S. 5461 2
aid society or a legal services or other nonprofit organization, which
has as its primary purpose the furnishing of legal services to indigent
persons, or by private counsel working on behalf of or under the
auspices of such society or organization, and, in the case of a counsel
assigned to an adult party, that the party continues to be indigent, the
party or child shall be presumed eligible for poor person relief pursu-
ant to this section.
S 2. Section 75-f of the domestic relations law, as added by chapter
386 of the laws of 2001, is amended to read as follows:
S 75-f. Priority. If a question of existence or exercise of jurisdic-
tion under this article is raised in a child custody proceeding, the
question, upon request of a party, child or [law guardian] CHILD'S
ATTORNEY must be given priority on the calendar and handled expeditious-
ly.
S 3. Subdivision 1 of section 76-f of the domestic relations law, as
added by chapter 386 of the laws of 2001, is amended to read as follows:
1. A court of this state which has jurisdiction under this article to
make a child custody determination may decline to exercise its jurisdic-
tion at any time if it determines that it is an inconvenient forum under
the circumstances and that a court of another state is a more appropri-
ate forum. The issue of inconvenient forum may be raised upon motion of
a party, the child or the [law guardian] CHILD'S ATTORNEY, or upon the
court's own motion, or request of another court.
S 4. Subdivisions 2 and 4 of section 112-b of the domestic relations
law, subdivision 2 as amended by chapter 437 of the laws of 2006 and
subdivision 4 as added by section 63 of part A of chapter 3 of the laws
of 2005, are amended to read as follows:
2. Agreements regarding communication or contact between an adoptive
child, adoptive parent or parents, and a birth parent or parents and/or
biological siblings or half-siblings of an adoptive child shall not be
legally enforceable unless the terms of the agreement are incorporated
into a written court order entered in accordance with the provisions of
this section. The court shall not incorporate an agreement regarding
communication or contact into an order unless the terms and conditions
of the agreement have been set forth in writing and consented to in
writing by the parties to the agreement, including the [law guardian]
ATTORNEY representing the adoptive child. The court shall not enter a
proposed order unless the court that approved the surrender of the child
determined and stated in its order that the communication with or
contact between the adoptive child, the prospective adoptive parent or
parents and a birth parent or parents and/or biological siblings or
half-siblings, as agreed upon and as set forth in the agreement, would
be in the adoptive child's best interests. Notwithstanding any other
provision of law, a copy of the order entered pursuant to this section
incorporating the post-adoption contact agreement shall be given to all
parties who have agreed to the terms and conditions of such order.
4. An order incorporating an agreement regarding communication or
contact entered under this section may be enforced by any party to the
agreement or the [law guardian] ATTORNEY FOR THE CHILD by filing a peti-
tion in the family court in the county where the adoption was approved.
Such petition shall have annexed to it a copy of the order approving the
agreement regarding communication or contact. The court shall not
enforce an order under this section unless it finds that the enforcement
is in the child's best interests.
S. 5461 3
S 5. Clauses (B) and (C) of subparagraph (ii) of paragraph (b) of
subdivision 3 of section 113 of the domestic relations law, as amended
by chapter 185 of the laws of 2006, are amended to read as follows:
(B) If the court determines that the child is under the jurisdiction
of a different family court, the court in which the adoption petition
was filed shall stay its proceeding for not more than thirty days and
shall communicate with the family court judge who exercised jurisdiction
over the most recent permanency or other proceeding involving the child.
The communication shall be recorded or summarized on the record by the
court in which the adoption petition was filed. Both courts shall notify
the parties and [law guardian] THE ATTORNEY FOR THE CHILD, if any, in
their respective proceedings and shall give them an opportunity to pres-
ent facts and legal argument or to participate in the communication
prior to the issuance of a decision on jurisdiction.
(C) The family court judge who exercised jurisdiction over the most
recent permanency or other proceeding involving the child shall deter-
mine whether he or she should assume or decline jurisdiction over the
adoption proceeding. In making its determination, the family court judge
shall consider, among other factors: the relative familiarity of each
court with the facts and circumstances regarding permanency planning
for, and the needs and best interests of, the child; the ability of the
[law guardian] ATTORNEY FOR THE CHILD to continue [to represent the
child] SUCH REPRESENTATION in the adoption proceeding, if appropriate;
the convenience of each court to the residence of the prospective adop-
tive parent or parents; and the relative ability of each court to hear
and determine the adoption petition expeditiously. The court in which
the adoption petition was filed shall issue an order incorporating this
determination of jurisdiction within thirty days of the filing of the
adoption petition.
S 6. Subparagraph (i) of paragraph (d) of subdivision 6 of section
115-b of the domestic relations law, as amended by chapter 817 of the
laws of 1986, is amended to read as follows:
(i) The court shall promptly notify, in writing, the parent, the adop-
tive parents, their respective attorneys, and the [law guardian] ATTOR-
NEY FOR THE CHILD appointed pursuant to section two hundred forty-nine
of the family court act or a guardian ad litem appointed pursuant to
section four hundred three-a of the surrogate's court procedure act,
that the court will, upon the date specified in such notice by the
court, or as soon thereafter as the parties may be heard pursuant to
this paragraph, hear and determine whether revocation of the consent of
the parent was timely and properly given and whether the adoptive
parent's notice of intent to oppose such revocation was timely and prop-
erly given and if necessary, hear and determine what disposition should
be made with respect to the custody of the child.
S 7. Subparagraph 2 of paragraph (a-1) of subdivision 1 of section 240
of the domestic relations law, as added by chapter 595 of the laws of
2008, is amended to read as follows:
(2) Notifying counsel and issuing orders. Upon consideration of deci-
sions pursuant to article ten of the family court act, and registry
reports and notifying counsel involved in the proceeding, or in the
event of a party appearing pro se, notifying such party of the results
thereof, including any court appointed [law guardian] ATTORNEY FOR THE
CHILD, the court may issue a temporary, successive temporary or final
order of custody or visitation.
S. 5461 4
S 8. Paragraph (c) of subdivision 1-c of section 240 of the domestic
relations law, as amended by chapter 378 of the laws of 1999, is amended
to read as follows:
(c) For the purpose of making a determination pursuant to clause (C)
of subparagraph (i) of paragraph (b) of this subdivision, the court
shall not be bound by the findings of fact, conclusions of law or ulti-
mate conclusion as determined by the proceedings leading to the
conviction of murder in the first or second degree in this state or of
an offense in another jurisdiction which, if committed in this state,
would constitute murder in either the first or second degree, of a
parent, legal guardian, legal custodian, sibling, half-sibling or step-
sibling of a child who is the subject of the proceeding. In all
proceedings under this section, [a law guardian] AN ATTORNEY shall be
appointed for the child.
S 9. Subdivision 1 of section 254 of the domestic relations law, as
added by chapter 236 of the laws of 2001, is amended to read as follows:
1. Notwithstanding any other provision of law, in any proceeding for
custody, divorce, separation or annulment, whether or not an order of
protection or temporary order of protection is sought or has been sought
in the past, the court may, upon its own motion or upon the motion of
any party or the [law guardian] ATTORNEY FOR THE CHILD, authorize any
party or the child to keep his or her address confidential from any
adverse party or the child, as appropriate, in any pleadings or other
papers submitted to the court, where the court finds that the disclosure
of the address or other identifying information would pose an unreason-
able risk to the health or safety of a party or the child. Pending such
a finding, any address or other identifying information of the child or
party seeking confidentiality shall be safeguarded and sealed in order
to prevent its inadvertent or unauthorized use or disclosure.
S 10. Subdivision 6 of section 503 of the executive law, as amended by
chapter 465 of the laws of 1992, is amended to read as follows:
6. The division shall be responsible for bringing violations of law
pertaining to detention of juveniles to the attention of each appropri-
ate [law guardian] ATTORNEY FOR THE CHILD or counsel for the defendant
who may petition for habeas corpus for persons aggrieved thereby.
S 11. Subdivision 4 of section 508 of the executive law, as added by
chapter 481 of the laws of 1978 and such section as renumbered by chap-
ter 465 of the laws of 1992, is amended to read as follows:
4. The division for youth may apply to the sentencing court for
permission to transfer a youth not less than sixteen nor more than eigh-
teen years of age to the department of correctional services. Such
application shall be made upon notice to the youth, who shall be enti-
tled to be heard upon the application and to be represented by counsel
[or law guardian]. The court shall grant the application if it is
satisfied that there is no substantial likelihood that the youth will
benefit from the programs offered by the division facilities.
S 12. Subdivision 7 of section 35 of the judiciary law, as added by
chapter 571 of the laws of 1989, is amended to read as follows:
7. Whenever the supreme court or a surrogate's court shall appoint
counsel in a proceeding over which the family court might have exercised
jurisdiction had such action or proceeding been commenced in family
court or referred thereto pursuant to law, and under circumstances
whereby, if such proceeding were pending in family court, such court
would be authorized by section two hundred forty-nine of the family
court act to appoint [a law guardian] AN ATTORNEY FOR THE CHILD, such
S. 5461 5
counsel shall be compensated in accordance with the provisions of this
section.
S 13. Paragraph (b) of subdivision 1 of section 35-a of the judiciary
law, as amended by chapter 834 of the laws of 1975, is amended to read
as follows:
(b) Paragraph (a) shall not apply to any compensation awarded to
appointees assigned to represent indigent persons pursuant to Article
18-B of the county law, counsel assigned pursuant to section thirty-five
of the judiciary law, [law guardians or] counsel appointed pursuant to
the family court act[, or referees appointed pursuant to section 78.25
of the mental hygiene law].
S 14. Subdivision (c) of section 154 of the family court act, as added
by chapter 441 of the laws of 1995, is amended to read as follows:
(c) In a proceeding arising under article four, five, six, eight or
ten of this act in which an order of protection is sought or in which a
violation of an order of protection is alleged, the court may send proc-
ess without the state in the same manner and with the same effect as
process sent within the state in the exercise of personal jurisdiction
over any person, subject to the jurisdiction of the court under section
three hundred one or three hundred two of the civil practice law and
rules, notwithstanding that such person is not a resident or domiciliary
of the state, so long as: (1) the act or acts giving rise to the appli-
cation for issuance or enforcement of the order of protection occurred
within the state; and (2) the applicant for the order of protection
resides or is domiciled in the state or has substantial contacts in the
state, including but not limited to, presence on a regular basis in the
state. Upon good cause shown, the court may issue a temporary order of
protection in accordance with article four, five, six, eight or ten of
this act. Where personal jurisdiction over a non-resident or non-domici-
liary respondent would not be obtainable but for this subdivision, the
papers to be served shall include a conspicuous notice that the exercise
of such jurisdiction is limited to the issue of the order of protection.
Where service of a petition and summons upon a non-resident or non-domi-
ciliary respondent is required, such service shall be made at least
twenty days before the return date. Where service is effected on an
out-of-state respondent and the respondent defaults by failing to
appear, the court may on its own motion, or upon application of any
party or the [law guardian] ATTORNEY FOR THE CHILD, proceed to a hearing
with respect to issuance or enforcement of the order of protection.
Nothing in this section shall be construed to affect or alter the exer-
cise of personal jurisdiction with respect to issues other than the
order of protection.
S 15. Paragraph (a) of subdivision 2 of section 154-b of the family
court act, as amended by chapter 236 of the laws of 2001, is amended to
read as follows:
(a) Notwithstanding any other provision of law, in any proceeding
under article four, five, five-b, six, eight or ten of this act, whether
or not an order of protection or temporary order of protection is sought
or has been sought in the past, the court may, upon its own motion or
upon the motion of any party or the [law guardian] CHILD'S ATTORNEY,
authorize any party or the child to keep his or her address confidential
from any adverse party or the child, as appropriate, in any pleadings or
other papers submitted to the court, where the court finds that disclo-
sure of such address or other identifying information would pose an
unreasonable risk to the health or safety of a party or the child. Pend-
ing such a finding, any address or other identifying information of the
S. 5461 6
child or party seeking confidentiality shall be safeguarded and sealed
in order to prevent its inadvertent or unauthorized use or disclosure.
S 16. Subdivision 2 of section 154-c of the family court act, as added
by chapter 186 of the laws of 1997, is amended to read as follows:
2. Modifications of orders of protection. Except as provided in subdi-
vision two of section one hundred fifty-four-d of this act, any motion
to vacate or modify any order of protection or temporary order of
protection issued under this act shall be on notice to the non-moving
party and the [law guardian] CHILD'S ATTORNEY, if any.
