SERVICES FOR
THE CHILD'S EMOTIONAL, BEHAVIORAL OR MENTAL DISORDER, OR MENTAL OR PHYS-
ICAL  DISABILITY,  WITHOUT  THE TRANSFER OF CUSTODY, WHICH PROVIDES THAT
THE SOCIAL SERVICES  OFFICIAL  SHALL  MAINTAIN  RESPONSIBILITY  FOR  THE
TEMPORARY  PLACEMENT AND CARE OF THE CHILD. THE SOCIAL SERVICES DISTRICT
SHALL BE ASSIGNED OVERALL RESPONSIBILITY  FOR  TEMPORARY  PLACEMENT  AND
CARE  OF  THE CHILD, INCLUDING, BUT NOT LIMITED TO, EITHER THE ACTUAL OR
ACTIVE SUPERVISION OF THE DEVELOPMENT OF AN INDIVIDUAL CASE PLAN FOR THE
CHILD, PERIODIC REVIEW OF THE CASE PLAN AND REVIEW OF  THE  APPROPRIATE-
NESS AND SUITABILITY OF THE PLAN AND PLACEMENT, AND ENSURING THAT PROPER
CARE  AND SERVICES ARE PROVIDED TO FACILITATE RETURN TO THE CHILD'S HOME
OR OTHER ALTERNATIVE PERMANENT PLACEMENT, ALL IN  ADHERENCE  WITH  STATE
AND FEDERAL RULES, REGULATIONS AND POLICY INTERPRETATIONS.
  S  2.  Subdivision  2  of  section 384-a of the social services law is
amended by adding a new paragraph (i) to read as follows:
  (I) A SOCIAL SERVICES OFFICIAL MAY ACCEPT  A  TRANSFER  FOR  TEMPORARY
PLACEMENT  AND  CARE  OF A CHILD FOR THE PROVISION OF NECESSARY SERVICES
FOR THE CHILD'S EMOTIONAL, BEHAVIORAL OR MENTAL DISORDER, OR  MENTAL  OR
PHYSICAL  DISABILITY, WITHOUT THE TRANSFER OF CUSTODY, PROVIDED THAT THE
SOCIAL SERVICES OFFICIAL SHALL MAINTAIN RESPONSIBILITY FOR THE TEMPORARY
PLACEMENT AND CARE OF THE CHILD. THE SOCIAL SERVICES OFFICIAL  SHALL  BE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07722-02-5
              

S. 5068                             2

ASSIGNED  OVERALL RESPONSIBILITY FOR THE TEMPORARY PLACEMENT AND CARE OF
THE CHILD, INCLUDING BUT NOT LIMITED TO, EITHER ACTUAL OR ACTIVE  SUPER-
VISION  OF  THE  DEVELOPMENT  OF  AN INDIVIDUAL CASE PLAN FOR THE CHILD,
PERIODIC  REVIEW  OF THE CASE PLAN AND REVIEW OF THE APPROPRIATENESS AND
SUITABILITY OF THE PLAN AND PLACEMENT, AND ENSURING THAT PROPER CARE AND
SERVICES ARE PROVIDED TO FACILITATE RETURN TO THE CHILD'S HOME OR  OTHER
ALTERNATIVE PERMANENT PLACEMENT, ALL IN ADHERENCE WITH STATE AND FEDERAL
RULES, REGULATIONS AND POLICY INTERPRETATIONS.
  S  3.  Section 358-a of the social services law, as amended by chapter
78 of the laws of 1978, subdivision 1 and paragraph (e) of subdivision 3
as amended, and paragraphs (b), (c) and (d) of subdivision 3 as added by
chapter 7 of the laws of 1999, paragraph (b) of subdivision 1 as amended
by section 16 of part C of chapter 83 of the laws of 2002,  subdivisions
2  and 3 as amended by chapter 808 of the laws of 1985, paragraph (a) of
subdivision 2 as amended by chapter 671 of the laws of  2005,  paragraph
(b)  of  subdivision  2  as  amended  by chapter 87 of the laws of 1993,
subdivision 2-a as amended by section 35, paragraph (a) and the  closing
paragraph  of  paragraph  (b) of subdivision 3 as amended by section 36,
paragraph (f) of subdivision 3 as amended by section  37,  and  subdivi-
sions  7  and  8  as amended by section 39 of part A of chapter 3 of the
laws of 2005, paragraph (b) of subdivision 2-a  and  subdivision  12  as
amended  by chapter 437 of the laws of 2006, subdivision 4 as amended by
chapter 823 of the laws of 1987, subdivisions 5  and  9  as  amended  by
chapter  465  of  the laws of 1992, subdivision 6 and paragraphs (b) and
(c) of subdivision 10 as amended by chapter 41  of  the  laws  of  2010,
subdivision 10 as added by chapter 457 of the laws of 1988, and subdivi-
sion  11 as added by chapter 854 of the laws of 1990, is amended to read
as follows:
  S 358-a. Dependent children in foster care. (1) Initiation of judicial
proceeding. (a) A social services official who accepts  or  proposes  to
accept the custody and guardianship of a child by means of an instrument
executed pursuant to the provisions of section three hundred eighty-four
of  this  chapter,  or  the TRANSFER FOR TEMPORARY PLACEMENT AND CARE OR
care and custody of a child as a public charge by means of an instrument
executed pursuant to the provisions of  section  three  hundred  eighty-
four-a  of this chapter, shall determine whether such child is likely to
remain in the care of such official for a period  in  excess  of  thirty
consecutive  days.  If such official determines that the child is likely
to remain in care for a period in excess  of  thirty  consecutive  days,
such  official  shall  petition  the family court judge of the county or
city in which the social services official has his  or  her  office,  to
approve  such  instrument upon a determination that the placement of the
child is in the best interest of the child, that it would be contrary to
the welfare of the child to continue in his or her own  home  and,  that
where  appropriate,  reasonable efforts were made prior to the placement
of the child into foster care to  prevent  or  eliminate  the  need  for
removal  of  the child from his or her home and that prior to the initi-
ation of the court proceeding required to be held by  this  subdivision,
reasonable efforts were made to make it possible for the child to return
safely  home.  In the case of a child [whose] WHO HAS EITHER BEEN TRANS-
FERRED FOR TEMPORARY PLACEMENT AND CARE OR FOR care and  custody  [have]
AND  HAS  been  transferred to a social services official by means of an
instrument executed pursuant to the provisions of section three  hundred
eighty-four-a  of this chapter, approval of the instrument shall only be
made upon an additional determination that all of  the  requirements  of
such section have been satisfied.

