Bill S5457-2011

Provides for the care and custody of destitute children

Provides for the care and custody of destitute children.

Details

Actions

  • Jan 4, 2012: REFERRED TO CHILDREN AND FAMILIES
  • Jun 24, 2011: COMMITTED TO RULES
  • Jun 14, 2011: ADVANCED TO THIRD READING
  • Jun 13, 2011: 2ND REPORT CAL.
  • Jun 7, 2011: 1ST REPORT CAL.1049
  • May 24, 2011: REFERRED TO CHILDREN AND FAMILIES

Meetings

Votes

VOTE: COMMITTEE VOTE: - Children and Families - Jun 7, 2011
Ayes (5): Johnson, Young, Savino, Montgomery, Duane
Ayes W/R (1): Saland

Memo

BILL NUMBER:S5457

TITLE OF BILL: An act to amend the social services law and the family court act, in relation to the care and custody of destitute children; and to repeal paragraph (i) of subdivision 6 of section 398 of the social services law relating to providing care for destitute minors between sixteen and eighteen years of age

SUMMARY OF PROVISIONS: Section 1 would amend the definition of "destitute child" to provide that it includes children who are not subject to article 10 of the Family Court Act and are not under the care of a parent or other legally responsible adult.

Section 2 of the bill would amend the Social Services Law to create a legal mechanism for local social service districts to obtain an order of custody for a destitute child for whom the districts are providing care. This new provision would also provide for continued court review of the care provided to these children.

Sections 3, 4, 6, 7, 8, 9, 10 and 11 amend provisions in the Social Services Law and the Family Court Act to refer to the new procedure established for the local social services district to obtain an order of custody for destitute children.

Section 5 repeals a provision of the Social Services Law that authorized the local commissioner of social services to provide care in an institution or agency boarding home for destitute minors between 16 and 18 years of age.

Section 12 provides that the bill would take effect immediately.

REASONS FOR SUPPORT: Under current Social Services Law, local social services districts have a variety of responsibilities with regard to destitute children, including, in some cases, taking destitute children into foster care. Destitute children include children whose parents have died, leaving no other family and friends to care for them; unaccompanied refugee children; children whose parents, through circumstances other than neglect, are unable to either care for children themselves or make alternative arrangements for their care; and child vIctims of human trafficking who are found within New York State without a family member to care for them.

There is now no statutory mechanism, however, to seek judicial approval for the taking a destitute child into foster care, or for the review of the status of a destitute child in foster care (other

than for former foster care youth returned to foster care pursuant to section 1091 of the Family Court Act). Though not its central intent, Chapter 3 of the Laws of 2005 repealed Social Services Law section 392, the statutory provision that provided for the periodic court review of children placed into foster care other than for reasons of abuse and neglect, persons in need of supervision, and juvenile delinquency petitions. As a result, Article 10-A of the Family Court Act does not currently identify destitute children as being among those children whose placement should be reviewed by the court.

This bill would provide a legal mechanism for local social service districts to obtain an order of custody for destitute children for whom districts are providing care. The bill will protect these children by requiring that an attorney be appointed to represent them and providing for continued court review of their care. Other children in foster care receive continued court review of their care, to which these children should be similarly entitled.

This measure would have no fiscal impact on the State but may provide for additional federal Title IV -E Foster Care Maintenance Payments to localities for the reimbursement of expenditures for some of these children.

Accordingly, the Mayor urges the earliest possible favorable consideration of this proposal by the Legislature.