S 17. The article heading and the part heading of part 4 of article 2
and section 241 of the family court act, section 241 as amended by chap-
ter 476 of the laws of 1988, are amended to read as follows:
ADMINISTRATION, MEDICAL EXAMINATIONS, [LAW GUARDIANS]
ATTORNEYS FOR CHILDREN,
AUXILIARY SERVICES
[Law guardians] ATTORNEYS FOR CHILDREN
S 241. Findings and purpose. This act declares that minors who are the
subject of family court proceedings or appeals in proceedings originat-
ing in the family court should be represented by counsel of their own
choosing or by [law guardians] ASSIGNED COUNSEL. This declaration is
based on a finding that counsel is often indispensable to a practical
realization of due process of law and may be helpful in making reasoned
determinations of fact and proper orders of disposition. This part
establishes a system of [law guardians] ATTORNEYS for [minors] CHILDREN
who often require the assistance of counsel to help protect their inter-
ests and to help them express their wishes to the court. Nothing in this
act is intended to preclude any other interested person from appearing
by counsel.
S 18. Section 242 of the family court act, as amended by chapter 962
of the laws of 1970, is amended to read as follows:
S 242. [Law guardian] ATTORNEY FOR THE CHILD. As used in this act,
"[law guardian] ATTORNEY FOR THE CHILD" refers to an attorney admitted
to practice law in the state of New York and designated under this part
to represent minors pursuant to section two hundred [and] forty-nine of
this act.
S 19. Section 243 of the family court act, as amended by chapter 443
of the laws of 1995, is amended to read as follows:
S 243. Designation. (a) The office of court administration may enter
into an agreement with a legal aid society for the society to provide
[law guardians for] ATTORNEYS TO REPRESENT CHILDREN IN the family court
or appeals in proceedings originating in the family court in a county
having a legal aid society.
(b) The appellate division of the supreme court for the judicial
department in which a county is located may, upon determining that a
county panel designated pursuant to subdivision (c) of this section is
not sufficient to afford appropriate [law guardian services] SERVICES OF
ATTORNEYS FOR CHILDREN, enter into an agreement, subject to regulations
as may be promulgated by the administrative board of the courts, with
any qualified attorney or attorneys to serve as [law guardian or as law
guardians] ATTORNEYS FOR CHILDREN for the family court or appeals in
proceedings originating in the family court in that county.
(c) The appellate division of the supreme court for the judicial
department in which a county is located may designate a panel of [law
guardians] ATTORNEYS FOR CHILDREN for the family court and appeals in
proceedings originating in the family court in that county, subject to
the approval of the administrative board of the courts. For this
S. 5461 7
purpose, it may invite a bar association to recommend qualified persons
for consideration by the [said] appellate division in making its desig-
nation, subject to standards as may be promulgated by such administra-
tive board.
S 20. Subdivision (b) of section 244 of the family court act, as
added by chapter 833 of the laws of 1974, is amended to read as follows:
(b) No designations pursuant to subdivision (c) of [such] section two
hundred forty-three may be for a term of more than one year, but succes-
sive designations may be made. The appellate division proceeding pursu-
ant to [such] subdivision (c) OF SECTION TWO HUNDRED FORTY-THREE, may at
any time increase or decrease the number of [law guardians] ATTORNEYS
FOR CHILDREN designated in any county and may rescind any designation at
any time, subject to the approval of the office of court administration.
S 21. Section 245 of the family court act, as amended by chapter 443
of the laws of 1995, is amended to read as follows:
S 245. Compensation. (a) If the office of court administration
proceeds pursuant to subdivision (a) of section two hundred forty-three
of this chapter, the agreement shall provide that the society shall be
reimbursed on a cost basis for services rendered under the agreement.
The agreement shall contain a general plan for the organization and
operation of the [providing] PROGRAM FOR THE PROVISION of [law guardi-
ans] ATTORNEYS FOR CHILDREN by the respective legal aid society,
approved by the [said] administrative board, and the office of court
administration may require such reports as it deems necessary from the
society.
(b) If an appellate division proceeds pursuant to subdivision (b) of
such section two hundred forty-three, the agreement may provide that the
attorney or attorneys shall be reimbursed on a cost basis for services
rendered under the agreement. The agreement shall contain a general plan
for the organization and operation of the [providing] PROGRAM FOR THE
PROVISION of [law guardians] ATTORNEYS FOR CHILDREN by the respective
attorney or attorneys, and the appellate division may require such
reports as it deems necessary from the attorney or attorneys.
(c) If an appellate division proceeds pursuant to subdivision (c) of
such section two hundred forty-three, [law guardians] ATTORNEYS FOR
CHILDREN shall be compensated and allowed expenses and disbursements in
the same amounts established by subdivision three of section thirty-five
of the judiciary law.
S 22. Section 248 of the family court act, as amended by chapter 833
of the laws of 1974, is amended to read as follows:
S 248. Appropriations. The costs of [law guardians] ATTORNEYS FOR
CHILDREN under section two hundred forty-five shall be payable by the
state of New York within the amounts appropriated therefor.
S 23. Section 249 of the family court act, as amended by chapter 76 of
the laws of 2002, subdivision (a) as amended by section 2 of part A of
chapter 3 of the laws of 2005, is amended to read as follows:
S 249. Appointment of [law guardian] ATTORNEY FOR CHILD. (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 of the social
services law or when a minor is sought to be placed in protective custo-
dy under section one hundred fifty-eight of this act, the family court
shall appoint [a law guardian] AN ATTORNEY to represent a minor who is
the subject of the proceeding or who is sought to be placed in protec-
S. 5461 8
tive 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 disa-
bilities 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 [a law guardian] ASSIGNED
COUNSEL. In any other proceeding in which the court has jurisdiction,
the court may appoint [a law guardian] AN ATTORNEY to represent the
child, when, in the opinion of the family court judge, such represen-
tation 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.
(b) In making an appointment of [a law guardian] AN ATTORNEY FOR A
CHILD pursuant to this section, the court shall, to the extent practica-
ble and appropriate, appoint the same [law guardian] ATTORNEY who has
previously represented the child. Notwithstanding any other provision
of law, in a proceeding under article three OF THIS ACT following an
order of removal made pursuant to article seven hundred twenty-five of
the criminal procedure law, the court shall, wherever practicable,
appoint the SAME counsel [representing] WHO REPRESENTED the juvenile
offender in the criminal proceedings [as law guardian].
S 24. Section 249-a of the family court act, as added by chapter 513
of the laws of 1978, is amended to read as follows:
S 249-a. Waiver of counsel. A minor who is a subject of a juvenile
delinquency or person in need of supervision proceeding shall be
presumed to lack the requisite knowledge and maturity to waive the
appointment of [a law guardian] AN ATTORNEY. This presumption may be
rebutted only after [a law guardian] AN ATTORNEY has been appointed and
the court determines after a hearing at which the [law guardian] ATTOR-
NEY appears and participates and upon clear and convincing evidence that
(a) the minor understands the nature of the charges, the possible dispo-
sitional alternatives and the possible defenses to the charges, (b) the
minor possesses the maturity, knowledge and intelligence necessary to
conduct his OR HER own defense, and (c) waiver is in the best interest
of the minor.
S 25. Section 249-b of the family court act, as added by chapter 626
of the laws of 2007, is amended to read as follows:
S 249-b. Rules of court. The chief administrator of the courts, pursu-
ant to paragraph (e) of subdivision two of section two hundred twelve of
the judiciary law, shall promulgate court rules prescribing workload
standards for attorneys for children, including maximum numbers of chil-
dren who can be represented at any given time, in order to ensure that
children receive effective assistance of counsel comporting with legal
and ethical mandates, the complexity of the proceedings affecting each
client to which the [law guardian] ATTORNEY is assigned, and the nature
of the court appearance likely to be required for each individual
client. Appointments of attorneys for children under section two
hundred forty-nine of this part shall be in conformity with the rules.
S 26. Subdivision (b) of section 251 of the family court act, as
amended by chapter 296 of the laws of 1993, is amended to read as
follows:
S. 5461 9
(b) Except for examinations conducted pursuant to section 322.1 of
this act where the family court determines that an inpatient examination
is necessary, or those ordered after a fact-finding hearing has been
completed under article three or seven of this act and the court deter-
mines according to the criteria in subdivision three of section 320.5 or
subdivision (a) of section seven hundred thirty-nine of this act that
the child should be detained pending disposition, or unless otherwise
consented to by the adult to be examined or by the [law guardian] ATTOR-
NEY representing the respondent, all examinations pursuant to this
section shall be conducted on an outpatient basis. An order for remand
after a fact-finding hearing under article three or seven of this act
shall include findings on the record supporting the need for examination
in a residential facility and a determination that it is the most appro-
priate facility. Remands for examinations shall be for a period deter-
mined by the facility, which shall not exceed thirty days, except that,
upon motion by the person detained on its own motion, the court may, for
good cause shown, terminate the remand at any time.
S 27. Subdivision 2 of section 301.2 of the family court act, as added
by chapter 920 of the laws of 1982, is amended to read as follows:
2. "Respondent" means the person against whom a juvenile delinquency
petition is filed pursuant to section 310.1. Provided, however, that any
act of the respondent required or authorized under this article may be
performed by his OR HER attorney [or law guardian] unless expressly
provided otherwise.
S 28. Subdivision 3 of section 306.2 of the family court act, as added
by chapter 920 of the laws of 1982, is amended to read as follows:
3. Upon receipt of a report of the division of criminal justice
services pursuant to this section, the recipient office or agency must
promptly transmit two copies of such report to the family court in which
the proceeding may be originated and two copies thereof to the present-
ment agency who shall furnish a copy thereof to counsel for the respond-
ent [or to the respondent's law guardian].
S 29. Subdivision 2 of section 307.4 of the family court act, as added
by chapter 920 of the laws of 1982, is amended to read as follows:
2. At such hearing the court must appoint [a law guardian] AN ATTORNEY
to represent the child pursuant to the provisions of section two hundred
forty-nine if independent legal representation is not available to such
child.
S 30. Subdivisions 2, 3, and 4 of section 320.2 of the family court
act, subdivisions 2 and 3 as added by chapter 920 of the laws of 1982
and subdivision 4 as amended by chapter 663 of the laws of 1985, are
amended to read as follows:
2. At the initial appearance the court must appoint [a law guardian]
AN ATTORNEY to represent the respondent pursuant to the provisions of
section two hundred forty-nine if independent legal representation is
not available to such respondent.
3. The initial appearance may be adjourned for no longer than seven-
ty-two hours or until the next court day, whichever is sooner, to enable
an appointed [law guardian or other counsel] ATTORNEY to appear before
the court.
4. The clerk of the court shall notify the presentment agency and any
appointed [law guardian] ATTORNEY of the initial appearance date.
S 31. Section 320.3 of the family court act, as added by chapter 920
of the laws of 1982, is amended to read as follows:
S 320.3. Notice of rights. At the time the respondent first appears
before the court, the respondent and his OR HER parent or other person
S. 5461 10
legally responsible for his OR HER care shall be advised of the respond-
ent's right to remain silent and of his OR HER right to be represented
by counsel chosen by him OR HER or by [a law guardian] AN ATTORNEY
assigned by the court. Provided, however, that in the event of the fail-
ure of the respondent's parent or other person legally responsible for
his care to appear, after reasonable and substantial effort has been
made to notify such parent or responsible person of the commencement of
the proceeding and such initial appearance, the court shall appoint [a
law guardian] AN ATTORNEY for the respondent.
S 32. Subdivision 1 of section 320.4 of the family court act, as added
by chapter 920 of the laws of 1982, is amended to read as follows:
1. At the initial appearance the court must inform the respondent, or
cause him to be informed in its presence, of the charge or charges
contained in the petition, and the presentment agency must cause the
respondent and his OR HER counsel [or law guardian] to be furnished with
a copy of the petition.
S 33. Subdivision 1 and paragraphs (a) and (d) of subdivision 5 of
section 322.2 of the family court act, subdivision 1 as added by chapter
920 of the laws of 1982, paragraphs (a) and (d) of subdivision 5 as
amended by chapter 789 of the laws of 1985, are amended to read as
follows:
1. Upon the receipt of examination reports ordered under section
322.1, the court shall conduct a hearing to determine whether the
respondent is an incapacitated person. The respondent, the counsel [or
law guardian] for the respondent, the presentment agency and the commis-
sioner of mental health or the commissioner of mental retardation and
developmental disabilities, as appropriate, shall be notified of such
hearing at least five days prior to the date thereof and afforded an
opportunity to be heard.
(a) If the court finds that there is probable cause to believe that
the respondent committed a felony, it shall order the respondent commit-
ted to the custody of the commissioner of mental health or the commis-
sioner of mental retardation and developmental disabilities for an
initial period not to exceed one year from the date of such order. Such
period may be extended annually upon further application to the court by
the commissioner having custody or his OR HER designee. Such application
must be made not more than sixty days prior to the expiration of such
period on forms that have been prescribed by the chief administrator of
the courts. At that time, the commissioner must give written notice of
the application to the respondent, the counsel [or law guardian] repres-
enting the respondent and the mental hygiene legal service if the
respondent is at a residential facility. Upon receipt of such applica-
tion, the court must conduct a hearing to determine the issue of capaci-
ty. If, at the conclusion of a hearing conducted pursuant to this subdi-
vision, the court finds that the respondent is no longer incapacitated,
he OR SHE shall be returned to the family court for further proceedings
pursuant to this article. If the court is satisfied that the respondent
continues to be incapacitated, the court shall authorize continued
custody of the respondent by the commissioner for a period not to exceed
one year. Such extensions shall not continue beyond a reasonable period
of time necessary to determine whether the respondent will attain the
capacity to proceed to a fact finding hearing in the foreseeable future
but in no event shall continue beyond the respondent's eighteenth birth-
day.