S. 5068                             3

  (b)  The  social  services  official  shall initiate the proceeding by
filing the petition as soon as practicable, but in no event  later  than
thirty  days  following  removal  of  the  child from the home provided,
however, that the court shall  receive,  hear  and  determine  petitions
filed  later than thirty days following removal of the child from his or
her home, but state reimbursement shall not be available to  the  social
services  district  for care and maintenance provided to such child. The
social services official shall diligently pursue such proceeding.  Where
the  care  and  custody  OR TEMPORARY PLACEMENT AND CARE of a child as a
public charge has been transferred to  a  social  services  official  by
means  of  an  instrument executed pursuant to the provisions of section
three hundred eighty-four-a of this chapter for a period of thirty  days
or  less  for an indeterminate period which such official deems unlikely
to exceed thirty days, and thereafter such official determines that such
child will remain in his or her care and custody for a period in  excess
of  thirty  days,  such official shall, as soon as practicable but in no
event later than thirty days following such determination, execute  with
the child's parent, parents or guardian a new instrument pursuant to the
provision  of section three hundred eighty-four or three hundred eighty-
four-a of this chapter and shall file a petition in family court, pursu-
ant to this section, for approval of  such  instrument.  In  such  cases
involving  a  social  services  official,  expenditures for the care and
maintenance of such child from the date of the initial transfer [of his]
FOR EITHER TEMPORARY PLACEMENT AND CARE  OR  care  and  custody  to  the
social services official shall be subject to state reimbursement.
  (2)  Contents  of  petition.  (a)  Any petition required or authorized
pursuant to subdivision one of this section  shall  allege  whether  the
parent,  parents or guardian executed the instrument because the parent,
parents or guardian would be unable to make adequate provision  for  the
care,  maintenance  and  supervision  of  such child in his or their own
home, and shall include facts supporting the petition.    [The]  IF  THE
CARE  AND  CUSTODY  OF THE CHILD HAS BEEN TRANSFERRED THE petition shall
contain a notice in  conspicuous  print  providing  that  if  the  child
remains in foster care for fifteen of the most recent twenty-two months,
the  agency  may  be  required  by  law  to file a petition to terminate
parental rights. IF THE TEMPORARY PLACEMENT AND CARE OF  THE  CHILD  HAS
BEEN  TRANSFERRED,  THE  PETITION  SHALL CONTAIN A NOTICE IN CONSPICUOUS
PRINT PROVIDING THAT IF THE PARENT FAILS TO COMPLY WITH THE REQUIREMENTS
SET FORTH IN SUBPARAGRAPH (V) OF PARAGRAPH (C)  OF  SUBDIVISION  TWO  OF
SECTION THREE HUNDRED EIGHTY-FOUR-A OF THIS ARTICLE, THE AGENCY SHALL BE
REQUIRED  TO FILE A PETITION FOR THE TRANSFER OF CARE AND CUSTODY OF THE
CHILD TO AN AUTHORIZED AGENCY. The petition shall  also  set  forth  the
names  and  last  known  addresses  of  all persons required to be given
notice of the proceeding, pursuant to this  section  and  section  three
hundred  eighty-four-c  of this chapter, and there shall be shown by the
petition or by affidavit or other proof satisfactory to the  court  that
there  are no persons other than those set forth in the petition who are
entitled to notice pursuant to the provisions  of  this  section  or  of
section  three hundred eighty-four-c of this chapter. The petition shall
also set forth the efforts which were made, prior to  the  placement  of
the child into foster care, to prevent or eliminate the need for removal
of  the child from his or her home and the efforts which were made prior
to the filing of the petition to make  it  possible  for  the  child  to
return  safely home.   If such efforts were not made, the petition shall
set forth the reasons why these efforts  were  not  made.  The  petition
shall  request  that,  pending  any hearing which may be required by the

S. 5068                             4

family court judge, a temporary order be made transferring THE TEMPORARY
PLACEMENT AND CARE OR the care and custody of the child  to  the  social
services official in accordance with the provisions of subdivision three
of  this  section.  In  the  case of a child [whose] WHO HAS EITHER BEEN
TRANSFERRED FOR TEMPORARY PLACEMENT AND CARE OR  FOR  care  and  custody
[have  been  transferred]  to  a social services official by means of an
instrument executed pursuant to section three hundred  eighty-four-a  of
this chapter, the petition shall also allege and there shall be shown by
affidavit or other proof satisfactory to the court that all the require-
ments  of such section have been satisfied[, including]. IF THE CARE AND
CUSTODY OF THE  CHILD  HAS  BEEN  TRANSFERRED  SUCH  REQUIREMENTS  SHALL
INCLUDE  the  results  of  the  investigation to locate relatives of the
child, including any non-respondent parent and all of the child's grand-
parents. Such results shall include whether any relative  who  has  been
located  expressed an interest in becoming a foster parent for the child
or in seeking custody or care of the child.
  (b) The social services official who initiated  the  proceeding  shall
file supplemental information with the clerk of the court not later than
ten days prior to the date on which the proceeding is first heard by the
court.  Such  information shall include relevant portions, as determined
by the department, of the assessment of the child and his family circum-
stances performed and maintained,  and  the  family's  service  plan  if
available,  pursuant  to  sections  four hundred nine-e and four hundred
nine-f of this chapter. Copies of such supplemental information need not
be served upon those persons entitled to notice of the proceeding and  a
copy of the petition pursuant to subdivision four of this section.
  (2-a)  Continuing jurisdiction. (a) The court shall possess continuing
jurisdiction over the parties until the child is discharged from  place-
ment  and  all orders regarding supervision, protection or services have
expired.
  (b) The court, upon approving an instrument under this section,  shall
schedule  a  permanency  hearing pursuant to article ten-A of the family
court act for a date certain not more than eight months after the place-
ment of the child into foster care. Such date certain shall be  included
in the order approving the instrument.
  (3)  Disposition  of  petition. (a) If the court is satisfied that the
parent, parents or  guardian  executed  such  instrument  knowingly  and
voluntarily  and  because  he  or  she  would be unable to make adequate
provision for the care, maintenance and supervision of such child in his
or her home, and that the requirements of section three hundred  eighty-
four-a  of  this  chapter,  if  applicable, have been satisfied and that
where appropriate, reasonable efforts were made prior to  the  placement
of  the  child  into  foster  care  to prevent or eliminate the need for
removal of the child from his or her home and that prior to  the  initi-
ation  of the court proceeding required to be held by subdivision one of
this section, reasonable efforts were made to make it possible  for  the
child to return safely to his or her home, the court may find and deter-
mine  that the best interests and welfare of the child would be promoted
by removal of the child from such home, and that it would be contrary to
the welfare of such child for the child to continue in  such  home,  and
the court shall thereupon grant the petition and approve such instrument
and  the  transfer  of  the custody and guardianship or THE TRANSFER FOR
TEMPORARY PLACEMENT AND CARE OR care and custody of such child  to  such
social  services  official  in accordance therewith. If the court deter-
mines that, where appropriate, reasonable efforts were made prior to the
placement of the child into foster care to prevent or eliminate the need