Text

STATE OF NEW YORK ________________________________________________________________________ 5457 2011-2012 Regular Sessions IN SENATE May 24, 2011 ___________
Introduced by Sen. SAVINO -- 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 and the family court act, in relation to the care and custody of destitute children; and to repeal paragraph (i) of subdivision 6 of section 398 of the social services law relating to providing care for destitute minors between sixteen and eighteen years of age THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 3 of section 371 of the social services law, as amended by chapter 722 of the laws of 1978, paragraph (d) as amended and paragraph (e) as added by chapter 342 of the laws of 2010, is amended to read as follows: 3. "Destitute child" means a child who[, through no neglect on the part of its parent, guardian or custodian, is] (a) [destitute or homeless, or (b)] IS NOT SUBJECT TO ARTICLE TEN OF THE FAMILY COURT ACT, IS UNAC- COMPANIED BY A PARENT OR OTHER LEGALLY RESPONSIBLE PERSON, AND IS EITHER in a state of want or suffering due to lack of sufficient food, cloth- ing, [or] shelter, or medical or surgical care, or [(c) a person under the age of eighteen years who is absent from his legal residence without the consent of his parent, legal guardian or custodian, or (d) a person under the age of eighteen who] is without a place of shelter where APPROPRIATE supervision and care are available, or [(e)] (B) IS a former foster care youth under the age of twenty-one who was previously placed in the care and custody or custody and guardi- anship of the local commissioner of social services or other officer, board or department authorized to receive children as public charges, and who was discharged from foster care due to a failure to consent to continuation in placement, who has returned to foster care pursuant to section one thousand ninety-one of the family court act. S 2. The social services law is amended by adding a new section 384-d to read as follows:
S 384-D. CARE AND CUSTODY OF DESTITUTE CHILDREN. 1. SCOPE. THIS SECTION PROVIDES A MECHANISM FOR A LOCAL COMMISSIONER OF SOCIAL SERVICES TO OBTAIN AN ORDER OF CUSTODY FOR CERTAIN DESTITUTE CHILDREN FOR WHOM HE OR SHE IS PROVIDING CARE AND FOR CONTINUED COURT REVIEW OF THE CARE OF THESE CHILDREN. 2. INITIATION OF JUDICIAL PROCEEDING. A LOCAL COMMISSIONER OF SOCIAL SERVICES SHALL, WITHIN THIRTY DAYS OF ACCEPTING THE CARE AS A PUBLIC CHARGE OF A CHILD WHO APPEARS TO BE A DESTITUTE CHILD, AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION THREE OF SECTION THREE HUNDRED SEVENTY-ONE OF THIS TITLE, FILE A PETITION IN THE FAMILY COURT ALLEGING THAT THE CHILD IS A DESTITUTE CHILD AND REQUESTING THAT THE COURT PLACE THE CHILD IN THE TEMPORARY CARE AND CUSTODY OF SUCH COMMISSIONER WHILE AN INVESTI- GATION IS COMMENCED TO DETERMINE WHETHER THE CHILD IS AN ABUSED OR NEGLECTED CHILD SUBJECT TO THE PROVISIONS OF ARTICLE TEN OF THE FAMILY COURT ACT OR A DESTITUTE CHILD AS DEFINED IN PARAGRAPH (A) OF SUBDIVI- SION THREE OF SECTION THREE HUNDRED SEVENTY-ONE OF THIS TITLE. 3. CONTENTS OF PETITION. (A) THE PETITION SHALL SET FORTH: (I) THE BASIS FOR THE BELIEF THAT THE CHILD IS A DESTITUTE CHILD; (II) WHETHER THE WHEREABOUTS OF THE PARENT OR PARENTS, GUARDIAN OR GUARDIANS, OR OTHER PERSON LEGALLY RESPONSIBLE ARE KNOWN, AND IF SO, THE ALLEGED ADDRESS OF THAT PERSON; AND (III) ANY OTHER KNOWN PERSONS LEGALLY RESPONSIBLE FOR THE CHILD, AND ANY OTHER RELATIVES OF THE CHILD. (B) THE PETITION SHALL CONTAIN A NOTICE IN CONSPICUOUS PRINT PROVIDING THAT IF THE CHILD REMAINS IN FOSTER CARE FOR FIFTEEN OF THE TWENTY-TWO MONTHS THAT FOLLOW, THE AGENCY MAY BE REQUIRED BY LAW TO FILE A PETITION TO TERMINATE PARENTAL RIGHTS. (C) THE PETITION SHALL ALSO SET FORTH THE EFFORTS THAT WERE MADE, PRIOR TO THE PLACEMENT OF THE CHILD INTO FOSTER CARE, TO PREVENT 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. (D) THE PETITION SHALL REQUEST THAT A TEMPORARY ORDER BE MADE TRANS- FERRING THE CARE AND CUSTODY OF THE CHILD TO THE LOCAL COMMISSIONER OF SOCIAL SERVICES. 