(d) The commissioner shall review the condition of the respondent
within forty-five days after the respondent is committed to the custody
S. 5461 11
of the commissioner. He OR SHE shall make a second review within ninety
days after the respondent is committed to his OR HER custody. Thereaft-
er, he OR SHE shall review the condition of the respondent every ninety
days. The respondent and the counsel [or law guardian] for the respond-
ent, shall be notified of any such review and afforded an opportunity to
be heard. The commissioner having custody shall apply to the court for
an order dismissing the petition whenever he OR SHE determines that
there is a substantial probability that the respondent will continue to
be incapacitated for the foreseeable future. At the time of such appli-
cation the commissioner must give written notice of THE application to
the respondent, the presentment agency and the mental hygiene legal
service if the respondent is at a residential facility. Upon receipt of
such application, the court may on its own motion conduct a hearing to
determine whether there is substantial probability that the respondent
will continue to be incapacitated for the foreseeable future, and it
must conduct such hearing if a demand therefor is made by the respondent
or the mental hygiene legal service within ten days from the date that
notice of THE application was given to them. The respondent may apply to
the court for an order of dismissal on the same ground.
S 34. Subdivisions 2 and 3 and paragraph (b) of subdivision 7 of
section 330.1 of the family court act, as added by chapter 398 of the
laws of 1983, are amended to read as follows:
2. Bill of particulars upon request. Upon a timely request for a bill
of particulars by a respondent against whom a petition is pending, the
presentment agency shall within fifteen days of the service of the
request or as soon thereafter as is practicable, serve upon the respond-
ent or his OR HER attorney [or law guardian] and file with the court,
the bill of particulars, except to the extent the presentment agency
shall have refused to comply with the request pursuant to subdivision
four of this section. If the respondent is detained, the court shall
direct the filing of the bill of particulars on an expedited basis and
prior to the commencement of the fact-finding hearing.
3. Timeliness of request. A request for a bill of particulars shall be
timely if made within thirty days after the conclusion of the initial
appearance and before commencement of the fact-finding hearing. If the
respondent is not represented by counsel [or a law guardian], and has
requested an adjournment to retain counsel or to have [a law guardian]
COUNSEL appointed, the thirty-day period shall commence, for the
purposes of a request for a bill of particulars by the respondent, on
the date counsel [or a law guardian] initially appeared on respondent's
behalf. However, the court may direct compliance with a request for a
bill of particulars that, for good cause shown, could not have been made
within the time specified.
(b) An order limiting, conditioning, delaying or regulating the bill
of particulars may, among other things, require that any material copied
or derived therefrom be maintained in the exclusive possession of the
attorney [or law guardian] for the respondent and be used for the exclu-
sive purpose of preparing for the defense of the juvenile delinquency
proceeding.
S 35. Subdivision 2 of section 331.1 of the family court act, as added
by chapter 920 of the laws of 1982, is amended to read as follows:
2. "Attorneys' work product" means property to the extent that it
contains the opinions, theories or conclusions of the presentment agen-
cy[, law guardian], counsel for the respondent or members of their
staffs.
S. 5461 12
S 36. Subdivision 1 of section 332.2 of the family court act, as
amended by chapter 398 of the laws of 1983, is amended to read as
follows:
1. Except as otherwise expressly provided in this article, all pre-
trial motions shall be filed within thirty days after the conclusion of
the initial appearance and before commencement of the fact-finding hear-
ing, or within such additional times as the court may fix upon applica-
tion of the respondent made prior to entering a finding pursuant to
section 345.1. If the respondent is not represented by counsel [or a law
guardian] and has requested an adjournment to retain counsel or to have
[a law guardian] COUNSEL appointed, such thirty-day period shall
commence on the date counsel [or a law guardian] initially appears on
the respondent's behalf. A motion made pursuant to subdivision eight of
section 332.1 must be made prior to the commencement of a fact-finding
hearing or the entry of an admission.
S 37. Section 341.2 of the family court act, as added by chapter 920
of the laws of 1982, is amended to read as follows:
S 341.2. Presence of respondent and his OR HER parent. 1. The respond-
ent and his OR HER counsel [or law guardian] shall be personally present
at any hearing under this article and at the initial appearance.
2. If a respondent conducts himself OR HERSELF in so disorderly and
disruptive a manner that the hearing cannot be carried on with [him] THE
RESPONDENT in the courtroom, the court may order a recess for the
purpose of enabling [his] THE RESPONDENT'S parent or other person
responsible for his OR HER care and [his law guardian or] THE RESPOND-
ENT'S counsel to exercise full efforts to assist the respondent to
conduct himself OR HERSELF so as to permit the proceedings to resume in
an orderly manner. If such efforts fail, the respondent may be removed
from the courtroom if, after he OR SHE is warned by the court that he OR
SHE will be removed, he OR SHE continues such disorderly and disruptive
conduct. Such time shall not extend beyond the minimum period necessary
to restore order.
3. The respondent's parent or other person responsible for his OR HER
care shall be present at any hearing under this article and at the
initial appearance. However, the court shall not be prevented from
proceeding by the absence of such parent or person if reasonable and
substantial effort has been made to notify such parent or other person
and if the respondent and his [law guardian] or HER counsel are present.
S 38. Subdivision 4 and the opening paragraph of subdivision 7 of
section 353.3 of the family court act, subdivision 4 as amended by chap-
ter 465 of the laws of 1992, the opening paragraph of subdivision 7 as
amended by chapter 181 of the laws of 2000, are amended to read as
follows:
4. Where the respondent is placed with the division for youth, the
court may direct the division to place the respondent with an authorized
agency or class of authorized agencies and in the event the division is
unable to so place the respondent or, discontinues the placement with
the authorized agency, the respondent shall be deemed to have been
placed with the division pursuant to paragraph (b) or (c) of subdivision
three of this section. In such cases, the division shall notify the
court, presentment agency, [law guardian] RESPONDENT'S ATTORNEY and
parent or other person responsible for the respondent's care, of the
reason for discontinuing the placement with the authorized agency and
the level and location of the youth's placement.
The place in which or the person with whom the respondent has been
placed under this section shall submit a report to the court, [law guar-
S. 5461 13
dian or] RESPONDENT'S attorney of record, and presentment agency at the
conclusion of the placement period, except as provided in paragraphs (a)
and (b) of this subdivision. Such report shall include recommendations
and such supporting data as is appropriate. The court may extend a
placement pursuant to section 355.3 of this article.
S 39. Section 354.2 of the family court act, as added by chapter 920
of the laws of 1982, is amended to read as follows:
S 354.2. Duties of counsel [or law guardian]. 1. If the court has
entered a dispositional order pursuant to section 352.2, it shall be the
duty of the respondent's counsel [or law guardian] to promptly advise
such respondent and his OR HER parent or other person responsible for
his OR HER care in writing of [his] THE right to appeal to the appropri-
ate appellate division of the supreme court, the time limitations
involved, the manner of instituting an [apppeal] APPEAL and obtaining a
transcript of the testimony and the right to apply for leave to appeal
as a poor person if he OR SHE is unable to pay the cost of an appeal. It
shall be the further duty of such counsel [or law guardian] to explain
to the respondent and his OR HER parent or person responsible for his OR
HER care the procedures for instituting an appeal, the possible reasons
upon which an appeal may be based and the nature and possible conse-
quences of the appellate process.
2. It shall also be the duty of such counsel [or law guardian] to
ascertain whether the respondent wishes to appeal and, if so, to serve
and file the necessary notice of appeal.
3. If the respondent has been permitted to waive the appointment of [a
law guardian] COUNSEL pursuant to section two hundred forty-nine-a, it
shall be the duty of the court to provide the notice and explanation
pursuant to subdivision one and, if the respondent indicates that he OR
SHE wishes to appeal, the clerk of the court shall file and serve the
notice of appeal.
S 40. Subdivision 3 of section 365.3 of the family court act, as added
by chapter 920 of the laws of 1982, is amended to read as follows:
3. If the presentment agency is the appellant, it must serve a copy of
such notice of appeal upon the respondent and upon the attorney [or law
guardian] who last appeared for him OR HER in the family court.
S 41. Subdivision 1 of section 375.1 of the family court act, as
amended by chapter 645 of the laws of 1996, is amended to read as
follows:
1. Upon termination of a delinquency proceeding against a respondent
in favor of such respondent, unless the presentment agency upon written
motion with not less than eight days notice to such respondent demon-
strates to the satisfaction of the court that the interests of justice
require otherwise or the court on its own motion with not less than
eight days notice to such respondent determines that the interest of
justice require otherwise and states the reason for such determination
on the record, the clerk of the court shall immediately notify the [law
guardian or] counsel for the child, the director of the appropriate
presentment agency, and the heads of the appropriate probation depart-
ment and police department or other law enforcement agency, that the
proceeding has terminated in favor of the respondent and, unless the
court has directed otherwise, that the records of such action or
proceeding, other than those destroyed pursuant to section 354.1 of this
act, shall be sealed. Upon receipt of such notification all official
records and papers, including judgments and orders of the court, but not
including public court decisions or opinions or records and briefs on
appeal, relating to the arrest, the prosecution and the probation
S. 5461 14
service proceedings, including all duplicates or copies thereof, on file
with the court, police agency, probation service and presentment agency
shall be sealed and not made available to any person or public or
private agency. Such records shall remain sealed during the pendency of
any motion made pursuant to this subdivision.
S 42. Subdivision (c) of section 435 of the family court act, as
amended by chapter 81 of the laws of 2003, is amended to read as
follows:
(c) Reports prepared by the probation service for use by the court at
any time prior to the making of an order of disposition shall be deemed
confidential information furnished to the court which the court in a
proper case may, in its discretion, withhold from or disclose in whole
or in part to the support magistrate, [law guardian] CHILD'S ATTORNEY,
counsel, party in interest, or other appropriate person. Such reports
may not be made available to the court prior to a determination that the
respondent is liable under this article for the support of the petition-
er.
S 43. Subdivision (b) of section 625 of the family court act, as
amended by chapter 666 of the laws of 1976, is amended to read as
follows:
(b) Reports prepared by the probation service or a duly authorized
agency for use by the court prior to the making of an order of disposi-
tion shall be deemed confidential information furnished to the court
which the court in a proper case may, in its discretion, withhold from
or disclose in whole or in part to the [law guardian] CHILD'S ATTORNEY,
counsel, party in interest, or other appropriate person. Such reports
may not be furnished to the court prior to the completion of a fact-
finding hearing, but may be used in a dispositional hearing or in the
making of an order of disposition without a dispositional hearing pursu-
ant to subdivision (a) of this section.
S 44. Subdivision (d) of section 633 of the family court act, as added
by section 7 of part A of chapter 3 of the laws of 2005, is amended to
read as follows:
(d) Not later than sixty days before the expiration of the period of
suspended judgment, the petitioner shall file a report with the family
court and all parties, including the respondent and his or her attorney,
the [law guardian] CHILD'S ATTORNEY and intervenors, if any, regarding
the respondent's compliance with the terms of suspended judgment. The
report shall be reviewed by the court on the scheduled court date.
Unless a motion or order to show cause has been filed prior to the expi-
ration of the period of suspended judgment alleging a violation or seek-
ing an extension of the period of the suspended judgment, the terms of
the disposition of suspended judgment shall be deemed satisfied and an
order committing the guardianship and custody of the child shall not be
entered.
S 45. Subdivision (d) and paragraph 2 of subdivision (e) of section
651 of the family court act, subdivision (d) as amended by chapter 657
of the laws of 2003, paragraph 2 of subdivision (e) as added by chapter
595 of the laws of 2008, are amended to read as follows:
(d) With respect to applications by a grandparent or grandparents for
visitation or custody rights, made pursuant to section seventy-two or
two hundred forty of the domestic relations law, with a child remanded
or placed in the care of a person, official, agency or institution
pursuant to the provisions of article ten of this act, the applicant, in
such manner as the court shall prescribe, shall serve a copy of the
application upon the social services official having care and custody of
S. 5461 15
such child, and the child's [law guardian] ATTORNEY, who shall be
afforded an opportunity to be heard thereon.
2. Notifying counsel and issuing orders. Upon consideration of deci-
sions pursuant to article ten of this act, and registry reports and
notifying counsel involved in the proceeding, or in the event of a party
appearing pro se, notifying such party of the results thereof, including
any court appointed [law guardian] ATTORNEY FOR THE CHILD, the court may
issue a temporary, successive temporary or final order of custody or
visitation.