S. 5068                             5

for removal of the child from his or her home, that prior to the  initi-
ation  of  the  court proceeding reasonable efforts were made to make it
possible for the child to return safely to his or her home, or  that  it
would  be contrary to the best interests of the child to continue in the
home, or that reasonable efforts to prevent or eliminate  the  need  for
removal  of  the  child from the home were not made but that the lack of
such efforts was appropriate under the circumstances,  the  court  order
shall  include such findings.  Approval of such instrument in a proceed-
ing pursuant to this section shall not constitute a remand or commitment
pursuant to this chapter and shall not preclude challenge in  any  other
proceeding to the validity of the instrument. If the permanency plan for
the  child is adoption, guardianship, permanent placement with a fit and
willing relative or another planned permanent living  arrangement  other
than  reunification  with  the parent or parents of the child, the court
must consider and determine in its order whether reasonable efforts  are
being made to make and finalize such alternate permanent placement.
  (b)  For the purpose of this section, reasonable efforts to prevent or
eliminate the need for removing the child from the home of the child  or
to  make  it  possible for the child to return safely to the home of the
child shall not be required where the court determines that:
  (1) the parent of such child has subjected  the  child  to  aggravated
circumstances, as defined in subdivision twelve of this section;
  (2)  the  parent of such child has been convicted of (i) murder in the
first degree as defined in section 125.27 or murder in the second degree
as defined in section 125.25 of the penal law and the victim was another
child of the parent; or (ii) manslaughter in the first degree as defined
in section 125.20 or manslaughter in the second  degree  as  defined  in
section  125.15 of the penal law and the victim was another child of the
parent, provided, however, that the parent must have  acted  voluntarily
in committing such crime;
  (3)  the  parent  of  such  child  has been convicted of an attempt to
commit any of the foregoing crimes, and the victim  or  intended  victim
was  the  child or another child of the parent; or has been convicted of
criminal solicitation as defined in article one hundred,  conspiracy  as
defined  in article one hundred five or criminal facilitation as defined
in article one hundred fifteen of the penal law for conspiring, solicit-
ing or facilitating any of the  foregoing  crimes,  and  the  victim  or
intended victim was the child or another child of the parent;
  (4)  the  parent  of  such  child has been convicted of assault in the
second degree as defined in section 120.05, assault in the first  degree
as  defined  in  section 120.10 or aggravated assault upon a person less
than eleven years old as defined in section 120.12 of the penal law, and
the commission of one of the foregoing crimes resulted in serious  phys-
ical injury to the child or another child of the parent;
  (5) the parent of such child has been convicted in any other jurisdic-
tion  of  an offense which includes all of the essential elements of any
crime specified in subparagraph two, three or four  of  this  paragraph,
and  the  victim  of  such offense was the child or another child of the
parent; or
  (6) the parental rights of the parent to a sibling of such child  have
been involuntarily terminated;
unless  the  court determines that providing reasonable efforts would be
in the best interests of the child, not contrary to the health and safe-
ty of the child, and would likely result in  the  reunification  of  the
parent  and  the  child in the foreseeable future. The court shall state
such findings in its order.

S. 5068                             6

  If the court determines  that  reasonable  efforts  are  not  required
because  of  one  of  the  grounds set forth above, a permanency hearing
shall be held within thirty days of the finding of the court  that  such
efforts  are  not  required. Such hearing shall be conducted pursuant to
section  one  thousand  eighty-nine  of  the family court act. The local
social services official shall thereafter  make  reasonable  efforts  to
place  the  child  in a timely manner and to complete whatever steps are
necessary to finalize the permanent placement of the child as set  forth
in  the permanency plan approved by the court. If reasonable efforts are
determined by the court not to be required because of one of the grounds
set forth in this paragraph, AND THE LOCAL SOCIAL SERVICES OFFICIAL  HAS
ACCEPTED  AN  INSTRUMENT  FOR  THE  TRANSFER  OF CARE AND CUSTODY OF THE
CHILD, the local social services official may file a petition for termi-
nation of parental rights of the parent in accordance with section three
hundred eighty-four-b of this chapter.  IF  THE  LOCAL  SOCIAL  SERVICES
OFFICIAL  HAS  ACCEPTED  AN  INSTRUMENT  FOR  THE TRANSFER FOR TEMPORARY
PLACEMENT AND CARE OF A CHILD, THE LOCAL SOCIAL SERVICES OFFICIAL  SHALL
FILE  A PETITION FOR THE TRANSFER OF CARE AND CUSTODY OF THE CHILD TO AN
AUTHORIZED AGENCY.
  (c) For the purpose of this section, in determining reasonable efforts
to be made with respect to  a  child,  and  in  making  such  reasonable
efforts, the child's health and safety shall be the paramount concern.
  (d)  For  the purpose of this section, a sibling shall include a half-
sibling.
  (e) The order granting the petition of a social services official  and
approving  an  instrument  executed  pursuant  to  section three hundred
eighty-four-a of this chapter may include conditions, where  appropriate
and  specified  by the judge, requiring the implementation of a specific
plan of action by the social  services  official  to  exercise  diligent
efforts  toward  the discharge of the child from care, either to his own
family or to an adoptive home; provided, however, that such  plan  shall
not  include the provision of any service or assistance to the child and
his or her family which is not authorized or required to be made  avail-
able  pursuant to the comprehensive annual services program plan then in
effect. An order of placement shall include, at the least:
  (i) a description of the visitation plan;
  (ii) a direction that the respondent or respondents shall be  notified
of  the planning conference or conferences to be held pursuant to subdi-
vision three of section four hundred nine-e of this  chapter,  of  their
right  to  attend  the conference, and of their right to have counsel or
other representative or companion with them;
  A copy of the court's order and the service plan shall be given to the
respondent. [The] IF THE CARE AND CUSTODY OF THE CHILD HAS  BEEN  TRANS-
FERRED  THE  order shall also contain a notice that if the child remains
in foster care for more than  fifteen  of  the  most  recent  twenty-two
months,  the  agency may be required by law to file a petition to termi-
nate parental rights. IF THE TEMPORARY PLACEMENT AND CARE OF  THE  CHILD
HAS  BEEN  TRANSFERRED THE ORDER SHALL ALSO CONTAIN A NOTICE THAT IF THE
RESPONDENT FAILS TO COMPLY WITH THE REQUIREMENTS SET FORTH  IN  SUBPARA-
GRAPH  (V)  OF PARAGRAPH (C) OF SUBDIVISION TWO OF SECTION THREE HUNDRED
EIGHTY-FOUR-A OF THIS ARTICLE, THE AGENCY SHALL BE REQUIRED  TO  FILE  A
PETITION FOR THE TRANSFER OF CARE AND CUSTODY OF THE CHILD TO AN AUTHOR-
IZED AGENCY.
  Nothing  in  such  order shall preclude either party to the instrument
from exercising its  rights  under  this  section  or  under  any  other
provision  of law relating to the return of the care OR CARE and custody

