S T A T E   O F   N E W   Y O R K
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    S. 2233--A                                            A. 5462--A

                       2009-2010 Regular Sessions

                      S E N A T E - A S S E M B L Y

                            February 13, 2009
                               ___________

IN  SENATE -- Introduced by Sens. MONTGOMERY, HASSELL-THOMPSON, KRUEGER,
  MONSERRATE -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Children and Families -- reported favor-
  ably  from said committee and committed to the Committee on Finance --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

IN ASSEMBLY -- Introduced by M. of A. AUBRY, PERRY, CAMARA, ROSENTHAL --
  read  once and referred to the Committee on Social Services -- commit-
  tee discharged, bill amended, ordered reprinted as amended and  recom-
  mitted to said committee

AN ACT to amend the social services law, in relation to the guardianship
  and  custody  of  destitute or dependent children who have a parent or
  parents incarcerated or in a  residential  substance  abuse  treatment
  program

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

  Section 1. Subparagraph (i) of  paragraph  (l)  of  subdivision  3  of
section  384-b  of the social services law, as amended by chapter 460 of
the laws of 2006, is amended and a new subparagraph (v) is added to read
as follows:
  (i) Notwithstanding any other law to the contrary, whenever: the child
shall have been in foster care for fifteen months  of  the  most  recent
twenty-two  months;  or a court of competent jurisdiction has determined
the child to be an abandoned child; or the parent has been convicted  of
a  crime  as set forth in subdivision eight of this section, the author-
ized agency having care of the child shall file a petition  pursuant  to
this  section  unless  based  on  a case by case determination:  (A) the
child is being cared for by a relative or relatives; or (B)  the  agency
has  documented  in  the most recent case plan, a copy of which has been
made available to the court, a compelling reason  for  determining  that