4. INITIAL APPEARANCE. AT THE INITIAL APPEARANCE: (A) THE COURT SHALL APPOINT AN ATTORNEY TO REPRESENT THE CHILD; AND (B) THE COURT SHALL CONSIDER THE FOLLOWING ISSUES AND INCLUDE ITS FINDINGS IN ITS ORDER: (I) WHETHER PLACEMENT OF THE CHILD IN THE TEMPORARY CARE AND CUSTODY OF THE LOCAL COMMISSIONER OF SOCIAL SERVICES IS IN THE BEST INTEREST OF THE CHILD; (II) WHETHER IT WOULD BE CONTRARY TO THE WELFARE OF THE CHILD TO CONTINUE IN HIS OR HER OWN HOME; (III) WHETHER, WHERE APPROPRIATE, REASONABLE EFFORTS WERE MADE PRIOR TO THE PLACEMENT OF THE CHILD INTO FOSTER CARE TO PREVENT REMOVAL FROM HIS OR HER HOME; (IV) WHETHER, PRIOR TO THE INITIATION OF THE COURT PROCEEDING REQUIRED PURSUANT TO THIS SUBDIVISION, REASONABLE EFFORTS WERE MADE TO MAKE IT POSSIBLE FOR THE CHILD TO RETURN SAFELY HOME; AND (V) IF REASONABLE EFFORTS TO PREVENT THE NECESSITY FOR REMOVAL OF THE CHILD FROM THE HOME WERE NOT MADE, WHETHER THE ABSENCE OF THOSE EFFORTS WAS REASONABLE UNDER THE CIRCUMSTANCES. (C) IF THE COURT PLACES THE CHILD IN THE TEMPORARY CUSTODY OF THE LOCAL COMMISSIONER OF SOCIAL SERVICES, THE COURT SHALL:
(I) ORDER AN INVESTIGATION INTO THE FAMILY CIRCUMSTANCES OF THE CHILD IN ORDER TO DETERMINE WHAT ASSISTANCE AND CARE, SUPERVISION OR TREAT- MENT, IF ANY, SUCH CHILD REQUIRES; (II) SCHEDULE A RETURN DATE FOR AN INVESTIGATION REVIEW PROCEEDING WITHIN SIXTY DAYS IN ACCORDANCE WITH SUBDIVISION SIX OF THIS SECTION; (III) SCHEDULE A DATE CERTAIN FOR AN INITIAL PERMANENCY HEARING PURSU- ANT TO PARAGRAPH TWO OF SUBDIVISION (A) OF SECTION ONE THOUSAND EIGHTY- NINE OF THE FAMILY COURT ACT. THIS DATE SHALL BE NO LATER THAN EIGHT MONTHS FROM THE DATE THE LOCAL COMMISSIONER OF SOCIAL SERVICES ACCEPTED CARE OF THE CHILD. 5. NOTICE. AT THE INITIAL APPEARANCE AND AT ANY HEARING THEREAFTER, THE COURT MAY DIRECT THAT SERVICE OF A NOTICE OF THE PROCEEDING AND A COPY OF THE PETITION SHALL BE MADE UPON THE PARENT OR PARENTS, GUARDIAN OR GUARDIANS OR OTHER LEGALLY RESPONSIBLE PERSON IN SUCH MANNER AS THE COURT MAY DIRECT. IF THE COURT ORDERS SERVICE BY PUBLICATION, SERVICE SHALL BE MADE PURSUANT TO RULE THREE HUNDRED SIXTEEN OF THE CIVIL PRAC- TICE LAW AND RULES, PROVIDED THAT A SINGLE PUBLICATION OF THE SUMMONS OR OTHER PROCESS WITH A NOTICE IN ONLY ONE NEWSPAPER DESIGNATED IN THE ORDER SHALL BE SUFFICIENT. IN NO EVENT SHALL THE ENTIRE PETITION BE PUBLISHED. THE NOTICE TO BE PUBLISHED WITH THE SUMMONS OR OTHER PROCESS SHALL STATE THE DATE, TIME, PLACE AND PURPOSE OF THE PROCEEDING. 6. INVESTIGATION REVIEW PROCEEDING. AT THE INVESTIGATION REVIEW PROCEEDING, THE COURT SHALL: (A) REVIEW THE RESULT OF THE INVESTIGATION CONDUCTED BY THE LOCAL COMMISSIONER OF SOCIAL SERVICES OF THE FAMILY CIRCUMSTANCES OF THE CHILD; (B) DETERMINE WHETHER: (I) FURTHER INVESTIGATION IS NECESSARY, AND IF SO, SCHEDULE A DATE FOR SUCH PROCEEDING; (II) NOTICE SHALL BE MADE UPON ANY PARENT, GUARDIAN OR OTHER LEGALLY RESPONSIBLE PERSON AND THE METHOD OF SUCH NOTICE; (III) A PETITION UNDER ARTICLE TEN OF THE FAMILY COURT ACT SHOULD BE SUBSTITUTED FOR THE PROCEEDING DESCRIBED BY THIS SECTION; AND (IV) THE CHILD IS A DESTITUTE CHILD AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION THREE OF SECTION THREE HUNDRED SEVENTY-ONE OF THIS TITLE. 