S. 5068                             7

of the child by the social services official to the parent,  parents  or
guardian. Violation of such [on] AN order shall be subject to punishment
pursuant to section seven hundred fifty-three of the judiciary law.
  (f)  For  a  child  who has attained the age of fourteen, if the court
grants the petition and approves  an  instrument  executed  pursuant  to
section three hundred eighty-four or three hundred eighty-four-a of this
chapter  and  the  transfer  of custody and guardianship or TRANSFER FOR
TEMPORARY PLACEMENT AND CARE OR care and custody of the child to a local
social services official the court shall  determine  in  its  order  the
services and assistance needed to assist the child in learning independ-
ent living skills.
  (4)  Notice.  (a)  Upon  the  filing  of  a  petition pursuant to this
section, the family court judge shall direct that service of a notice of
the proceeding and a copy of  the  petition  shall  be  made  upon  such
persons  and  in  such manner as the judge may direct. If the instrument
executed by the parent, parents or guardian of a child consents  to  the
jurisdiction  of  the  family  court  over  such  proceeding, and waives
service of the petition and notice of proceeding, then the family  court
judge  may, in his discretion, dispense with service upon the consenting
parent, parents or guardian, provided, however, that a waiver of service
of process and notice of the proceeding by a parent or guardian who  has
transferred  EITHER TEMPORARY PLACEMENT AND CARE OR the care and custody
of a child to an authorized agency, pursuant to  section  three  hundred
eighty-four-a  of  this chapter, shall be null and void and shall not be
given effect by the court. Notice to any parent, parents or guardian who
has not executed the instrument shall be required.
  (b) In the event the family court judge  determines  that  service  by
publication  is  necessary  and  orders  service by publication, service
shall be made in accordance with the provisions of  rule  three  hundred
sixteen  of  the civil practice law and rules, provided, however, that a
single publication of the summons or other  process  with  a  notice  as
specified  herein in only one newspaper designated in the order shall be
sufficient. In no event shall the whole petition be published. The peti-
tion shall be delivered to  the  person  summoned  at  the  first  court
appearance  pursuant  to  section one hundred fifty-four-a of the family
court act. The notice to be published with the summons or other  process
shall state the date, time, place and purpose of the proceeding.
  (i)  If the petition is initiated to transfer custody and guardianship
of a child by an instrument  executed  pursuant  to  the  provisions  of
section  three  hundred  eighty-four  of  this chapter, the notice to be
published shall also state that failure to appear  may  result,  without
further notice, in the transfer of custody and guardianship of the child
to a social services official in this proceeding.
  (ii)  If  the  petition is initiated to transfer care and custody of a
child by an instrument executed pursuant to the  provisions  of  section
three  hundred eighty-four-a of this chapter, the notice to be published
shall also state that failure to  appear  may  result,  without  further
notice,  in  the  transfer  of care and custody of the child to a social
services official in this proceeding.
  (5) Hearing and waiver. The instrument may include a  consent  by  the
parent, parents or guardian to waiver of any hearing and that a determi-
nation may be made by the family court judge based solely upon the peti-
tion,  and  other papers and affidavits, if any, submitted to the family
court judge, provided, however, that a waiver of hearing by a parent  or
guardian  who has EITHER transferred TEMPORARY PLACEMENT AND CARE OR the
care and custody of a child to an authorized agency, pursuant to section

S. 5068                             8

three hundred eighty-four-a of this chapter, shall be effective only  if
such  waiver  was  executed  in  an instrument separate from that trans-
ferring EITHER TEMPORARY PLACEMENT AND CARE OR the  [child's]  care  and
custody  OF  THE CHILD.   In any case where an effective waiver has been
executed, the family court judge may dispense with  a  hearing,  approve
the instrument and EITHER the transfer of [the] custody and guardianship
or THE TRANSFER FOR TEMPORARY PLACEMENT AND CARE OR THE care and custody
of  the  child  to  the  social services official and make the requisite
findings and determinations provided for in subdivision  three  of  this
section,  if  it  appears  to the satisfaction of the family court judge
that the allegations in the petition  are  established  sufficiently  to
warrant  the  family  court  judge  to grant such petition, to make such
findings and determination, and to issue such order.
  In any case where a hearing is required, the family  court  judge,  if
the holding of an immediate hearing on notice is impractical, may forth-
with,  upon the basis of the instrument and the allegations of the peti-
tion, make a temporary finding that the parent, parents, or guardian  of
the  child  are  unable to make adequate provision for the care, mainte-
nance and supervision of such child in the child's own home and that the
best interest and welfare of the child will be promoted by  the  removal
of such child from such home and thereupon, the family court judge shall
make  a  temporary order transferring EITHER THE TEMPORARY PLACEMENT AND
CARE OR the care and custody of such child to the social services  offi-
cial,  and  shall  set the matter down for hearing on the first feasible
date.
  (6) Representation. In any case where a hearing  is  directed  by  the
family  court  judge,  he  or she shall, pursuant to section two hundred
forty-nine of the family court act, appoint an attorney to represent the
child, who shall be admitted to practice law in the state of New York.
  (7) Return of child. If an instrument provides for the return  of  the
care  OR  CARE and custody of a child by the local social services offi-
cial to the parent, parents or guardian upon any terms and conditions or
at any time, the local social services official shall comply  with  such
terms  of  such  instrument  without  further  court  order. Every order
approving an instrument providing for the transfer of the care  OR  CARE
and  custody  of  a  child  to a local social services official shall be
served upon the parent, parents or guardian who executed such instrument
in such manner as the family court judge  may  provide  in  such  order,
together  with a notice of the terms and conditions under which the care
OR CARE and custody of such child may be returned to the parent, parents
or guardian. If an instrument provides for the return  of  the  care  OR
CARE and custody of a child by the local social services official to the
parent,  parents  or  guardian  without  fixing a definite date for such
return, or if the local social services official shall fail to return  a
child  to the care OR CARE and custody of the child's parent, parents or
guardian in accordance with the terms of  the  instrument,  the  parent,
parents or guardian may seek such care OR CARE and custody by motion for
return  of  such  child and order to show cause in such proceeding or by
writ of habeas corpus in the supreme court.  Nothing in this subdivision
shall limit the requirement for a permanency hearing pursuant to article
ten-A of the family court act.
  (8) Appealable orders. Any order of a family court denying  any  peti-
tion of a local social services official filed pursuant to this section,
or any order of a family court granting or denying any motion filed by a
parent,  parents  or  guardian  for  return  of a child pursuant to this