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04430-06-9
              

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the filing of a petition would not be in the best interest of the child;
or (C) the agency has not provided to the parent or parents of the child
such  services as it deems necessary for the safe return of the child to
the parent or parents, unless such services are not legally required; OR
(D)  THE PARENT OR PARENTS ARE INCARCERATED, OR PARTICIPATING IN A RESI-
DENTIAL SUBSTANCE ABUSE TREATMENT PROGRAM, OR THE PRIOR INCARCERATION OR
PARTICIPATION OF A PARENT OR PARENTS IN A  RESIDENTIAL  SUBSTANCE  ABUSE
TREATMENT  PROGRAM  IS A SIGNIFICANT FACTOR IN WHY THE CHILD HAS BEEN IN
FOSTER CARE FOR FIFTEEN OF THE LAST TWENTY-TWO MONTHS, PROVIDED THAT THE
PARENT MAINTAINS A MEANINGFUL ROLE IN THE  CHILD'S  LIFE  BASED  ON  THE
CRITERIA  SET FORTH IN SUBPARAGRAPH (V) OF THIS PARAGRAPH AND THE AGENCY
HAS NOT DOCUMENTED A REASON WHY IT WOULD  OTHERWISE  BE  APPROPRIATE  TO
FILE A PETITION PURSUANT TO THIS SECTION.
  (V)  FOR  THE PURPOSES OF CLAUSE (D) OF SUBPARAGRAPH (I) OF THIS PARA-
GRAPH, AN ASSESSMENT OF WHETHER A PARENT MAINTAINS A MEANINGFUL ROLE  IN
HIS  OR  HER  CHILD'S LIFE SHALL BE BASED ON EVIDENCE, WHICH MAY INCLUDE
THE FOLLOWING: A PARENT'S EXPRESSIONS OR ACTS  MANIFESTING  CONCERN  FOR
THE  CHILD, SUCH AS LETTERS, TELEPHONE CALLS, VISITS, AND OTHER FORMS OF
COMMUNICATION WITH THE CHILD; EFFORTS BY THE PARENT TO  COMMUNICATE  AND
WORK WITH THE AUTHORIZED AGENCY, LAW GUARDIAN, FOSTER PARENT, THE COURT,
AND THE PARENT'S ATTORNEY OR OTHER INDIVIDUALS PROVIDING SERVICES TO THE
PARENT, INCLUDING CORRECTIONAL, MENTAL HEALTH AND SUBSTANCE ABUSE TREAT-
MENT  PROGRAM  PERSONNEL  FOR  THE PURPOSE OF COMPLYING WITH THE SERVICE
PLAN AND REPAIRING, MAINTAINING OR BUILDING THE  PARENT-CHILD  RELATION-
SHIP; A POSITIVE RESPONSE BY THE PARENT TO THE AUTHORIZED AGENCY'S DILI-
GENT  EFFORTS  AS  DEFINED IN PARAGRAPH (F) OF SUBDIVISION SEVEN OF THIS
SECTION; AND WHETHER THE CONTINUED INVOLVEMENT  OF  THE  PARENT  IN  THE
CHILD'S  LIFE  IS  IN  THE CHILD'S BEST INTEREST. IN ASSESSING WHETHER A
PARENT MAINTAINS A MEANINGFUL ROLE IN  HIS  OR  HER  CHILD'S  LIFE,  THE
AUTHORIZED  AGENCY SHALL GATHER INPUT FROM INDIVIDUALS AND AGENCIES IN A
REASONABLE POSITION TO HELP MAKE  THIS  ASSESSMENT,  INCLUDING  BUT  NOT
LIMITED  TO,  THE AUTHORIZED AGENCY, LAW GUARDIAN, PARENT, CHILD, FOSTER
PARENT OR OTHER INDIVIDUALS OF  IMPORTANCE  IN  THE  CHILD'S  LIFE,  AND
PARENT'S ATTORNEY OR OTHER INDIVIDUALS PROVIDING SERVICES TO THE PARENT,
INCLUDING  CORRECTIONAL,  MENTAL  HEALTH  AND  SUBSTANCE ABUSE TREATMENT
PROGRAM PERSONNEL. THE COURT MAY MAKE AN ORDER DIRECTING THE  AUTHORIZED
AGENCY TO UNDERTAKE FURTHER STEPS TO AID IN COMPLETING ITS ASSESSMENT.
  S  2.  Paragraph  (a)  of subdivision 7 of section 384-b of the social
services law, as amended by section 57 of part A of  chapter  3  of  the
laws of 2005, is amended to read as follows:
  (a)  For  the  purposes of this section, "permanently neglected child"
shall mean a child who is in the care of an authorized agency and  whose
parent  or custodian has failed for a period of either at least one year
or fifteen out of the most recent twenty-two months following  the  date
such  child came into the care of an authorized agency substantially and
continuously or repeatedly to maintain contact  with  or  plan  for  the
future  of the child, although physically and financially able to do so,
notwithstanding the agency's diligent efforts to encourage and strength-
en the parental relationship when such efforts will not  be  detrimental
to  the  best  interests  of  the  child.   THE COURT SHALL CONSIDER THE
SPECIAL CIRCUMSTANCES OF AN INCARCERATED PARENT  OR  PARENTS,  OR  OF  A
PARENT  OR PARENTS PARTICIPATING IN A RESIDENTIAL SUBSTANCE ABUSE TREAT-
MENT PROGRAM,  WHEN  DETERMINING  WHETHER  A  CHILD  IS  A  "PERMANENTLY
NEGLECTED  CHILD" AS DEFINED IN THIS PARAGRAPH. IN SUCH CASES, THE COURT
ALSO SHALL CONSIDER THE PARTICULAR CONSTRAINTS, INCLUDING BUT NOT LIMIT-
ED TO, LIMITATIONS PLACED ON FAMILY CONTACT AND  THE  UNAVAILABILITY  OF