S 46. Subdivision (a) of section 728 of the family court act is
amended to read as follows:
(a) If a child in custody is brought before a judge of the family
court before a petition is filed, the judge shall hold a hearing for the
purpose of making a preliminary determination of whether the court
appears to have jurisdiction over the child. At the commencement of the
hearing, the judge shall advise the child of his OR HER right to remain
silent, his OR HER right to be represented by counsel of his OR HER own
choosing, and of [his] THE right to have [a law guardian] AN ATTORNEY
assigned in accord with part four of article two of this act. [He] THE
JUDGE must also allow the child a reasonable time to send for his OR HER
parents or other person OR PERSONS legally responsible for his OR HER
care, and for counsel, and adjourn the hearing for that purpose.
S 47. Subdivisions (a) and (c) of section 741 of the family court act,
subdivision (a) as amended and subdivision (c) as added by chapter 837
of the laws of 1975, are amended to read as follows:
(a) At the initial appearance of a respondent in a proceeding and at
the commencement of any hearing under this article, the respondent and
his OR HER parent or other person legally responsible for his OR HER
care shall be advised of the respondent's right to remain silent and of
[his] THE RESPONDENT'S right to be represented by counsel chosen by him
OR HER or his OR HER parent or other person legally responsible for his
OR HER care, or by [a law guardian] AN ATTORNEY assigned by the court
under part four of article two. Provided, however, that in the event of
the failure of the respondent's parent or other person legally responsi-
ble for his OR HER care to appear, after reasonable and substantial
effort has been made to notify such parent or responsible person of the
commencement of the proceeding and such initial appearance, the court
shall appoint [a law guardian] AN ATTORNEY FOR THE RESPONDENT and shall,
unless inappropriate also appoint a guardian ad litem for such respond-
ent, and in such event, shall inform the respondent of such rights in
the presence of such [law guardian] ATTORNEY and any guardian ad litem.
(c) At any hearing under this article, the court shall not be
prevented from proceeding by the absence of the respondent's parent or
other person responsible for his OR HER care if reasonable and substan-
tial effort has been made to notify such parent or responsible person of
the occurrence of the hearing and if the respondent and his [law guardi-
an] OR HER ATTORNEY are present. The court shall, unless inappropriate,
also appoint a guardian ad litem who shall be present at such hearing
and any subsequent hearing.
S 48. Subdivision 2 of section 750 of the family court act, as amended
by chapter 106 of the laws of 1987, is amended to read as follows:
2. After the completion of the fact-finding hearing and the making of
the required findings and prior to the dispositional hearing, the
reports or memoranda prepared or obtained by the probation service and
furnished to the court shall be made available by the court for examina-
tion and copying by the child's [law guardian or] counsel or by the
S. 5461 16
respondent if he OR SHE is not represented by [a law guardian or other]
counsel. All diagnostic assessments and probation investigation reports
shall be submitted to the court at least five court days prior to the
commencement of the dispositional hearing. In its discretion the court
may except from disclosure a part or parts of the reports or memoranda
which are not relevant to a proper disposition, or sources of informa-
tion which have been obtained on a promise of confidentiality, or any
other portion thereof, disclosure of which would not be in the interest
of justice. In all cases where a part or parts of the reports or memo-
randa are not disclosed, the court shall state for the record that a
part or parts of the reports or memoranda have been excepted and the
reasons for its action. The action of the court excepting information
from disclosure shall be subject to review on any appeal from the order
of disposition. If such reports or memoranda are made available to THE
respondent or his [law guardian] or HER counsel, they shall also be made
available to the counsel presenting the petition pursuant to section two
hundred fifty-four and, in the court's discretion, to any other attorney
representing the petitioner.
S 49. Section 760 of the family court act, as added by chapter 9 of
the laws of 1989, is amended to read as follows:
S 760. Duties of counsel [or law guardian]. 1. If the court has
entered a dispositional order pursuant to section seven hundred fifty-
four, it shall be the duty of the respondent's counsel [or law guardian]
to promptly advise such respondent and if his OR HER parent or other
person responsible for his OR HER care is not the petitioner, such
parent or other person responsible for his OR HER care, in writing of
[his] THE right to appeal to the appropriate appellate division of the
supreme court, the time limitations involved, the manner of instituting
an appeal and obtaining a transcript of the testimony and the right to
apply for leave to appeal as a poor person if he OR SHE is unable to pay
the cost of an appeal. It shall be the further duty of such counsel [or
law guardian] to explain to the respondent and if his OR HER parent or
other person responsible for his OR HER care is not the petitioner, such
parent or person responsible for his OR HER care, the procedures for
instituting an appeal, the possible reasons upon which an appeal may be
based and the nature and possible consequences of the appellate process.
2. It shall also be the duty of such counsel [or law guardian] to
ascertain whether the respondent wishes to appeal and, if so, to serve
and file the necessary notice of appeal.
3. If the respondent has been permitted to waive the appointment of [a
law guardian] COUNSEL pursuant to section two hundred forty-nine-a, it
shall be the duty of the court to provide the notice and explanation
pursuant to subdivision one and, if the respondent indicates that he OR
SHE wishes to appeal, the clerk of the court shall file and serve the
notice of appeal.
S 50. Subdivision (b) of section 835 of the family court act, as
amended by chapter 529 of the laws of 1963, is amended to read as
follows:
(b) Reports prepared by the probation service for use by the court at
any time prior to the making of an order of disposition shall be deemed
confidential information furnished to the court which the court in a
proper case may, in its discretion, withhold from or disclose in whole
or in part to the [law guardian] CHILD'S ATTORNEY, counsel, party in
interest, or other appropriate person. Such reports may not be furnished
to the court prior to the completion of a fact-finding hearing, but may
be used in a dispositional hearing.
S. 5461 17
S 51. Section 1016 of the family court act, as added by chapter 319 of
the laws of 1990, the second undesignated paragraph as amended by
section 9 of part A of chapter 3 of the laws of 2005, the fourth undes-
ignated paragraph as added by chapter 560 of the laws of 1990, is
amended to read as follows:
S 1016. Appointment of [law guardian] ATTORNEY FOR THE CHILD. The
court shall appoint [a law guardian] AN ATTORNEY to represent a child
who has been allegedly abused or neglected upon the earliest occurrence
of any of the following: (i) the court receiving notice, pursuant to
paragraph (iv) of subdivision (b) of section [ten hundred] ONE THOUSAND
twenty-four of this act, of the emergency removal of the child; (ii) an
application for an order for removal of the child prior to the filing of
a petition, pursuant to section one thousand twenty-two of this act; or
(iii) the filing of a petition alleging abuse or neglect pursuant to
this article.
Whenever [a law guardian] AN ATTORNEY has been appointed by the family
court pursuant to section two hundred forty-nine of this act to repre-
sent a child in a proceeding under this article, such appointment shall
continue without further court order or appointment during (i) an order
of disposition issued by the court pursuant to section one thousand
fifty-two of this article directing supervision, protection or suspend-
ing judgment, or any extension thereof; (ii) an adjournment in contem-
plation of dismissal as provided for in section one thousand thirty-nine
of this article or any extension thereof; or (iii) the pendency of the
foster care placement ordered pursuant to section one thousand fifty-two
of this article. All notices and reports required by law shall be
provided to such [law guardian] ATTORNEY FOR THE CHILD. Such appoint-
ment shall terminate upon the expiration of such order, unless another
appointment of [a law guardian] AN ATTORNEY FOR THE CHILD has been made
by the court or unless such [law guardian] ATTORNEY makes application to
the court to be relieved of his or her appointment. Upon approval of
such application to be relieved, the court shall immediately appoint
another [law guardian] ATTORNEY FOR THE CHILD to whom all notices and
reports required by law shall be provided.
[A law guardian] THE ATTORNEY FOR THE CHILD shall be entitled to
compensation pursuant to applicable provisions of law for services
rendered up to and including disposition of the petition. The [law guar-
dian] ATTORNEY FOR THE CHILD shall, by separate application, be entitled
to compensation for services rendered subsequent to the disposition of
the petition.
Nothing in this section shall be construed to limit the authority of
the court to remove [a law guardian] THE ATTORNEY FOR THE CHILD from his
or her assignment.
S 52. Paragraphs (ii) and (iii) of subdivision (a) of section 1027 of
the family court act, as amended by section 15 of part A of chapter 3 of
the laws of 2005, are amended to read as follows:
(ii) In any such case where the child has been removed, any person
originating a proceeding under this article shall, or the [law guardian]
ATTORNEY FOR THE CHILD may apply for, or the court on its own motion may
order, a hearing at any time after the petition is filed to determine
whether the child's interests require protection pending a final order
of disposition. Such hearing must be scheduled for no later than the
next court day after the application for such hearing has been made.
(iii) In any case under this article in which a child has not been
removed from his or her parent or other person legally responsible, any
person originating a proceeding under this article or the [law guardian]
S. 5461 18
ATTORNEY FOR THE CHILD may apply for, or the court on its own motion may
order, a hearing at any time after the petition is filed to determine
whether the child's interests require protection, including whether the
child should be removed from his or her parent or other person legally
responsible, pending a final order of disposition. Such hearing must be
scheduled for no later than the next court day after the application for
such hearing has been made.
S 53. Subdivision (a) of section 1028 of the family court act, as
amended by chapter 36 of the laws of 1994, is amended to read as
follows:
(a) Upon the application of the parent or other person legally respon-
sible for the care of a child temporarily removed under this part or
upon the application of the [law guardian] CHILD'S ATTORNEY for an order
returning the child, the court shall hold a hearing to determine whether
the child should be returned (i) unless there has been a hearing pursu-
ant to section [ten hundred] ONE THOUSAND twenty-seven of this article
on the removal of the child at which the parent or other person legally
responsible was present and had the opportunity to be represented by
counsel, or (ii) upon good cause shown. Except for good cause shown,
such hearing shall be held within three court days of the application
and shall not be adjourned. Upon such hearing, the court shall grant the
application, unless it finds that the return presents an imminent risk
to the child's life or health. If a parent or other person legally
responsible for the care of a child waives his or her right to a hearing
under this section, the court shall advise such person at that time
that, notwithstanding such waiver, an application under this section may
be made at any time during the pendency of the proceedings.
S 54. Subdivision (a) of section 1029 of the family court act, as
amended by chapter 673 of the laws of 1988, is amended to read as
follows:
(a) The family court, upon the application of any person who may orig-
inate a proceeding under this article, for good cause shown, may issue a
temporary order of protection, before or after the filing of such peti-
tion, which may contain any of the provisions authorized on the making
of an order of protection under section [ten hundred] ONE THOUSAND
fifty-six. If such order is granted before the filing of a petition and
a petition is not filed under this article within ten days from the
granting of such order, the order shall be vacated. In any case where a
petition has been filed and [a law guardian] AN ATTORNEY FOR THE CHILD
HAS BEEN appointed, such [law guardian] ATTORNEY may make application
for a temporary order of protection pursuant to the provisions of this
section.
S 55. Subdivisions (b) and (d) of section 1030 of the family court
act, as added by chapter 457 of the laws of 1988, are amended to read as
follows:
(b) A respondent who has not been afforded such visitation may apply
to the court for an order requiring the local social services official
having temporary custody of the child pursuant to this part or pursuant
to subdivision (d) of section one thousand fifty-one of this article, to
permit the respondent to visit the child at stated periods. Such appli-
cation shall be made upon notice to the local social services official
and to any [law guardian] ATTORNEY appointed to represent the child, who
shall be afforded an opportunity to be heard thereon.
(d) An order made under this section may be modified by the court for
good cause shown, upon application by any party or the child's [law
guardian] ATTORNEY, and upon notice of such application to all other
S. 5461 19
parties and the child's [law guardian] ATTORNEY, who shall be afforded
an opportunity to be heard thereon.
S 56. Paragraph (a) of subdivision 1 of section 1033-b of the family
court act, as amended by chapter 75 of the laws of 1991, is amended to
read as follows:
(a) At the initial appearance, the court shall appoint [a law guardi-
an] AN ATTORNEY to represent the interests of any child named in a peti-
tion who is alleged to be abused or neglected, unless [a law guardian]
AN ATTORNEY has already been appointed for such child pursuant to
section [ten hundred] ONE THOUSAND sixteen of this act.
S 57. Subdivision (c) of section 1036 of the family court act, as
amended by chapter 69 of the laws of 1991, is amended to read as
follows:
(c) In cases involving either abuse or neglect, the court may send
process without the state in the same manner and with the same effect as
process sent within the state in the exercise of personal jurisdiction
over any person subject to the jurisdiction of the court under section
three hundred one or three hundred two of the civil practice law and
rules, notwithstanding that such person is not a resident or domiciliary
of the state, where the allegedly abused or neglected child resides or
is domiciled within the state and the alleged abuse or neglect occurred
within the state. In cases involving abuse where service of a petition
and summons upon a non-resident or non-domiciliary respondent is
required, such service shall be made within ten days after its issuance.
If service can not be effected in ten days, an extension of the period
to effect service may be granted by the court for good cause shown upon
application of any party or the [law guardian] CHILD'S ATTORNEY. Where
service is effected on an out of state respondent and the respondent
defaults by failing to appear to answer the petition, the court may on
its own motion, or upon application of any party or the [law guardian]
CHILD'S ATTORNEY proceed to a fact finding hearing thereon.