S. 5068                             9

section, shall be deemed an order of disposition appealable pursuant  to
article eleven of the family court act.
  (9) Duty of social services official. In the event that a family court
judge denies a petition of a social services official for approval of an
instrument,  upon  a  finding that the welfare of the child would not be
promoted by foster care, such social services official shall not  accept
or retain the care OR CARE and custody as a public charge or custody and
guardianship  of  such  child,  provided,  however, that the denial by a
family court judge of a petition of a  social  services  official  filed
pursuant  to  this  section  shall  not limit or affect the duty of such
social services official  to  take  such  other  action  or  offer  such
services as are authorized by law to promote the welfare and best inter-
ests of the child.
  (10)  Visitation  rights;  non-custodial parents and grandparents. (a)
Where a social services official incorporates in an  instrument  visita-
tion rights set forth in an order, judgment or agreement as described in
paragraph  (d) of subdivision two of section three hundred eighty-four-a
of this chapter, such official shall make inquiry of the  state  central
register of child abuse and maltreatment to determine whether or not the
person  having  such  visitation  rights  is a subject or another person
named in an indicated report of child abuse  or  maltreatment,  as  such
terms  are  defined  in section four hundred twelve of this chapter, and
shall further ascertain, to the extent practicable, whether or not  such
person  is  a respondent in a proceeding under article ten of the family
court act whereby the respondent has been alleged or adjudicated to have
abused or neglected such child.
  (b) Where a social services official or the  attorney  for  the  child
opposes  incorporation  of  an  order,  judgment or agreement conferring
visitation rights as provided for in paragraph (e) of subdivision two of
section three hundred eighty-four-a of this chapter, the social services
official or attorney for the child shall apply for an order  determining
that  the  provisions of such order, judgment or agreement should not be
incorporated into the instrument executed pursuant to such section. Such
order shall be granted upon a finding, based on competent, relevant  and
material  evidence,  that the child's life or health would be endangered
by incorporation and enforcement of visitation rights  as  described  in
such  order, judgment or agreement. Otherwise, the court shall deny such
application.
  (c) Where visitation rights pursuant to an order, judgment  or  agree-
ment  are  incorporated  in  an  instrument, the parties may agree to an
alternative schedule of visitation equivalent to and consistent with the
original or modified visitation order, judgment, or agreement where such
alternative schedule reflects changed circumstances of the  parties  and
is  consistent  with  the best interests of the child. In the absence of
such an agreement between the parties, the court may, in its discretion,
upon application of any party or the child's attorney, order an alterna-
tive schedule of visitation, as described herein,  where  it  determines
that  such schedule is necessary to facilitate visitation and to protect
the best interests of the child.
  (d) The order providing an alternative schedule  of  visitation  shall
remain  in  effect  for  the  length  of  the  placement of the child as
provided for in such instrument unless such order is subsequently  modi-
fied  by  the  court  for  good cause shown. Whenever the court makes an
order denying or modifying visitation rights pursuant to  this  subdivi-
sion, the instrument described in section three hundred eighty-four-a of
this chapter shall be deemed amended accordingly.

S. 5068                            10

  (11) Siblings, placement and visitation. (a) In reviewing any petition
brought  under  this  section,  the  court  shall  inquire if the social
services official has arranged for the placement of the child who is the
subject of the petition with any minor siblings or half-siblings who are
placed  in  care  or,  if  such  children have not been placed together,
whether such official has arranged  for  regular  visitation  and  other
forms of regular communication between such child and such siblings.
  (b) If the court determines that the subject child has not been placed
with his or her minor siblings or half-siblings who are in care, or that
regular  visitation and other forms of regular communication between the
subject child and his or her minor siblings  or  half-siblings  has  not
been  provided  or  arranged  for, the court may direct such official to
provide or arrange for such placement or regular visitation and communi-
cation where the court finds  that  such  placement  or  visitation  and
communication  is  in  the  child's best interests. Placement or regular
visitation and communication with siblings  or  half-siblings  shall  be
presumptively  in  the  child's  best interests unless such placement or
visitation and communication would be contrary to  the  child's  health,
safety  or  welfare,  or  the  lack of geographic proximity precludes or
prevents visitation.
  (12) For the purposes of this section, aggravated circumstances  means
where  a child has been either severely or repeatedly abused, as defined
in subdivision eight of section  three  hundred  eighty-four-b  of  this
chapter;  or  where  a child has subsequently been found to be an abused
child, as defined in paragraph  (i)  or  (iii)  of  subdivision  (e)  of
section  one  thousand twelve of the family court act, within five years
after return home following placement in foster  care  as  a  result  of
being  found  to  be a neglected child, as defined in subdivision (f) of
section one thousand twelve of the family court act, provided  that  the
respondent  or  respondents in each of the foregoing proceedings was the
same; or where the court finds by clear and convincing evidence that the
parent of a child in foster care has refused and has failed  completely,
over a period of at least six months from the date of removal, to engage
in  services  necessary  to  eliminate  the  risk of abuse or neglect if
returned to the parent, and has failed to secure services on his or  her
own or otherwise adequately prepare for the return home and, after being
informed  by  the  court  that  such  an  admission  could eliminate the
requirement  that  the  local  department  of  social  services  provide
reunification  services  to  the  parent, the parent has stated in court
under oath that he or she intends to continue to refuse  such  necessary
services  and  is  unwilling  to  secure  such services independently or
otherwise prepare for the child's return home; provided,  however,  that
if the court finds that adequate justification exists for the failure to
engage  in  or secure such services, including but not limited to a lack
of child care, a lack of transportation,  and  an  inability  to  attend
services  that  conflict  with  the parent's work schedule, such failure
shall not constitute an aggravated circumstance; or where  a  court  has
determined  a  child  five days old or younger was abandoned by a parent
with an intent to wholly abandon such child and with the intent that the
child be safe from physical injury  and  cared  for  in  an  appropriate
manner.
  S  4.  Paragraph  (b)  of subdivision 1 of section 358-a of the social
services law, as amended by chapter 7 of the laws of 1999, is amended to
read as follows:
  (b) The social services official  shall  initiate  the  proceeding  by
filing  the  petition as soon as practicable, but in no event later than