S. 2233--A                          3                         A. 5462--A

SOCIAL  OR  REHABILITATIVE SERVICES TO AID IN THE DEVELOPMENT OF A MEAN-
INGFUL RELATIONSHIP BETWEEN THE PARENT AND HIS OR HER  CHILD,  THAT  MAY
IMPACT THE PARENT'S ABILITY TO SUBSTANTIALLY AND CONTINUOUSLY OR REPEAT-
EDLY  MAINTAIN  CONTACT WITH HIS OR HER CHILD AND TO PLAN FOR THE FUTURE
OF HIS OR HER CHILD AS DEFINED IN PARAGRAPH  (C)  OF  THIS  SUBDIVISION.
Where a court has previously determined in accordance with paragraph (b)
of  subdivision  three  of  section  three hundred fifty-eight-a of this
chapter or section one thousand thirty-nine-b, subparagraph (A) of para-
graph (i) of subdivision (b) of section one  thousand  fifty-two,  para-
graph  (b)  of  subdivision  two  of section seven hundred fifty-four or
paragraph (c) of subdivision two of section 352.2 of  the  family  court
act  that reasonable efforts to make it possible for the child to return
safely to his or her home are not required,  the  agency  shall  not  be
required  to demonstrate diligent efforts as defined in this section. In
the event that the parent defaults after due notice of a  proceeding  to
determine  such  neglect,  such  physical  and financial ability of such
parent may be presumed by the court.
  S 3. Subparagraph (i) of paragraph (e) of  subdivision  7  of  section
384-b  of the social services law, as amended by chapter 911 of the laws
of 1983, is amended to read as follows:
  (i) The parent has failed for a period of six months to keep the agen-
cy apprised of his or her location, PROVIDED THAT THE COURT MAY CONSIDER
THE PARTICULAR DELAYS OR BARRIERS AN INCARCERATED PARENT OR PARENTS,  OR
A  PARENT  OR  PARENTS  PARTICIPATING  IN  A RESIDENTIAL SUBSTANCE ABUSE
TREATMENT PROGRAM, MAY EXPERIENCE IN KEEPING THE AGENCY APPRISED OF  HIS
OR HER LOCATION; or
  S  4.  Subparagraphs  4  and  5  of  paragraph (f) of subdivision 7 of
section 384-b of the social services law, as amended by chapter  911  of
the laws of 1983,  are amended and a new subparagraph 6 is added to read
as follows:
  (4)  informing  the  parents  at  appropriate intervals of the child's
progress, development and health; [and]
  (5) making suitable arrangements  with  a  correctional  facility  and
other  appropriate persons for an incarcerated parent to visit the child
within the correctional facility, if such visiting is in the best inter-
ests of the child. When no visitation  between  child  and  incarcerated
parent  has  been  arranged  for  or  permitted by the authorized agency
because such visitation is determined not to be in the best interest  of
the  child,  then no permanent neglect proceeding under this subdivision
shall be initiated on the basis of the lack  of  such  visitation.  Such
arrangements shall include, but shall not be limited to, the transporta-
tion  of  the  child  to  the  correctional  facility,  and providing or
suggesting social or rehabilitative services to resolve or  correct  the
problems  other  than incarceration itself which impair the incarcerated
parent's ability to maintain contact with the child. When the parent  is
incarcerated  in  a correctional facility located outside the state, the
provisions of this subparagraph shall be construed to  require  that  an
authorized  agency make such arrangements with the correctional facility
only if reasonably feasible and permissible in accordance with the  laws
and regulations applicable to such facility[.]; AND
  (6)  PROVIDING  INFORMATION  WHICH  THE AUTHORIZED AGENCY SHALL OBTAIN
FROM THE OFFICE OF CHILDREN AND FAMILY  SERVICES,  OUTLINING  THE  LEGAL
RIGHTS  AND OBLIGATIONS OF A PARENT WHO IS INCARCERATED OR IN A RESIDEN-
TIAL SUBSTANCE ABUSE TREATMENT PROGRAM WHOSE CHILD IS IN CUSTODY  OF  AN
AUTHORIZED AGENCY, AND ON SOCIAL OR REHABILITATIVE SERVICES AVAILABLE IN
THE  COMMUNITY, INCLUDING FAMILY VISITING SERVICES, TO AID IN THE DEVEL-