S 58. Subdivisions (b) and (c) of section 1038 of the family court
act, subdivision (b) as added by chapter 724 of the laws of 1989, subdi-
vision (c) as amended by chapter 65 of the laws of 1992, are amended to
read as follows:
(b) Pursuant to a demand [pursuant to section thirty-one] MADE UNDER
RULE THREE THOUSAND ONE hundred twenty of the civil practice law and
rules, a petitioner or social services official shall provide to a
respondent or the [law guardian] CHILD'S ATTORNEY any records, photo-
graphs or other evidence demanded relevant to the proceeding, for
inspection and photocopying. The petitioner or social services official
may delete the identity of the persons who filed reports pursuant to
section four hundred fifteen of the social services law, unless such
petitioner or official intends to offer such reports into evidence at a
hearing held pursuant to this article. The petitioner or social services
official may move for a protective order to withhold records, photo-
graphs or evidence which will not be offered into evidence and the
disclosure of which is likely to endanger the life or health of the
child.
(c) A respondent or the [law guardian] CHILD'S ATTORNEY may move for
an order directing that any child who is the subject of a proceeding
under this article be made available for examination by a physician,
psychologist or social worker selected by such party or [law guardian]
THE CHILD'S ATTORNEY. In determining the motion, the court shall
consider the need of the respondent or [law guardian] CHILD'S ATTORNEY
for such examination to assist in the preparation of the case and the
S. 5461 20
potential harm to the child from the examination. Nothing in this
section shall preclude the parties from agreeing upon a person to
conduct such examination without court order.
Any examination or interview, other than a physical examination, of a
child who is the subject of a proceeding under this article, for the
purposes of offering expert testimony to a court regarding the sexual
abuse of the child, as such term is defined by section one thousand
twelve of this article, may, in the discretion of the court, be vide-
otaped in its entirety with access to be provided to the court, the [law
guardian] CHILD'S ATTORNEY and all parties. In determining whether such
examination or interview should be videotaped, the court shall consider
the effect of the videotaping on the reliability of the examination, the
effect of the videotaping on the child and the needs of the parties,
including the [law guardian] ATTORNEY FOR THE CHILD, for the videotape.
Prior to admitting a videotape of an examination or interview into
evidence, the person conducting such examination or the person operating
the video camera shall submit to the court a verified statement confirm-
ing that such videotape is a complete and unaltered videographic record
of such examination of the child. The proponent of entry of the vide-
otape into evidence must establish that the potential prejudicial effect
is substantially outweighed by the probative value of the videotape in
assessing the reliability of the validator in court. Nothing in this
section shall in any way affect the admissibility of such evidence in
any other court proceeding. The chief administrator of the courts shall
promulgate regulations protecting the confidentiality and security of
such tapes, and regulating the access thereto, consistent with the
provisions of this section.
S 59. Section 1038-a of the family court act, as amended by chapter
162 of the laws of 1991, is amended to read as follows:
S 1038-a. Discovery; upon court order. Upon motion of a petitioner or
[law guardian] ATTORNEY FOR THE CHILD, the court may order a respondent
to provide nontestimonial evidence, only if the court finds probable
cause that the evidence is reasonably related to establishing the alle-
gations in a petition filed pursuant to this article. Such order may
include, but not be limited to, provision for the taking of samples of
blood, urine, hair or other materials from the respondent's body in a
manner not involving an unreasonable intrusion or risk of serious phys-
ical injury to the respondent.
S 60. Subdivisions (a), (b), (c), (d) and (e) of section 1039 of the
family court act, subdivision (a) as amended by chapter 601 of the laws
of 1985, subdivision (b) as amended by chapter 707 of the laws of 1975,
subdivision (c) as amended by chapter 323 of the laws of 1990, subdivi-
sion (d) as amended by chapter 167 of the laws of 1990, and subdivision
(e) as amended by chapter 194 of the laws of 1990, are amended to read
as follows:
(a) Prior to or upon a fact-finding hearing, the court may upon a
motion by the petitioner with the consent of the respondent and the
child's attorney [or law guardian] or upon its own motion with the
consent of the petitioner, the respondent and the child's attorney [or
law guardian], order that the proceeding be "adjourned in contemplation
of dismissal". Under no circumstances shall the court order any party to
consent to an order under this section. The court may make such order
only after it has apprised the respondent of the provisions of this
section and it is satisfied that the respondent understands the effect
of such provisions.
S. 5461 21
(b) An adjournment in contemplation of dismissal is an adjournment of
the proceeding for a period not to exceed one year with a view to ulti-
mate dismissal of the petition in furtherance of justice. Upon the
consent of the petitioner, the respondent and the child's attorney [or
law guardian], the court may issue an order extending such period for
such time and upon such conditions as may be agreeable to the parties.
(c) Such order may include terms and conditions agreeable to the
parties and to the court, provided that such terms and conditions shall
include a requirement that the child and the respondent be under the
supervision of a child protective agency during the adjournment period.
In any order issued pursuant to this section, such agency shall be
directed to make a progress report to the court, the parties and the
child's [law guardian] ATTORNEY on the implementation of such order, no
later than ninety days after the issuance of such order, unless the
court determines that the facts and circumstances of the case do not
require such reports to be made. The child protective agency shall make
further reports to the court, the parties and the [law guardian] CHILD'S
ATTORNEY in such manner and at such times as the court may direct.
(d) Upon application of the respondent, the petitioner, the child's
attorney [or law guardian] or upon the court's own motion, made at any
time during the duration of the order, if the child protective agency
has failed substantially to provide the respondent with adequate super-
vision or to observe the terms and conditions of the order, the court
may direct the child protective agency to observe such terms and condi-
tions and provide adequate supervision or may make any order authorized
pursuant to section two hundred fifty-five of this act.
(e) Upon application of the petitioner or the child's attorney [or law
guardian,] or upon the court's own motion, made at any time during the
duration of the order, the court may restore the matter to the calendar,
if the court finds after a hearing that the respondent has failed
substantially to observe the terms and conditions of the order or to
cooperate with the supervising child protective agency. In such event,
unless the parties consent to an order pursuant to section one thousand
fifty-one of this act or unless the petition is dismissed upon the
consent of the petitioner, the court shall thereupon proceed to a fact-
finding hearing under this article no later than sixty days after such
application unless such period is extended by the court for good cause
shown.
S 61. Section 1039-a of the family court act, as amended by chapter 69
of the laws of 1991, is amended to read as follows:
S 1039-a. Procedures following adjournment in contemplation of
dismissal. The local child protective service shall notify the child's
[law guardian] ATTORNEY of an indicated report of child abuse or
maltreatment in which the respondent is a subject of the report or
another person named in the report, as such terms are defined in section
four hundred twelve of the social services law, while any order issued
pursuant to section [ten hundred] ONE THOUSAND thirty-nine or extension
thereof remains in effect.
S 62. Section 1042 of the family court act, as amended by section 4 of
part B of chapter 3 of the laws of 2005, is amended to read as follows:
S 1042. Effect of absence of parent or other person responsible for
care. If the parent or other person legally responsible for the child's
care is not present, the court may proceed to hear a petition under this
article only if the child is represented by counsel[, a law guardian,]
or a guardian ad litem. The parent or other person legally responsible
for the child's care shall be served with a copy of the order of dispo-
S. 5461 22
sition with written notice of its entry pursuant to section one thousand
thirty-six of this article. Within one year of such service or substi-
tuted service pursuant to section one thousand thirty-six of this arti-
cle, the parent or other person legally responsible for the child's care
may move to vacate the order of disposition and schedule a rehearing.
Such motion shall be granted on an affidavit showing such relationship
or responsibility and a meritorious defense to the petition, unless the
court finds that the parent or other person willfully refused to appear
at the hearing, in which case the court may deny the motion.
S 63. Subdivision (b) of section 1048 of the family court act, as
amended by chapter 141 of the laws of 1990, is amended to read as
follows:
(b) At the conclusion of a fact-finding hearing and after the court
has made findings required before a dispositional hearing may commence,
the court may on its own motion or motion of the respondent, the peti-
tioner or the [law guardian] CHILD'S ATTORNEY order a reasonable
adjournment of the proceedings[,] to enable the court to make inquiry
into the surroundings, conditions[,] and capacities of the persons
involved in the proceedings.
S 64. Subdivision (a) of section 1051 of the family court act, as
amended by chapter 160 of the laws of 1987, is amended to read as
follows:
(a) If facts sufficient to sustain the petition are established in
accord with part four of this article, or if all parties and the [law
guardian] ATTORNEY FOR THE CHILD consent, the court shall, subject to
the provisions of subdivision (c) of this section, enter an order find-
ing that the child is an abused child or a neglected child and shall
state the grounds for the finding.
S 65. Section 1052-a of the family court act, as amended by chapter 69
of the laws of 1991, is amended to read as follows:
S 1052-a. Post-dispositional procedures. The local child protective
service shall notify the child's [law guardian] ATTORNEY of an indicated
report of child abuse or maltreatment in which the respondent is a
subject of the report or another person named in the report, as such
terms are defined in section four hundred twelve of the social services
law, while any order issued pursuant to paragraph (i), (iii), (iv) or
(v) of subdivision (a) of section [ten hundred] ONE THOUSAND fifty-two
remains in effect against the respondent.
S 66. Subdivision (c) of section 1053 of the family court act, as
added by chapter 323 of the laws of 1990, is amended to read as follows:
(c) Except as provided for herein, in any order issued pursuant to
this section, the court may require the child protective agency to make
progress reports to the court, the parties, and the child's [law guardi-
an] ATTORNEY on the implementation of such order. Where the order of
disposition is issued upon the consent of the parties and the child's
[law guardian] ATTORNEY, such agency shall report to the court, the
parties and the child's [law guardian] ATTORNEY no later than ninety
days after the issuance of the order, unless the court determines that
the facts and circumstances of the case do not require such report to be
made.
S 67. Subdivision (a) of section 1054 of the family court act, as
separately amended by chapters 206 and 323 of the laws of 1990, is
amended to read as follows:
(a) If the order of disposition releases the child to the custody of
his OR HER parent or other person legally responsible for his OR HER
care at the time of the filing of the petition, the court may place the
S. 5461 23
person to whose custody the child is released under supervision of a
child protective agency or of a social services official or duly author-
ized agency, or may enter an order of protection under section [ten
hundred] ONE THOUSAND fifty-six, or both. An order of supervision
entered under this section shall set forth the terms and conditions of
such supervision that the respondent must meet and the actions that the
child protective agency, social services official or duly authorized
agency must take to exercise such supervision. Except as provided for
herein, in any order issued pursuant to this section, the court may
require the child protective agency to make progress reports to the
court, the parties, and the child's [law guardian] ATTORNEY on the
implementation of such order. Where the order of disposition is issued
upon the consent of the parties and the child's [law guardian] ATTORNEY,
such agency shall report to the court, the parties and the child's [law
guardian] ATTORNEY no later than ninety days after the issuance of the
order, unless the court determines that the facts and circumstances of
the case do not require such report to be made.
S 68. Subparagraph (E) of paragraph (i) of subdivision (b) of section
1055 of the family court act, as amended by chapter 437 of the laws of
2006, is amended to read as follows:
(E) where the permanency goal is return to the parent and it is antic-
ipated that the child may be finally discharged to his or her parent
before the next scheduled permanency hearing, the court may provide the
local social services district with authority to finally discharge the
child to the parent without further court hearing, provided that ten
days prior written notice is served upon the court and [law guardian]
CHILD'S ATTORNEY. If the court on its own motion or the [law guardian]
CHILD'S ATTORNEY on motion to the court does not request the matter to
be brought for review before final discharge, no further permanency
hearings will be required. The local social services district may also
discharge the child on a trial basis to the parent unless the court has
prohibited such trial discharge or unless the court has conditioned such
trial discharge on another event. For the purposes of this section,
trial discharge shall mean that the child is physically returned to the
parent while the child remains in the care and custody of the local
social services district. Permanency hearings shall continue to be held
for any child who has returned to his or her parents on a trial
discharge. Where the permanency goal for a child aging out of foster
care is another planned permanent living arrangement that includes a
significant connection to an adult willing to be a permanency resource
for the child, the local social services district may also discharge the
child on a trial basis to the planned permanent living arrangements,
unless the court has prohibited or otherwise conditioned such a trial
discharge. Trial discharge for a child aging out of foster care shall
mean that a child is physically discharged but the local social services
district retains care and custody or custody and guardianship of the
child and there remains a date certain for the scheduled permanency
hearing. Children placed under this section shall be placed until the
court completes the initial permanency hearing scheduled pursuant to
article ten-A of this act. Should the court determine pursuant to arti-
cle ten-A of this act that placement shall be extended beyond completion
of the scheduled permanency hearing, such extended placement and any
such successive extensions of placement shall expire at the completion
of the next scheduled permanency hearing, unless the court shall deter-
mine, pursuant to article ten-A of this act, to continue to extend such
placement.