S. 5068                            11

thirty days following removal of  the  child  from  the  home  provided,
however,  that  the  court  shall  receive, hear and determine petitions
filed later than thirty days following removal of the child from his  or
her  home,  but  state reimbursement to the social services district for
care and maintenance provided to such child shall be denied [pursuant to
section one hundred fifty-three-d of this chapter]. The social  services
official  shall  diligently  pursue  such proceeding. Where the care and
custody OR TEMPORARY PLACEMENT AND CARE of a child as  a  public  charge
has  been  transferred  to  a  social  services  official by means of an
instrument executed pursuant to the provisions of section three  hundred
eighty-four-a of this chapter for a period of thirty days or less for an
indeterminate period which such official deems unlikely to exceed thirty
days,  and  thereafter  such  official  determines  that such child will
remain in his or her care and custody for a period in excess  of  thirty
days,  such official shall, as soon as practicable but in no event later
than thirty days following such determination, execute with the  child's
parent,  parents  or guardian a new instrument pursuant to the provision
of section three hundred eighty-four or three hundred  eighty-four-a  of
this chapter and shall file a petition in family court, pursuant to this
section,  for  approval  of  such  instrument. In such cases involving a
social services official, expenditures for the care and  maintenance  of
such  child  from  the  date of the initial transfer [of his] FOR EITHER
TEMPORARY PLACEMENT AND CARE OR care and custody to the social  services
official  shall  be subject to state reimbursement[, notwithstanding the
provisions of section one hundred fifty-three-d of this chapter].
  S 5. Section 384-a of the social services law, as amended  by  chapter
669  of the laws of 1976, subdivision 1 as amended by section 52, subdi-
vision 1-b as added by section 53 and  paragraph  (a)  and  subparagraph
(iii) of paragraph (h) of subdivision 2 as amended by section 54 of part
A  of chapter 3 of the laws of 2005, subdivision 1-a as amended by chap-
ter 671 of the laws of 2005, subdivision  2  as  separately  amended  by
chapter  666  of  the  laws  of  1976, paragraph (c) of subdivision 2 as
amended by chapter 256 of the laws of 1990, subparagraph  (i)  of  para-
graph (c) of subdivision 2 as amended by chapter 69 of the laws of 1991,
subparagraph  (ix) of paragraph (c) of subdivision 2 as added by chapter
7 of the laws of 1999, paragraphs (d) and (e) as added and paragraph (g)
of subdivision 2 as relettered and subdivision 3 as amended  by  chapter
457  of  the  laws of 1988, paragraph (f) of subdivision 2 as amended by
chapter 41 of the laws of 2010, paragraph (g) of subdivision 2 as  added
by  chapter  947 of the laws of 1981, and paragraph (h) of subdivision 2
as added by chapter 477 of the laws of  2000,  is  amended  to  read  as
follows:
  S  384-a.  Transfer  of  [care  and custody of] children FOR TEMPORARY
PLACEMENT AND CARE OR CARE AND CUSTODY.  1. Method. [The care and custo-
dy of a child may be transferred by a parent or guardian, and  the  care
of  a  child  may  be  transferred  by  any  person to whom a parent has
entrusted the care of the child, to an authorized agency  by  a  written
instrument  in accordance with the provisions of this section.] A PARENT
OR GUARDIAN MAY EITHER:
  (A) TRANSFER RESPONSIBILITY FOR TEMPORARY  PLACEMENT  AND  CARE  OF  A
CHILD  SO  THEY  MAY RECEIVE NECESSARY SERVICES FOR AN EMOTIONAL, BEHAV-
IORAL OR MENTAL DISORDER, OR MENTAL OR PHYSICAL DISABILITY TO AN AUTHOR-
IZED AGENCY BY A WRITTEN INSTRUMENT IN ACCORDANCE WITH THE PROVISIONS OF
THIS SECTION; OR

S. 5068                            12

  (B) TRANSFER THE CARE AND CUSTODY OF A CHILD TO AN  AUTHORIZED  AGENCY
BY  A  WRITTEN  INSTRUMENT  IN  ACCORDANCE  WITH  THE PROVISIONS OF THIS
SECTION.
  1-A.  THE  CARE  OF  A  CHILD MAY ALSO BE TRANSFERRED TO AN AUTHORIZED
AGENCY BY ANY PERSON TO WHOM A PARENT HAS  ENTRUSTED  THE  CARE  OF  THE
CHILD. Such transfer by a person who is not the child's parent or guard-
ian shall not affect the rights or obligations of the parents or guardi-
an, and such transfer shall be deemed a transfer of the care and custody
of  the child for the purposes of section three hundred fifty-eight-a of
this chapter.
  [1-a.] 1-B. Prior to accepting a transfer of care and custody, a local
social services official shall commence a search to locate any  non-res-
pondent parent of the child and shall conduct an immediate investigation
to  (a)  locate  relatives  of  the  child, including all of the child's
grandparents, all suitable relatives identified by either and any  rela-
tive  identified by a child over the age of five as a relative who plays
or has played a significant positive role in his or  her  life,  and  to
inform  them of the opportunity for becoming foster parents or for seek-
ing custody or care of the child, and that the child may be  adopted  by
foster  parents  if  attempts at reunification with the birth parent are
not required or are unsuccessful; and to determine whether the child may
appropriately be placed with a suitable person related to the child  and
whether such relative seeks approval as a foster parent pursuant to this
chapter  for the purposes of providing care for such child, or wishes to
provide care and custody for the child until the parent or other  person
responsible for the care of the child is able to resume custody; and (b)
identify  minor  siblings or half-siblings of the child and to determine
whether such siblings or half-siblings have been  or  are  being  trans-
ferred  FOR  TEMPORARY  PLACEMENT AND CARE OR to the care and custody of
such official. Such official shall provide or arrange for the  provision
of care so as to permit the child and his or her minor siblings or half-
siblings to be placed together unless, in the judgment of such official,
such  placement would be contrary to the best interests of the children;
whereupon, such official shall provide or arrange for regular visitation
and other forms of regular communication between such  children  unless,
in  the  judgment  of  such  official, such visitation and communication
would be contrary to the best interests of such children.  Placement  or
regular  visitation  and  communication  with  siblings or half-siblings
shall be presumptively in the child's best interests unless such  place-
ment  or  visitation  and communication would be contrary to the child's
health, safety or welfare, or the lack of geographic proximity precludes
or prevents visitation.
  [1-b.] 1-C. Upon accepting the transfer of care and custody of a child
from the parent, guardian or other person to whom care of the child  has
been  entrusted,  a local social services official shall obtain informa-
tion to the extent known from such person regarding  the  other  parent,
any  person  to  whom  the parent transferring care and custody had been
married at the time of the conception or birth  of  the  child  and  any
other  person  who would be entitled to notice of a proceeding to termi-
nate parental rights pursuant to section three hundred eighty-four-c  of
this  title. Such information shall include, but not be limited to, such
parent's or person's name, last-known address, social  security  number,
employer's  address  and any other identifying information. Any informa-
tion provided pursuant to this subdivision  shall  be  recorded  in  the
uniform  case  record maintained pursuant to section four hundred nine-f