S. 2233--A                          4                         A. 5462--A

OPMENT OF A MEANINGFUL RELATIONSHIP BETWEEN THE PARENT AND CHILD.  WHER-
EVER  POSSIBLE,  SUCH  INFORMATION SHALL INCLUDE TRANSITIONAL AND FAMILY
SUPPORT SERVICES LOCATED IN  THE  COMMUNITY  TO  WHICH  AN  INCARCERATED
PARENT  OR  PARENT PARTICIPATING IN A RESIDENTIAL SUBSTANCE ABUSE TREAT-
MENT PROGRAM SHALL RETURN.
  S 5. The opening paragraph of  subdivision  2  and  subdivision  3  of
section  409-e  of the social services law, as amended by chapter 437 of
the laws of 2006, are amended to read as follows:
  Upon completion of any assessment provided for in subdivision  one  of
this  section, and not later than thirty days after placement of a child
in foster care pursuant to article three or seven of  the  family  court
act  or  not later than thirty days after a child is removed from his or
her home, the local social services district shall establish  or  update
and  maintain  a family service plan based on the assessment required by
subdivision one of this section. The plan shall be prepared in consulta-
tion with the child's parent or guardian, unless such person is unavail-
able or unwilling to participate, or such participation would be harmful
to the child, and with the child if the child is ten  years  of  age  or
older, and, where appropriate, with the child's siblings. Such consulta-
tion  shall be done in person, unless such a meeting is impracticable or
would be harmful to the child.   IF IT IS  IMPRACTICABLE  TO  HOLD  SUCH
CONSULTATION IN PERSON, SUCH CONSULTATION MAY BE DONE THROUGH THE USE OF
TECHNOLOGY, INCLUDING BUT NOT LIMITED TO, VIDEOCONFERENCING AND TELECON-
FERENCE  TECHNOLOGY.    IF  THE  PARENT IS INCARCERATED OR RESIDING IN A
RESIDENTIAL DRUG TREATMENT FACILITY, THE PLAN SHALL REFLECT THE  SPECIAL
CIRCUMSTANCES  AND  NEEDS  OF  THE  CHILD AND THE FAMILY. The plan shall
include at least the following:
  3. The plan shall be reviewed and  revised,  in  accordance  with  the
procedures  and  standards  in subdivision two of this section, at least
within the first ninety days following the  date  the  child  was  first
considered  for  placement  in  foster  care, and, if the child has been
placed in foster care pursuant to article three or seven of  the  family
court  act or removed from his or her home, within the first ninety days
following the date of placement or removal. The plan  shall  be  further
reviewed  and  revised  not later than one hundred twenty days from this
initial review and at  least  every  six  months  thereafter;  provided,
however,  that  if a sibling or half-sibling of the child has previously
been considered for placement or removed from the home, the  plan  shall
be  further  reviewed  and  revised  on the schedule established for the
family based on the earliest of those events. Such revisions shall indi-
cate the types, dates and sources of services that  have  actually  been
provided  and  an  evaluation  of the efficacy of such services, and any
necessary or desirable revisions  in  goals  or  planned  services.  The
review  and  revision of the plan shall be prepared in consultation with
the child's parent or guardian, unless such  person  is  unavailable  or
unwilling  to participate, or such participation would be harmful to the
child, and with the child if the child is ten years  of  age  or  older,
and,  where  appropriate,  with  the child's siblings. Such consultation
shall be done in person, unless such a meeting is impracticable or would
be harmful to the child.  IF IT IS IMPRACTICABLE TO HOLD SUCH  CONSULTA-
TION  IN  PERSON, SUCH CONSULTATION MAY BE DONE THROUGH THE USE OF TECH-
NOLOGY, INCLUDING BUT NOT LIMITED TO, VIDEOCONFERENCING AND  TELECONFER-
ENCE TECHNOLOGY.
  S 6. This act shall take effect immediately.