S. 5461 24
S 69. Subdivisions (a) and (c) of section 1055-a of the family court
act, as added by section 19 of part A of chapter 3 of the laws of 2005,
are amended to read as follows:
(a) In case of a substantial failure of a material condition in a
surrender executed pursuant to section three hundred eighty-three-c of
the social services law prior to finalization of the adoption of the
child, the court shall possess continuing jurisdiction in accordance
with subdivision six of such section to rehear the matter upon the
filing of a petition by the authorized agency, the parent or the [law
guardian] ATTORNEY for the child or whenever the court deems necessary.
In such case, the authorized agency shall notify the parent, unless such
notice is expressly waived by a statement written by the parent and
appended to or included in such instrument, the [law guardian] ATTORNEY
for the child and the court that approved the surrender within twenty
days of any substantial failure to comply with a material condition of
the surrender prior to the finalization of the adoption of the child. In
such case, the authorized agency shall file a petition on notice to the
parent unless notice is expressly waived by a statement written by the
parent and appended to or included in such instrument and the [law guar-
dian] ATTORNEY FOR THE CHILD in accordance with this section within
thirty days of such failure, except for good cause shown, in order for
the court to review such failure and, where necessary, to hold a hear-
ing; provided, however, that in the absence of such filing, the parent
and/or [law guardian] ATTORNEY for the child may file such a petition at
any time up to sixty days after notification of the failure. Such peti-
tion filed by a parent or [law guardian] CHILD'S ATTORNEY must be filed
prior to the adoption of the child.
(c) Nothing in this section shall limit the rights and remedies avail-
able to the parties and the [law guardian] ATTORNEY FOR THE CHILD pursu-
ant to section one hundred twelve-b of the domestic relations law with
respect to a failure to comply with a material condition of a surrender
subsequent to the finalization of the adoption of the child.
S 70. Subdivision (c) of section 1055-b of the family court act, as
added by chapter 519 of the laws of 2008, is amended to read as follows:
(c) As part of the order granting custody or guardianship pursuant to
article six of this act, the court may require that the local department
of social services and the [law guardian] ATTORNEY for the child receive
notice of and be made parties to any subsequent proceeding to modify the
order of custody or guardianship granted pursuant to the article six
proceeding.
S 71. Section 1057 of the family court act, as separately amended by
chapters 206 and 323 of the laws of 1990, is amended to read as follows:
S 1057. Supervision. The court may place the respondent under super-
vision of a child protective agency or of a social services official or
duly authorized agency. An order of supervision entered under this
section shall set forth the terms and conditions of such supervision
that the respondent must meet and the actions that the child protective
agency, social services official or duly authorized agency must take to
exercise such supervision. Except as provided for herein, in any order
issued pursuant to this section, the court may require the child protec-
tive agency to make progress reports to the court, the parties, and the
child's [law guardian] ATTORNEY on the implementation of such order.
Where the order of disposition is issued upon the consent of the parties
and the child's [law guardian] ATTORNEY, such agency shall report to the
court, the parties and the child's [law guardian] ATTORNEY no later than
ninety days after the issuance of the order, unless the court determines
S. 5461 25
that the facts and circumstances of the case do not require such report
to be made. Rules of court shall define permissible terms and conditions
of supervision under this section. The duration of any period of super-
vision shall be for an initial period of no more than one year and the
court may at the expiration of that period, upon a hearing and for good
cause shown, make successive extensions of such supervision of up to one
year each.
S 72. Section 1058 of the family court act, as amended by section 20
of part A of chapter 3 of the laws of 2005, is amended to read as
follows:
S 1058. Expiration of orders. No later than sixty days prior to the
expiration of an order issued pursuant to paragraph (i), (ii), (iv), or
(v) of subdivision (a) of section one thousand fifty-two of this part or
prior to the conclusion of the period of an adjournment in contemplation
of dismissal pursuant to section one thousand thirty-nine of this arti-
cle, where no application has been made seeking extension of such orders
or adjournments and, with respect to an adjournment in contemplation of
dismissal, no violations of the court's order are before the court, the
child protective agency shall, whether or not the child has been or will
be returned to the family, report to the court, the parties, including
any non-respondent parent and the child's [law guardian] ATTORNEY on the
status and circumstances of the child and family and any actions taken
or contemplated by such agency with respect to such child and family.
S 73. Section 1063 of the family court act, as amended by section 22
of part A of chapter 3 of the laws of 2005, is amended to read as
follows:
S 1063. Service of motion; answer. A copy of a motion under section
one thousand sixty-two of this part shall promptly be served by regular
mail upon the duly authorized agency or the institution having custody
of the child and upon the [law guardian] CHILD'S ATTORNEY, each of whose
duty it is to file an answer to the motion within five days of the
receipt of the motion.
S 74. Section 1073 of the family court act, as added by chapter 962 of
the laws of 1970, is amended to read as follows:
S 1073. Effect of running away from place of placement. If a child
placed under section one thousand fifty-five runs away from the place of
placement the court may, after hearing, revoke the order of placement
and make any order, including an order of placement, that might have
been made at the time the order of placement was made. The court may
require that the child be present at such hearing and shall appoint [a
law guardian] AN ATTORNEY to represent him OR HER.
S 75. Section 1075 of the family court act, as added by chapter 316 of
the laws of 1990, is amended to read as follows:
S 1075. Special duties of [law guardian] ATTORNEY FOR THE CHILD. In
addition to all other duties and responsibilities necessary to the
representation of a child who is the subject of a proceeding under this
article, [a law guardian] AN ATTORNEY FOR A CHILD shall upon receipt of
a report from a child protective agency pursuant to sections [ten
hundred] ONE THOUSAND thirty-nine, [ten hundred] ONE THOUSAND thirty-
nine-a, [ten hundred] ONE THOUSAND fifty-two-a, [ten hundred] ONE THOU-
SAND fifty-three, [ten hundred] ONE THOUSAND fifty-four, [ten hundred]
ONE THOUSAND fifty-five, [ten hundred] ONE THOUSAND fifty-seven and [ten
hundred] ONE THOUSAND fifty-eight, review the information contained
therein and make a determination as to whether there is reasonable cause
to suspect that the child is at risk of further abuse or neglect or that
there has been a substantive violation of a court order. Where the [law
S. 5461 26
guardian] ATTORNEY FOR THE CHILD makes such a determination, the [law
guardian] ATTORNEY shall apply to the court for appropriate relief
pursuant to section [ten hundred] ONE THOUSAND sixty-one. Nothing
contained in this section shall relieve a child protective agency or
social services official of its duties pursuant to this act or the
social services law.
S 76. Subdivision 4 of section 1081 of the family court act, as added
by chapter 457 of the laws of 1988, is amended to read as follows:
4. The petition shall be served upon the respondent in a proceeding
under this article, the local social services official having the care
of the child, any grandparent or grandparents named in the petition as
having visitation rights conferred by court order pursuant to section
seventy-two or two hundred forty of the domestic relations law, and upon
the child's [law guardian] ATTORNEY. The petition shall be served in
such manner as the court may direct.
S 77. Paragraph (b) of subdivision 1 and subdivision 2 of section 1082
of the family court act, as added by chapter 457 of the laws of 1988,
are amended to read as follows:
(b) The department, the [law guardian] CHILD'S ATTORNEY and the
respondent in a proceeding under this article, shall have the right to
be heard [in] WITH respect to a petition for an order to enforce visita-
tion rights under this part.
2. Where the local department of social services or the [law guardian]
CHILD'S ATTORNEY opposes a petition described in section one thousand
eighty-one of this part, the department or the [law guardian] CHILD'S
ATTORNEY as appropriate shall serve and file an answer to the petition.
The court shall, upon the filing of such answer, set a date for a hear-
ing on such petition and shall notify the parents, grandparent or grand-
parents, the department and the [law guardian] CHILD'S ATTORNEY of such
hearing date.
S 78. Subdivision 4 of section 1085 of the family court act, as added
by chapter 378 of the laws of 1999, is amended to read as follows:
4. For the purposes of making a determination pursuant to subparagraph
(C) of paragraph (i) of subdivision one of this section, the court shall
not be bound by the findings of fact, conclusions of law or ultimate
conclusion as determined by the proceedings leading to the conviction of
murder in the first or second degree in this state or of an offense in
another jurisdiction which, if committed in this state, would constitute
murder in either the first or second degree, of a parent, legal guardi-
an, legal custodian, sibling, half-sibling or step-sibling of a child
who is the subject of the proceeding. In all proceedings under this
section, [a law guardian] AN ATTORNEY shall be appointed for the child.
S 79. Section 1088 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 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 of the social services law, or pursuant to
section one thousand seventeen, 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 thou-
sand 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 juris-
diction over the case until the child is discharged from placement and
all orders regarding supervision, protection or services have expired.
S. 5461 27
The court shall rehear the matter whenever it deems necessary or desira-
ble, or upon motion by any party entitled to notice in proceedings under
this article, or by the [law guardian] ATTORNEY for the child, and when-
ever 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.
S 80. Subparagraph (ii) of paragraph 1 of subdivision (b) of section
1089 of the family court act, as added by section 27 of part A of chap-
ter 3 of the laws of 2005, is amended to read as follows:
(ii) the agency supervising the care of the child on behalf of the
social services district with whom the child was placed, the child's
[law guardian] ATTORNEY, and the attorney for the respondent parent.
S 81. Clauses (C) and (G) of subparagraph (viii) of paragraph 2 of
subdivision (d) of section 1089 of the family court act, clause (C) as
amended by chapter 437 of the laws of 2006, clause (G) as added by
section 27 of part A of chapter 3 of the laws of 2005, are amended to
read as follows:
(C) Where the permanency goal is return to parent and it is antic-
ipated that the child may be returned home before the next scheduled
permanency hearing, the court may provide the local social services
district with authority to finally discharge the child to the parent
without further court hearing, provided that ten days prior written
notice is served upon the court and [law guardian] CHILD'S ATTORNEY. If
the court on its own motion or the [law guardian] CHILD'S ATTORNEY on
motion to the court does not request the matter to be brought for review
before final discharge, no further permanency hearings will be required.
The local social services district may also discharge the child on a
trial basis to the parent unless the court has prohibited such trial
discharge or unless the court has conditioned such trial discharge on
another event. For the purposes of this section, trial discharge shall
mean that the child is physically returned to the parent while the child
remains in the care and custody of the local social services district.
Permanency hearings shall continue to be held for any child who has
returned to his or her parents on a trial discharge. Where the permanen-
cy goal for a child aging out of foster care is another planned perma-
nent living arrangement that includes a significant connection to an
adult willing to be a permanency resource for the child, the local
social services district may also discharge the child on a trial basis
to the planned permanent living arrangements, unless the court has
prohibited or otherwise conditioned such a trial discharge. Trial
discharge for a child aging out of foster care shall mean that a child
is physically discharged but the local social services district retains
care and custody or custody and guardianship of the child and there
remains a date certain for the scheduled permanency hearing.
(G) Except as provided for herein, in any order issued pursuant to
this section, the court may require the local social services district
or agency to make progress reports to the court, the parties, and the
child's [law guardian] ATTORNEY on the implementation of such order.
S 82. Subparagraph (B) of paragraph (iv) of subdivision (a) and subdi-
vision (c) of section 1089-a of the family court act, as added by chap-
ter 519 of the laws of 2008, are amended to read as follows:
(B) if the local department of social services, the [law guardian]
ATTORNEY for the child, or the foster parent of the child who has been
the foster parent for the child for one year or more fail to consent to
the granting of custody or guardianship under article six of this act,
S. 5461 28
the court finds that granting custody or guardianship of the child to
the relative or suitable person is in the best interests of the child.
(c) As part of the order granting custody or guardianship to the rela-
tive or suitable person pursuant to article six of this act, the court
may require that the local department of social services and the [law
guardian] ATTORNEY for the child receive notice of and be made parties
to any subsequent proceeding to modify the order of custody or guardian-
ship granted pursuant to the article six proceeding.
S 83. Subdivision (a) of section 1090 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:
(a) If [a law guardian] 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 of the social services law, or article
ten of this act, the appointment of the [law guardian] ATTORNEY FOR THE
CHILD shall continue without further court order or appointment, unless
another appointment of [a law guardian] 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.
All notices, reports and motions required by law shall be provided to
[such law guardian] THE CHILD'S ATTORNEY. The [law guardian] 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 immediately appoint another [law guardian]
ATTORNEY to whom all notices, reports, and motions required by law shall
be provided.
S 84. Section 1113 of the family court act, as amended by chapter 461
of the laws of 1997, is amended to read as follows:
S 1113. Time of appeal. An appeal under this article must be taken no
later than thirty days after the service by a party or the [law guardi-
an] CHILD'S ATTORNEY upon the appellant of any order from which the
appeal is taken, thirty days from receipt of the order by the appellant
in court or thirty-five days from the mailing of the order to the appel-
lant by the clerk of the court, whichever is earliest.