S. 5068                            13

of this article; provided, however, that the  failure  to  provide  such
information shall not invalidate the transfer of care and custody.
  2.  Terms.  (a) The instrument shall be upon such terms, for such time
and subject to such conditions as may be  agreed  upon  by  the  parties
thereto.    The  office  of  children and family services may promulgate
suggested terms and conditions for inclusion in  such  instruments,  but
shall  not require that any particular terms and conditions be included.
If the instrument provides that the child  is  to  be  returned  by  the
authorized  agency  on a date certain or upon the occurrence of an iden-
tifiable event, such agency shall return such child at such time  unless
such  action  would be contrary to court order entered at any time prior
to such date or event or within ten days thereafter pursuant to  section
three  hundred eighty-four-b of this title or article six, ten, or ten-A
of the family court act or unless and so long as the parent or  guardian
is  unavailable  or  incapacitated  to  receive the child. The parent or
guardian may, upon written notice to such agency, request return of  the
child at any time prior to the identified date or event[, whereupon]. IF
THE  RESPONSIBILITY  OF  THE  CHILD  HAS  BEEN TRANSFERRED FOR TEMPORARY
PLACEMENT AND CARE, SUCH AGENCY SHALL RETURN THE CHILD. IF THE CARE  AND
CUSTODY OF THE CHILD HAS BEEN TRANSFERRED such agency may, without court
order,  return  the  child  or,  within ten days after such request, may
notify the parent or guardian that such request is denied. If such agen-
cy denies or fails to act upon such request, the parent or guardian  may
seek  return  of  the  care and custody of the child by motion in family
court for return of such child and order to show cause, or  by  writ  of
habeas  corpus  in the supreme court or family court.  If the instrument
fails to specify a date or identifiable event  upon  which  such  agency
shall return such child, such agency shall return the child within twen-
ty  days after having received notice that the parent or guardian wishes
the child returned, unless such action would be contrary to court  order
entered  at  any  time prior to the expiration of such twenty day period
pursuant to section three hundred eighty-four-b of this title or article
six, ten, or ten-A of the family court act.   Expenditures  by  a  local
social services district for the care and maintenance of a child who has
been  continued  in the care of an authorized agency in violation of the
provisions of this subdivision shall not be subject to state  reimburse-
ment.
  (b) [No] WHEN THE RESPONSIBILITY OF THE CHILD HAS BEEN TRANSFERRED FOR
TEMPORARY PLACEMENT AND CARE NO provisions set forth in any such instru-
ment regarding the right of the parent or guardian to visit the child or
to  have services provided to the child and to the parent or guardian to
strengthen the parental relationship may be terminated or limited by the
authorized agency [having the care and custody of the child].  WHEN  THE
CARE  AND  CUSTODY OF THE CHILD HAS BEEN TRANSFERRED SUCH RIGHTS MAY NOT
BE TERMINATED OR LIMITED  BY  THE  AUTHORIZED  AGENCY  unless:  (i)  the
instrument  shall have been amended to so limit or terminate such right,
pursuant to subdivision three of this section;  or  (ii)  the  right  of
visitation or to such services would be contrary to or inconsistent with
a court order obtained in any proceeding in which the parent or guardian
was a party.
  (c)  The instrument shall state, in lay terms, in conspicuous print of
at least eighteen point type:
  (i) that the parent or guardian has the right, prior  to  signing  the
instrument  transferring  EITHER  THE  RESPONSIBILITY  OF  THE CHILD FOR
TEMPORARY PLACEMENT AND CARE OR TRANSFERRING the care and custody of the
child to an authorized agency, to legal representation of  the  parent's

S. 5068                            14

own  choosing.    The agency shall provide the parent or guardian with a
list of attorneys or legal services organizations, if any, which provide
free legal services to persons unable to otherwise obtain such services;
  (ii)  that  the  parent  or  guardian MAY EITHER TRANSFER THE CARE AND
CUSTODY OF THE CHILD, OR TRANSFER THE RESPONSIBILITY OF  THE  CHILD  FOR
TEMPORARY PLACEMENT AND CARE BUT has no legal obligation to transfer the
[care  and  custody  of  the]  child to such official, and will incur no
legal sanction for failing to do so;
  (iii) that the law permits the instrument to specify a date certain or
an identifiable event upon which the child is to be returned, and if  no
date  or  event is specified, that the parent or guardian has a right to
the return of the child within twenty days  of  a  request  for  return,
unless  otherwise  ordered by the court; and to otherwise have the child
returned in  accordance  with  the  terms  of  the  instrument  and  the
provisions of this section;
  (iv)  that  the parent or guardian has a right to supportive services,
which shall include preventive and other supportive services  authorized
to  be  provided  pursuant to the state's consolidated services plan, to
visit the child, and to determine jointly with the agency the terms  and
frequency of visitation;
  (v)  that  the parent or guardian, subject to the terms of the instru-
ment, has an obligation
  (A) to visit the child,
  (B) to plan for the future of the child,
  (C) to meet with and consult with the agency about such plan,
  (D) to contribute to the support of the child to the extent of his  or
her financial ability to do so, and
  (E) to inform the agency of any change of name and address;
  (vi)  [that] IF THE CARE AND CUSTODY OF THE CHILD HAS BEEN TRANSFERRED
the failure of the parent or guardian to meet the obligations listed  in
subparagraph  (v)  OF  THIS  PARAGRAPH  could  be  the basis for a court
proceeding for the commitment of the guardianship  and  custody  of  the
child to an authorized agency thereby terminating parental rights;
  (vii)  IF  THE  RESPONSIBILITY  OF  THE CHILD HAS BEEN TRANSFERRED FOR
TEMPORARY PLACEMENT AND CARE THE FAILURE OF THE PARENT  OR  GUARDIAN  TO
MEET THE OBLIGATIONS LISTED IN SUBPARAGRAPH (V) OF THIS PARAGRAPH MAY BE
THE  BASIS  FOR A PETITION TO THE COURT FOR TRANSFER OF CARE AND CUSTODY
OF THE CHILD TO AN AUTHORIZED AGENCY;
  (VIII) that the parent or guardian has  a  right  to  a  fair  hearing
pursuant  to  section twenty-two of this chapter concerning the agency's
failure to permit the parent or  guardian  to  visit  the  child  or  to
provide  supportive  services,  which shall include preventive and other
supportive services authorized to be provided pursuant  to  the  state's
consolidated services plan, to the child and to the parent or guardian;
  [(viii)]  (IX)  the amount of money which the parent will periodically
contribute to the support  of  the  child  and  the  schedule  for  such
payments, if known.
  [(ix)  that  if]  (X)  IF  THE  CARE AND CUSTODY OF THE CHILD HAS BEEN
TRANSFERRED AND the child remains in foster care for fifteen of the most
recent twenty-two months, the agency may be required by law  to  file  a
petition to terminate parental rights.
  (d)  In any case where a parent who has transferred EITHER THE RESPON-
SIBILITY OF A CHILD FOR TEMPORARY PLACEMENT AND CARE OR TRANSFERRED care
and custody of a child to a social services official  pursuant  to  this
section  informs  the social services official that an order or judgment
conferring visitation rights relating to the child has been  entered  by

