LBD06669-06-4
S. 7339--A 2
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 amended by chapter 457 of the laws of 1988, and subdi-
vision 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. 7339--A 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. 7339--A 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. 7339--A 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. 7339--A 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. 7339--A 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. 7339--A 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. 7339--A 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. 7339--A 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. 7339--A 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. 7339--A 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. 7339--A 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. 7339--A 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. 7339--A 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. 7339--A 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. 7339--A 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 the office 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.