All such orders shall contain the following statement in conspicuous
print: "Pursuant to section 1113 of the family court act, an appeal must
be taken within thirty days of receipt of the order by appellant in
court, thirty-five days from the mailing of the order to the appellant
by the clerk of the court, or thirty days after service by a party or
[law guardian] ATTORNEY FOR THE CHILD upon the appellant, whichever is
earliest." When service of the order is made by the court, the time to
take an appeal shall not commence unless the order contains such state-
ment and there is an official notation in the court record as to the
date and the manner of service of the order.
S 85. Subdivision (d) of section 1114 of the family court act, as
added by chapter 417 of the laws of 1991, is amended to read as follows:
(d) Any party to a child protective proceeding, or the [law guardian]
ATTORNEY FOR THE CHILD, may apply to a justice of the appellate division
for a stay of an order issued pursuant to part two of article ten of
this chapter returning a child to the custody of a respondent. The party
applying for the stay shall notify the attorneys for all parties and the
[law guardian] ATTORNEY FOR THE CHILD of the time and place of such
application. If requested by any party present, oral argument shall be
had on the application, except for good cause stated upon the record.
The party applying for the stay shall state in the application the
S. 5461 29
errors of fact or law allegedly committed by the family court. A party
applying to the court for the granting or continuation of such stay
shall make every reasonable effort to obtain a complete transcript of
the proceeding before the family court.
If a stay is granted, a schedule shall be set for an expedited appeal.
S 86. Section 1115 of the family court act, as amended by section 29
of part A of chapter 3 of the laws of 2005, is amended to read as
follows:
S 1115. Notices of appeal. An appeal as of right shall be taken by
filing the original notice of appeal with the clerk of the family court
in which the order was made and from which the appeal is taken.
A notice of appeal shall be served on any adverse party as provided
for in subdivision one of section five thousand five hundred fifteen of
the civil practice law and rules and upon the [law guardian] CHILD'S
ATTORNEY, if any. The appellant shall file two copies of such notice,
together with proof of service, with the clerk of the family court who
shall forthwith transmit one copy of such notice to the clerk of the
appropriate appellate division or as otherwise required by such appel-
late division.
S 87. Section 1118 of the family court act, as amended by chapter 437
of the laws of 2006, is amended to read as follows:
S 1118. Applicability of civil practice law and rules. The provisions
of the civil practice law and rules apply where appropriate to appeals
under this article, provided, however, that the fees required by section
eight thousand twenty-two of the civil practice law and rules shall not
be required where the attorney for the appellant or attorney for the
movant, as applicable, certifies that such appellant or movant has been
assigned counsel or [a law guardian] AN ATTORNEY FOR A CHILD pursuant to
section two hundred forty-nine, two hundred sixty-two or eleven hundred
twenty of this act or section seven hundred twenty-two of the county
law, or is represented by a legal aid society or a legal services
program or other nonprofit organization, which has as its primary
purpose the furnishing of legal services to indigent persons, or by
private counsel working on behalf of or under the auspices of such soci-
ety or organization. Where the attorney for the appellant or the attor-
ney for the movant certifies in accordance with procedures established
by the appropriate appellate division that the appellant or movant has
been represented in family court by assigned counsel or [a law guardian]
AN ATTORNEY FOR A CHILD, pursuant to section two hundred forty-nine, two
hundred sixty-two or eleven hundred twenty of this act or section seven
hundred twenty-two of the county law, or is represented by a legal aid
society or legal services program or some other nonprofit organization,
which has as its primary purpose the furnishing of legal services to
indigent persons, or by private counsel working on behalf or under the
auspices of such society or organization, and that the appellant, who
has indicated an intention to appeal, or movant, continues to be eligi-
ble for assignment of counsel and, in the case of counsel assigned to
represent an adult party, continues to be indigent, the appellant or
movant shall be presumed eligible for poor person relief pursuant to
section eleven hundred one of the civil practice law and rules and for
assignment of counsel on appeal without further motion. The appointment
of counsel and granting of poor person relief by the appellate division
shall continue for the purpose of filing a notice of appeal or motion
for leave to appeal to the court of appeals.
S 88. The section heading and subdivisions (b), (c), (d), (e) and (f)
of section 1120 of the family court act, the section heading and subdi-
S. 5461 30
visions (b), (c) and (e) as amended by chapter 476 of the laws of 1988,
subdivision (d) as amended by chapter 75 of the laws of 1991, and subdi-
vision (f) as added by chapter 582 of the laws of 1991, are amended to
read as follows:
Counsel [or law guardian] FOR PARTIES AND CHILDREN on appeal.
(b) Whenever [a law guardian] AN ATTORNEY has been appointed by the
family court pursuant to section two hundred forty-nine of this act to
represent a child in a proceeding described therein, the appointment
shall continue without further court order or appointment where (i) the
[law guardian] ATTORNEY on behalf of the child files a notice of appeal,
or (ii) where a party to the original proceeding files a notice of
appeal. The [law guardian] ATTORNEY FOR THE CHILD may be relieved of his
representation upon application to the court to which the appeal is
taken for termination of the appointment. Upon approval of such applica-
tion the court shall appoint another [law guardian] ATTORNEY FOR THE
CHILD.
(c) An appellate court may appoint [a law guardian] AN ATTORNEY to
represent a child in an appeal in a proceeding originating in the family
court where [a law guardian] AN ATTORNEY was not representing the child
at the time of the entry of the order appealed from or at the time of
the filing of the motion for permission to appeal and when independent
legal representation is not available to such child.
(d) Nothing in this section shall be deemed to relieve [law guardians]
ATTORNEYS FOR CHILDREN of their duties pursuant to subdivision one of
sections 354.2 and seven hundred sixty of this act.
(e) [Law guardians] AN ATTORNEY appointed or continuing to represent a
[person] CHILD under this section shall be compensated and shall receive
reimbursement for expenses reasonably incurred in the same manner
provided by section thirty-five of the judiciary law.
(f) In any case where [a law guardian] AN ATTORNEY is or shall be
representing a child in an appellate proceeding pursuant to subdivision
(b) or (c) of this section, such [law guardian] ATTORNEY shall be served
with a copy of the notice of appeal.
S 89. Subdivisions 2, 3, 4 and 5 of section 1121 of the family court
act, subdivisions 2 and 4 as added by chapter 582 of the laws of 1991,
subdivisions 3 and 5 as amended by chapter 437 of the laws of 2006, are
amended to read as follows:
2. Upon the filing of such order, it shall be the duty of counsel to
the parties and the [law guardian] CHILD to promptly advise the parties
in writing of the right to appeal to the appropriate appellate division
of the supreme court, the time limitations involved, the manner of
instituting an appeal and obtaining a transcript of the testimony and
the right to apply for leave to appeal as a poor person if the party is
unable to pay the cost of an appeal. It shall be the further duty of
such counsel [or law guardian] to explain to the client the procedures
for instituting an appeal, the possible reasons upon which an appeal may
be based and the nature and possible consequences of the appellate proc-
ess.
3. It shall also be the duty of such counsel [or law guardian] to
ascertain whether the party represented by such attorney wishes to
appeal and, if so, to serve and file the necessary notice of appeal and,
as applicable, to apply for leave to appeal as a poor person, to file a
certification of continued eligibility for appointment of counsel pursu-
ant to section eleven hundred eighteen of this article, and to submit
such other documents as may be required by the appropriate appellate
division.
S. 5461 31
4. If the party has been permitted to waive the appointment of [a law
guardian or] counsel appointed pursuant to section two hundred forty-
nine-a or two hundred sixty-two of this act, it shall be the duty of the
court to advise the party of the right to the appointment of [a law
guardian or] counsel for the purpose of filing an appeal.
5. Where a party wishes to appeal, it shall also be the duty of such
counsel [or law guardian], where appropriate, to apply for assignment of
counsel for such party pursuant to applicable provisions of this act,
the judiciary law and the civil practice law and rules, and to file a
certification of continued eligibility for appointment of counsel and,
in the case of counsel assigned to represent an adult party, continued
indigency, pursuant to section [eleven] ONE THOUSAND ONE hundred eigh-
teen of this article and to submit such other documents as may be
required by the appropriate appellate division.
S 90. Section 2306 of the public health law, as amended by chapter 512
of the laws of 1992, is amended to read as follows:
S 2306. Sexually transmissible diseases; reports and information,
confidential. All reports or information secured by a board of health
or health officer under the provisions of this article shall be confi-
dential except in so far as is necessary to carry out the purposes of
this article. Such report or information may be disclosed by court order
in a criminal proceeding in which it is otherwise admissible or in a
proceeding pursuant to article ten of the family court act in which it
is otherwise admissible, to the prosecution and to the defense, or in a
proceeding pursuant to article ten of the family court act in which it
is otherwise admissible, to the petitioner, respondent and [law guardi-
an] ATTORNEY FOR THE CHILD, provided that the subject of the report or
information has waived the confidentiality provided for by this section.
A person waives the confidentiality provided for by this section if such
person voluntarily discloses or consents to disclosure of such report or
information or a portion thereof. If such person lacks the capacity to
consent to such a waiver, his or her parent, guardian or [law guardian]
ATTORNEY may so consent. An order directing disclosure pursuant to this
section shall specify that no report or information shall be disclosed
pursuant to such order which identifies or relates to any person other
than the subject of the report or information.
S 91. Paragraph (p) of subdivision 1 of section 2782 of the public
health law, as added by chapter 592 of the laws of 1990, is amended to
read as follows:
(p) [a law guardian,] AN ATTORNEY appointed to represent a minor
pursuant to the social services law or the family court act, with
respect to confidential HIV related information relating to the minor
and for the purpose of representing the minor. If the minor has the
capacity to consent, the [law guardian] MINOR'S ATTORNEY may not redis-
close confidential HIV related information without the minor's permis-
sion. If the minor lacks capacity to consent, the [law guardian] MINOR'S
ATTORNEY may redisclose confidential HIV related information for the
sole purpose of representing the minor. This paragraph shall not limit
[a law guardian's] THE ability OF THE MINOR'S ATTORNEY to seek relief
under section twenty-seven hundred eighty-five of this chapter.
S 92. Subdivision 6 and paragraphs (b) and (c) of subdivision 10 of
section 358-a of the social services law, subdivision 6 as amended by
chapter 78 of the laws of 1978, paragraphs (b) and (c) of subdivision 10
as added by chapter 457 of the laws of 1988, are amended to read as
follows:
S. 5461 32
(6) Representation. In any case where a hearing is directed by the
family court judge, he [may, in his discretion,] OR SHE SHALL, PURSUANT
TO SECTION TWO HUNDRED FORTY-NINE OF THE FAMILY COURT ACT, appoint [a
law guardian] AN ATTORNEY to represent the child, who shall be [an
attorney] admitted to practice law in the state of New York.
(b) Where a social services official or the [law guardian of] ATTORNEY
FOR the child[, if any,] 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 chap-
ter, the social services official or [law guardian] 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 instru-
ment 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 enforce-
ment of visitation rights as described in such order, judgment or agree-
ment. 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 [law guardian] ATTORNEY,
order an alternative 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.
S 93. Subdivision 3 of section 372 of the social services law, as
amended by chapter 394 of the laws of 1993, is amended to read as
follows:
3. Such records maintained by the department or an authorized agency,
including a local social services district, regarding such children are
confidential, provided, however, that such records are subject to the
provisions of article thirty-one of the civil practice law and rules.
When either the subject foster child, or such child's parent, or such
child's guardian if any, is not a party to the action, a copy of the
notice or motion for discovery shall be served upon such parent, guardi-
an, and child and, if the child is still a minor, the child's [law guar-
dian] ATTORNEY. Such persons may thereafter appear in the action with
regard to such discovery. Where no action is pending, upon application
by a parent, relative or legal guardian of such child or by an author-
ized agency, after due notice to the institution or authorized agency
affected and hearing had thereon, the supreme court may by order direct
the officers of such institution or authorized agency to furnish to such
parent, relative, legal guardian or authorized agency such extracts from
the record relating to such child as the court may deem proper. The
department through its authorized agents and employees may examine at
all reasonable times the records required by this section to be kept.