7. DISPOSITION AND ORDER. IF THE COURT DETERMINES THAT THE CHILD IS A DESTITUTE CHILD, THE COURT SHALL ISSUE AN ORDER PLACING THE CHILD IN THE CARE AND CUSTODY OF THE LOCAL COMMISSIONER OF SOCIAL SERVICES. (A) SUCH ORDER SHALL CONTAIN THE DATE SCHEDULED FOR THE INITIAL PERMANENCY HEARING. (B) SUCH ORDER SHALL REQUIRE THAT THE PLACEMENT CONTINUE UNTIL THE COMPLETION OF THE INITIAL PERMANENCY HEARING. (C) IF THE COURT DETERMINES THAT PLACEMENT SHOULD CONTINUE AFTER COMPLETION OF THE INITIAL PERMANENCY HEARING, SUBSEQUENT PERMANENCY HEARINGS SHALL BE SCHEDULED PURSUANT TO PARAGRAPH TWO OF SUBDIVISION (A) OF SECTION ONE THOUSAND EIGHTY-NINE OF THE FAMILY COURT ACT. S 3. Subdivision 1 of section 398 of the social services law is amended to read as follows: 1. As to destitute children: Assume charge of, and provide CARE AND support for, any destitute child who cannot be properly cared for in his OR HER home, AND FILE A PETITION TO OBTAIN CUSTODY OF A DESTITUTE CHILD AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION THREE OF SECTION THREE HUNDRED SEVENTY-ONE OF THIS ARTICLE PURSUANT TO SECTION THREE HUNDRED EIGHTY-FOUR-D OF THIS ARTICLE. 4. The opening paragraph and paragraphs (a), (b) and (f) of subdivi- sion 2 of section 398 of the social services law, the opening paragraph
and paragraph (a) as amended by chapter 880 of the laws of 1976, para- graph (b) as amended by chapter 555 of the laws of 1978 and paragraph (f) as added by chapter 627 of the laws of 1984, are amended to read as follows: As to neglected, abused [or], abandoned, OR DESTITUTE children: (a) Investigate [the] ANY alleged neglect, abuse or abandonment of a child[,]; offer protective social services to prevent injury to the child, to safeguard his OR HER welfare, and to preserve and stabilize family life wherever possible [and,]; if necessary, bring the case before the family court for adjudication and care for the child until the court acts in the matter; and, in the case of an abandoned OR A DESTITUTE child, AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION THREE OF SECTION THREE HUNDRED SEVENTY-ONE OF THIS ARTICLE, [shall] promptly petition the family court to obtain custody of such child. (b) Receive and care for any child alleged to be neglected, abused [or], abandoned, OR DESTITUTE who is temporarily placed in [his] THE care OF THE LOCAL COMMISSIONER OF SOCIAL SERVICES by the family court pending adjudication by such court of the alleged neglect, abuse or abandonment, OR FINDING THAT THE CHILD IS A DESTITUTE CHILD, including the authority to establish, operate, maintain and approve facilities for such purpose in accordance with the regulations of the [department] OFFICE OF CHILDREN AND FAMILY SERVICES; and receive and care for any neglected, abused [or], abandoned, OR DESTITUTE child placed or discharged to [his] THE care OF THE LOCAL COMMISSIONER OF SOCIAL SERVICES by the family court. (f) Report to the local criminal justice agency and to the statewide central register for missing children as described in section eight hundred thirty-seven-e of the executive law such information as required on a form prescribed by the commissioner of the division of criminal justice services within forty-eight hours after an abandoned OR DESTI- TUTE child is found. S 5. Paragraph (i) of subdivision 6 of section 398 of the social services law is REPEALED. S 6. Subdivision (a) of section 249 of the family court act, as amended by chapter 41 of the laws of 2010, is amended to read as follows: (a) In a proceeding under article three, seven, ten or ten-A of this act or where a revocation of an adoption consent is opposed under section one hundred fifteen-b of the domestic relations law or in any proceeding under section three hundred fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four [or], three hundred eighty- four-b, OR THREE HUNDRED EIGHTY-FOUR-D of the social services law or when a minor is sought to be placed in protective custody under section one hundred fifty-eight of this act, the family court shall appoint an attorney to represent a minor who is the subject of the proceeding or who is sought to be placed in protective custody, if independent legal representation is not available to such minor. In any proceeding to extend or continue the placement of a juvenile delinquent or person in need of supervision pursuant to section seven hundred fifty-six or 353.3 of this act or any proceeding to extend or continue a commitment to the custody of the commissioner of mental health or the commissioner of mental retardation and developmental disabilities pursuant to section 322.2 of this act, the court shall not permit the respondent to waive the right to be represented by counsel chosen by the respondent, respondent's parent, or other person legally responsible for the respondent's care, or by assigned counsel. In any other proceeding in