S. 5068                            15

the  family  court  or  supreme  court  or  that  a written agreement as
described in section two hundred thirty-six of  the  domestic  relations
law  between  the  parents  confers such rights, any instrument executed
pursuant to this section shall incorporate the provisions of such order,
judgment  or agreement to the extent that visitation rights are affected
and shall provide for visitation or other rights  as  required  by  such
order,  judgment  or  agreement. Such incorporation shall not preclude a
social services official from exercising his authority pursuant to para-
graph (e) or (f) of this subdivision.
  (e) Where a social  services  official  opposes  incorporation  of  an
order, judgment or agreement described in paragraph (d) of this subdivi-
sion,  such  official may, upon execution of the instrument described in
this section and upon notice to the non-custodial parent or  grandparent
named  in  such  order,  judgment  or  agreement,  be heard thereon in a
proceeding pursuant to section three hundred fifty-eight-a of this chap-
ter.
  (f) Nothing in this section shall  be  deemed  to  prohibit  a  social
services  official  or an attorney for the child, if any, from making an
application to modify the terms  of  a  visitation  order,  incorporated
pursuant  to  this  section,  for  good  cause shown, upon notice to all
interested parties, or to limit the right of a non-custodial  parent  or
grandparent to seek visitation pursuant to applicable provisions of law.
  (g)  In the event a child whose care and custody is transferred pursu-
ant to this section is admitted to a hospital operated  or  licensed  by
the  office  of  mental  health  and  cannot be returned to the physical
custody of his or her parent or guardian upon request because,  pursuant
to  section  four  hundred  of this chapter, the medical director of the
facility has not authorized the removal of the child,  the  child  shall
nonetheless be deemed to have been returned to the legal care and custo-
dy  of  his or her parent or guardian. Expenditures by a social services
district for the care and maintenance of such a child shall  be  subject
to  state  reimbursement  notwithstanding  the provisions of section one
hundred fifty-three-b of this chapter.
  (h) (i) Where a local social services official determines that a child
is at significant risk of placement in the care and custody of the local
commissioner of social services during the eighteen  months  immediately
following  review by such official because the custodial parent or legal
guardian of such child is suffering  from  a  progressively  chronic  or
irreversibly  fatal illness and it is determined that there is neither a
relative nor a close friend identified by the custodial  parent  or  the
legal  guardian  able  to  assume  legal  guardianship of the child, the
custodial parent or legal guardian shall be assisted by the local social
services district in transferring the care and custody of the  child  to
an  authorized  agency  by  a  written instrument in accordance with the
provisions for this section which provides the transfer shall  not  take
effect  until  the parent or legal guardian dies, becomes debilitated or
incapacitated as defined in subdivision one of section seventeen hundred
twenty-six of the surrogate's court procedure act.
  (ii) Where a local social services official determines that a child is
at significant risk of placement in the care and custody  of  the  local
commissioner  of  social services during the eighteen months immediately
following a review of such official  because  the  custodial  parent  or
legal guardian is suffering from a progressively chronic or irreversibly
fatal  illness and there is a relative or close friend identified by the
custodial parent or legal guardian who is able  and  willing  to  assume
care and custody of the child, but who requires foster care services and

S. 5068                            16

financial  support  thereof  pursuant  to  section three hundred ninety-
eight-a of this article, the custodial parent or legal guardian shall be
assisted by the local social services district in transferring the  care
and custody of the child to an authorized agency by a written instrument
in accordance with the provisions of this section. Such instrument shall
provide  that  the  transfer  of custody shall not take effect until the
parent or legal guardian dies, becomes debilitated or  incapacitated  as
defined  in  subdivision  one of section seventeen hundred twenty-six of
the surrogate's court procedure act. If otherwise qualified, the  social
services  official shall assist the person identified to accept care and
custody of the child to become certified as a foster parent.
  (iii) A local social services official  who  accepts  or  proposes  to
accept  the care and custody of a child by means of a written instrument
executed pursuant to this paragraph, shall, pursuant  to  section  three
hundred  fifty-eight-a of this chapter, petition the family court of the
county or city in which the local social services official  has  his  or
her  office  to  approve  such  written instrument. A written instrument
executed pursuant to this paragraph and  approved  pursuant  to  section
three hundred fifty-eight-a of this chapter shall be in effect until the
court  reviews  the  child's  placement pursuant to article ten-A of the
family court act. The status of a child subject to  such  an  instrument
shall  be  reviewed by the court pursuant to article ten-A of the family
court act.
  (iv) Upon receiving a notice from the custodial parent  or  the  legal
guardian  that  the parent or legal guardian is no longer debilitated or
incapacitated and that the parent or legal guardian requests the immedi-
ate return of the child, the social services district shall return  such
child  to  the  parent  or  legal  guardian within ten days of receiving
notice, except where a contrary court order has been issued pursuant  to
part two, five or seven of article ten of the family court act.
  3.  Amendment.  (a)  The parties to the instrument or anyone acting on
their behalf with their consent may amend it by mutual consent but  only
by a supplemental instrument executed in the same manner as the original
instrument. The supplemental instrument shall be attached to, and become
part  of,  the  original  instrument.  The supplemental instrument shall
contain the recitation required in paragraph (c) of subdivision  two  of
this section.
  (b)  The  instrument shall also be deemed amended where ordered by the
family court pursuant to the provisions of paragraph (d) of  subdivision
ten of section three hundred fifty-eight-a of this chapter.
  4.  Execution. The instrument shall be executed in the presence of one
or more witnesses and shall  include  only  the  provisions,  terms  and
conditions agreed upon by the parties thereto.
  5. Records. The instrument shall be kept in a file maintained for that
purpose  by  the  agency  accepting the care and custody of the child. A
copy of the instrument shall be given to the parent or guardian  at  the
time of the execution of the instrument.
  6.  An  instrument executed pursuant to the provisions of this section
shall not constitute a remand or commitment pursuant to this chapter.
  S 6. The office of children and  family  services  shall,  within  six
months of the effective date of this act:
  (a)  amend its internal policies, manuals and practices to comply with
the provisions of this act;
  (b) make every effort to ensure that local social  services  districts
comply with the provisions of this act; and

S. 5068                            17

  (c)  initiate  formal  proceedings  to amend its rules and regulations
including, but not limited to, section 430.10 of title 18 of  the  offi-
cial  compilation  of  codes,  rules and regulations of the state of New
York.
  S 7. The commissioner of children and family services shall submit two
reports to the governor and the legislature, the first of which shall be
delivered  eighteen  months after the effective date of this act and the
second report shall be  delivered  thirty-six  months  after  the  first
report which shall include:
  (a)  an  analysis  of  the impact of this act on local social services
districts to include but not be limited to obstacles to  implementation,
changes in parental attitudes and/or participation in planning for their
child, impact on placement outcomes, and recommendations; and
  (b)  related feedback and recommendations from parents who have sought
to retain custody of their children  being  placed  by  a  local  social
services  official,  when  the  primary reason for such placement is the
provision of necessary services for the child's emotional, behavioral or
mental disorder.
  S 8. This act shall take effect immediately; provided that the  amend-
ments  to  paragraph (b) of subdivision 1 of section 358-a of the social
services law made by section three of this act shall be subject  to  the
expiration  and  reversion  of  such paragraph pursuant to section 28 of
part C of chapter 83 of the laws of 2002, as amended when upon such date
the provisions of section four of this act shall take effect.