S 94. Paragraph (b) of subdivision 2 and subparagraphs (i) and (ii) of
paragraph (c) of subdivision 5 of section 383-c of the social services
law, paragraph (b) of subdivision 2 as added by section 41 and subpara-
graph (ii) of paragraph (c) of subdivision 5 as amended by section 43 of
part A of chapter 3 of the laws of 2005, and subparagraph (i) of para-
graph (c) of subdivision 5 as amended by chapter 76 of the laws of 2002,
are amended to read as follows:
S. 5461 33
(b) If a surrender instrument designates a particular person or
persons who will adopt a child, such person or persons, the child's
birth parent or parents, the authorized agency having care and custody
of the child and the child's [law guardian] ATTORNEY, may enter into a
written agreement providing for communication or contact between the
child and the child's parent or parents on such terms and conditions as
may be agreed to by the parties. If a surrender instrument does not
designate a particular person or persons who will adopt the child, then
the child's birth parent or parents, the authorized agency having care
and custody of the child and the child's [law guardian] ATTORNEY may
enter into a written agreement providing for communication or contact,
on such terms and conditions as may be agreed to by the parties. Such
agreement also may provide terms and conditions for communication with
or contact between the child and the child's biological siblings or
half-siblings, if any. If any such sibling or half-sibling is fourteen
years of age or older, such terms and conditions shall not be enforcea-
ble unless such sibling or half-sibling consents to the agreement in
writing. If the court before which the surrender instrument is presented
for approval determines that the agreement concerning communication and
contact is in the child's best interests, the court shall approve the
agreement. If the court does not approve the agreement, the court may
nonetheless approve the surrender; provided, however, that the birth
parent or parents executing the surrender instrument shall be given the
opportunity at that time to withdraw such instrument. Enforcement of any
agreement prior to the adoption of the child shall be in accordance with
subdivision (b) of section one thousand fifty-five-a of the family court
act. Subsequent to the adoption of the child, enforcement of any agree-
ment shall be in accordance with section one hundred twelve-b of the
domestic relations law.
(i) the authorized agency shall notify the parent, unless such notice
is expressly waived by a statement written by the parent and appended to
or included in such instrument, the [law guardian] ATTORNEY for the
child and the court that approved the surrender within twenty days of
any substantial failure of a material condition of the surrender prior
to the finalization of the adoption of the child; and
(ii) except for good cause shown, the authorized agency shall file a
petition on notice to the parent unless notice is expressly waived by a
statement written by the parent and appended to or included in such
instrument and [law guardian] THE CHILD'S ATTORNEY in accordance with
section one thousand fifty-five-a of the family court act within thirty
days of such failure, in order for the court to review such failure and,
where necessary, to hold a hearing; provided, however, that, in the
absence of such filing, the parent and/or [law guardian] ATTORNEY for
the child may file such a petition at any time up to sixty days after
notification of the failure. Such petition filed by a parent or [law
guardian] ATTORNEY FOR THE CHILD must be filed prior to the CHILD'S
adoption [of the child]; and
S 95. Paragraph (b) of subdivision 2 and subparagraphs (i) and (ii) of
the closing paragraph of subdivision 3 of section 384 of the social
services law, paragraph (b) of subdivision 2 as added by section 48 and
subparagraph (ii) of the closing paragraph of subdivision 3 as amended
by section 49 of part A of chapter 3 of the laws of 2005, and subpara-
graph (i) of the closing paragraph of subdivision 3 as added by chapter
76 of the laws of 2002, are amended to read as follows:
(b) If a surrender instrument designates a particular person or
persons who will adopt a child, such person or persons, the child's
S. 5461 34
birth parent or parents, the authorized agency having care and custody
of the child and the child's [law guardian] ATTORNEY, may enter into a
written agreement providing for communication or contact between the
child and the child's parent or parents on such terms and conditions as
may be agreed to by the parties.
If a surrender instrument does not designate a particular person or
persons who will adopt the child, then the child's birth parent or
parents, the authorized agency having care and custody of the child and
the child's [law guardian] ATTORNEY may enter into a written agreement
providing for communication or contact, on such terms and conditions as
may be agreed to by the parties. Such agreement also may provide terms
and conditions for communication with or contact between the child and
the child's biological sibling or half-sibling, if any. If any such
sibling or half-sibling is fourteen years of age or older, such terms
and conditions shall not be enforceable unless such sibling or half-si-
bling consents to the agreement in writing. If the court before which
the surrender instrument is presented for approval determines that the
agreement concerning communication and contact is in the child's best
interests, the court shall approve the agreement. If the court does not
approve the agreement, the court may nonetheless approve the surrender;
provided, however, that the birth parent or parents executing the
surrender instrument shall be given the opportunity at that time to
withdraw such instrument. Enforcement of any agreement prior to the
adoption of the child shall be in accordance with subdivision (b) of
section one thousand fifty-five-a of the family court act. Subsequent to
the adoption of the child, enforcement of any agreement shall be in
accordance with section one hundred twelve-b of the domestic relations
law.
(i) the authorized agency shall notify the parent, unless such notice
is expressly waived by a statement written by the parent and appended to
or included in such instrument, the [law guardian] ATTORNEY for the
child and the court that approved the surrender within twenty days of
any substantial failure of a material condition of the surrender prior
to the finalization of the adoption of the child; and
(ii) except for good cause shown, the authorized agency shall file a
petition on notice to the parent unless notice is expressly waived by a
statement written by the parent and appended to or included in such
instrument and [law guardian] THE CHILD'S ATTORNEY in accordance with
section one thousand fifty-five-a of the family court act within thirty
days of such failure, in order for the court to review such failure and,
where necessary, to hold a hearing; provided, however, that, in the
absence of such filing, the parent and/or [law guardian] ATTORNEY for
the child may file such a petition at any time up to sixty days after
notification of such failure. Such petition filed by a parent or [law
guardian] ATTORNEY FOR THE CHILD must be filed prior to the CHILD'S
adoption [of the child]; and
S 96. Paragraph (f) of subdivision 2 of section 384-a of the social
services law, as added by chapter 457 of the laws of 1988, is amended to
read as follows:
(f) Nothing in this section shall be deemed to prohibit a social
services official or [a law guardian of] 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-custo-
dial parent or grandparent to seek visitation pursuant to applicable
provisions of law.
S. 5461 35
S 97. Paragraphs (b), (c) and (c-1) and subparagraph (iv) of paragraph
(l) of subdivision 3 of section 384-b of the social services law, para-
graph (b) as amended by section 55 of part A of chapter 3 of the laws of
2005, paragraph (c) as amended and paragraph (c-1) as added by chapter
185 of the laws of 2006, subparagraph (iv) of paragraph (l) as added by
chapter 7 of the laws of 1999, are amended to read as follows:
(b) A proceeding under this section may be originated by an authorized
agency or by a foster parent authorized to do so pursuant to section one
thousand eighty-nine of the family court act or by a relative with care
and custody of the child or, if an authorized agency ordered by the
court to originate a proceeding under this section fails to do so within
the time fixed by the court, by [a law guardian] THE CHILD'S ATTORNEY or
guardian ad litem [of the child] on the court's direction.
(c) Where a child was placed or continued in foster care pursuant to
article ten or ten-A of the family court act or section three hundred
fifty-eight-a of this chapter, a proceeding under this section shall be
originated in the family court in the county in which the proceeding
pursuant to article ten or ten-A of the family court act or section
three hundred fifty-eight-a of this chapter was last heard and shall be
assigned, wherever practicable, to the judge who last heard such
proceeding. Where multiple proceedings are commenced under this section
concerning a child and one or more siblings or half-siblings of such
child, placed or continued in foster care with the same commissioner
pursuant to section one thousand fifty-five or one thousand eighty-nine
of the family court act, all of such proceedings may be commenced joint-
ly in the family court in any county which last heard a proceeding under
article ten or ten-A of the family court act regarding any of the chil-
dren who are the subjects of the proceedings under this section. In such
instances, the case shall be assigned, wherever practicable, to the
judge who last presided over such proceeding. In any other case, a
proceeding under this section, including a proceeding brought in the
surrogate's court, shall be originated in the county where either of the
parents of the child reside at the time of the filing of the petition,
if known, or, if such residence is not known, in the county in which the
authorized agency has an office for the regular conduct of business or
in which the child resides at the time of the initiation of the proceed-
ing. To the extent possible, the court shall, when appointing [a law
guardian] AN ATTORNEY for the child, appoint [a law guardian] AN ATTOR-
NEY who has previously represented the child.
(c-1) Before hearing a petition under this section, the court in which
the termination of parental rights petition has been filed shall ascer-
tain whether the child is under the jurisdiction of a family court
pursuant to a placement in a child protective or foster care proceeding
or continuation in out-of-home care pursuant to a permanency hearing
and, if so, which court exercised jurisdiction over the most recent
proceeding. If the court determines that the child is under the juris-
diction of a different family court, the court in which the termination
of parental rights petition was filed shall stay its proceeding for not
more than thirty days and shall communicate with the court that exer-
cised jurisdiction over the most recent proceeding. The communication
shall be recorded or summarized on the record by the court in which the
termination of parental rights petition was filed. Both courts shall
notify the parties and [law guardian] CHILD'S ATTORNEY, if any, in their
respective proceedings and shall give them an opportunity to present
facts and legal argument or to participate in the communication prior to
the issuance of a decision on jurisdiction. The court that exercised
S. 5461 36
jurisdiction over the most recent proceeding shall determine whether it
will accept or decline jurisdiction over the termination of parental
rights petition. This determination of jurisdiction shall be incorpo-
rated into an order regarding jurisdiction that shall be issued by the
court in which the termination of parental rights petition was filed
within thirty days of such filing. If the court that exercised jurisdic-
tion over the most recent proceeding determines that it should exercise
jurisdiction over the termination of parental rights petition, the order
shall require that the petition shall be transferred to that court
forthwith but in no event more than thirty-five days after the filing of
the petition. The petition shall be assigned, wherever practicable, to
the judge who heard the most recent proceeding. If the court that exer-
cised jurisdiction over the most recent proceeding declines to exercise
jurisdiction over the adoption petition, the court in which the termi-
nation of parental rights petition was filed shall issue an order incor-
porating that determination and shall proceed forthwith.
(iv) In the event that the social services official or authorized
agency having care and custody of the child fails to file a petition to
terminate parental rights within sixty days of the time required by this
section, or within ninety days of a court direction to file a proceeding
not otherwise required by this section, such proceeding may be filed by
the foster parent of the child without further court order or by the
[law guardian] ATTORNEY FOR THE CHILD on the direction of the court. In
the event of such filing the social services official or authorized
agency having care and custody of the child shall be served with notice
of the proceeding and shall join the petition.
S 98. Subdivision 4 of section 409-e of the social services law, as
amended by chapter 725 of the laws of 1992, is amended to read as
follows:
4. In accordance with regulations of the department, relevant portions
of the assessment of the child and family circumstances, including but
not limited to the material described in paragraph (d) of subdivision
one of this section, and a complete copy of the family service plan,
established pursuant to subdivisions one and two, respectively, of this
section shall be given to the child's parent or guardian, counsel for
such parent or guardian, and the child's [law guardian] ATTORNEY, if
any, within ten days of preparation of any such plan.
S 99. Subdivision 1 of section 409-f of the social services law, as
amended by chapter 725 of the laws of 1992 and as designated by chapter
653 of the laws of 1995, is amended to read as follows:
1. With respect to each child described in subdivision one of section
four hundred nine-e of this title, the social services district shall
establish and maintain a uniform case record, consisting of the assess-
ment, the family service plan, descriptions of care, maintenance or
services provided to such child and family and the dates provided,
essential data relating to the identification and history of such child
and family, all official documents and records of any judicial or admin-
istrative proceedings relating to the district's contact with the child
and family, and such other records as the department may by regulation
require to adequately review case management by the districts. The
department shall by regulation specify the format and contents of the
uniform case record. Such regulation shall be developed [with the
participation of the child welfare standards advisory council estab-
lished pursuant to section four hundred nine-h of this chapter and] in
consultation with public and voluntary authorized agencies, citizens'
groups and concerned individuals and organizations, including the state
S. 5461 37
council on children and families. The uniform case record shall be main-
tained by the district in a manner consistent with the confidential
nature of such records and shall be made available in accordance with
applicable provisions of law. When a hearing has been requested in
accordance with section twenty-two of this chapter, a copy of the
portions of the record relevant to the hearing shall also be made avail-
able to the child's parent or guardian, counsel for the parent or guard-
ian, and, if participating in the hearing, the child's [law guardian]
ATTORNEY.
S 100. Subparagraphs (r) and (t) of paragraph (A) of subdivision 4 of
section 422 of the social services law, as amended by chapter 12 of the
laws of 1996, are amended to read as follows:
(r) in relation to a report involving a child in residential care, the
director or operator of the residential facility or program and, as
appropriate, the local social services commissioner or school district
placing the child, the division for youth, the department of education,
the commission on quality of care for the mentally disabled, the office
of mental health, the office of mental retardation and developmental
disabilities, and any [law guardian] ATTORNEY appointed to represent the
child whose appointment has been continued by a family court judge
during the term of the placement, subject to the limitations contained
in subdivisions nine and ten of this section and subdivision five of
section four hundred twenty-four-c of this title;
(t) [a law guardian] AN ATTORNEY FOR A CHILD, appointed pursuant to
the provisions of section [ten hundred] ONE THOUSAND sixteen of the
family court act, at any time such appointment is in effect, in relation
to any report in which the respondent in the proceeding in which the
[law guardian] ATTORNEY FOR A CHILD has been appointed is the subject or
another person named in the report, pursuant to sections [ten hundred]
ONE THOUSAND thirty-nine-a and [ten hundred] ONE THOUSAND fifty-two-a of
the family court act;
S 101. This act shall take effect immediately.