which the court has jurisdiction, the court may appoint an attorney to represent the child, when, in the opinion of the family court judge, such representation will serve the purposes of this act, if independent legal counsel is not available to the child. The family court on its own motion may make such appointment. S 7. Section 1086 of the family court act, as added by section 27 of part A of chapter 3 of the laws of 2005, is amended to read as follows: S 1086. Purpose. The purpose of this article is to establish uniform procedures for permanency hearings for all children who are placed in foster care pursuant to section three hundred fifty-eight-a, three hundred eighty-four [or], three hundred eighty-four-a, OR THREE HUNDRED EIGHTY-FOUR-D of the social services law or pursuant to section one thousand twenty-two, one thousand twenty-seven, or one thousand fifty- two of this act; children who are directly placed with a relative pursu- ant to section one thousand seventeen or one thousand fifty-five of this act; and children who are freed for adoption. It is meant to provide children placed out of their homes timely and effective judicial review that promotes permanency, safety and well-being in their lives. S 8. Subdivision (a) of section 1087 of the family court act, as amended by chapter 342 of the laws of 2010, is amended to read as follows: (a) "Child" shall mean a person under the age of eighteen who is placed in foster care pursuant to section three hundred fifty-eight-a, three hundred eighty-four [or], three hundred eighty-four-a, OR THREE HUNDRED EIGHTY-FOUR-D of the social services law or pursuant to section one thousand twenty-two, one thousand twenty-seven, or one thousand fifty-two of this act; or directly placed with a relative pursuant to section one thousand seventeen or one thousand fifty-five of this act; or who has been freed for adoption or a person between the ages of eigh- teen and twenty-one who has consented to continuation in foster care or trial discharge status; or a former foster care youth under the age of twenty-one for whom a court has granted a motion to permit the former foster care youth to return to the custody of the local commissioner of social services or other officer, board or department authorized to receive children as public charges. S 9. Section 1088 of the family court act, as separately amended by chapters 41 and 342 of the laws of 2010, is amended to read as follows: S 1088. Continuing court jurisdiction. If a child is placed pursuant to section three hundred fifty-eight-a, three hundred eighty-four, [or] three hundred eighty-four-a OR THREE HUNDRED EIGHTY-FOUR-D of the social services law, or pursuant to section one thousand seventeen, one thou- sand twenty-two, one thousand twenty-seven or one thousand fifty-two of this act, or directly placed with a relative pursuant to section one thousand seventeen or one thousand fifty-five of this act; or if the child is freed for adoption pursuant to section three hundred eighty- three-c, three hundred eighty-four or three hundred eighty-four-b of the social services law, the case shall remain on the court's calendar and the court shall maintain jurisdiction over the case until the child is discharged from placement and all orders regarding supervision, protection or services have expired. The court shall rehear the matter whenever it deems necessary or desirable, or upon motion by any party entitled to notice in proceedings under this article, or by the attorney for the child, and whenever a permanency hearing is required by this article. While the court maintains jurisdiction over the case, the provisions of section one thousand thirty-eight of this act shall continue to apply. The court shall also maintain jurisdiction over a
case for purposes of hearing a motion to permit a former foster care youth under the age of twenty-one who was discharged from foster care due to a failure to consent to continuation of placement to return to the custody of the local commissioner of social services or other offi- cer, board or department authorized to receive children as public charg- es. S 10. Paragraph 2 of subdivision (a) of section 1089 of the family court act, as amended by chapter 437 of the laws of 2006, is amended to read as follows: (2) All other permanency hearings. At the conclusion of the hearing pursuant to section one thousand twenty-two, one thousand twenty-seven, or one thousand fifty-two of this act, OR SECTION THREE HUNDRED EIGHTY- FOUR-D OF THE SOCIAL SERVICES LAW, at which the child was remanded or placed and upon the court's approval of a voluntary placement instrument pursuant to section three hundred fifty-eight-a of the social services law, the court shall set a date certain for an initial permanency hear- ing, advise all parties in court of the date set and include the date in the order. Orders issued in subsequent court hearings prior to the permanency hearing, including, but not limited to, the order of place- ment issued pursuant to section one thousand fifty-five of this act, OR PURSUANT TO SECTION THREE HUNDRED EIGHTY-FOUR-D OF THE SOCIAL SERVICES LAW, shall include the date certain for the permanency hearing. The initial permanency hearing shall be commenced no later than six months from the date which is sixty days after the child was removed from his or her home; provided, however, that if a sibling or half-sibling of the child has previously been removed from the home and has a permanency hearing date certain scheduled within the next eight months, the perman- ency hearing for each child subsequently removed from the home shall be scheduled on the same date certain that has been set for the first child removed from the home, unless such sibling or half-sibling has been removed from the home pursuant to article three or seven of this act. The permanency hearing shall be completed within thirty days of the scheduled date certain. S 11. Subdivision (a) of section 1090 of the family court act, as separately amended by chapters 41 and 342 of the laws of 2010, is amended to read as follows: (a) If an attorney for the child has been appointed by the family court in a proceeding pursuant to section three hundred fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four, [or] three hundred eighty-four-b, OR THREE HUNDRED EIGHTY-FOUR-D of the social services law, or article ten of this act, the appointment of the attor- ney for the child shall continue without further court order or appoint- ment, unless another appointment of an attorney for the child has been made by the court, until the child is discharged from placement and all orders regarding supervision, protection or services have expired. The attorney shall also represent the child without further order or appointment in any proceedings under article ten-B of this act. All notices, reports and motions required by law shall be provided to the child's attorney. The child's attorney may be relieved of his or her representation upon application to the court for termination of the appointment. Upon approval of the application, the court shall imme- diately appoint another attorney to whom all notices, reports, and motions required by law shall be provided. S 12. This act shall take effect immediately.

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