Assembly Bill A2309

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

                                  2309

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 15, 2009
                               ___________

Introduced by M. of A. V. LOPEZ, CLARK -- Multi-Sponsored by -- M. of A.
  CHRISTENSEN, P. RIVERA, TOWNS -- read once and referred to the Commit-
  tee on Children and Families

AN  ACT  to  amend  the family court act and the social services law, in
  relation to clarifying the procedures for  the  emergency  removal  of
  children  from  their  homes  and  repealing certain provisions of the
  family court act and the social services law relating thereto

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

  Section  1.  Paragraphs (i) and (ii) of subdivision (a) of section 213
of the family court act, paragraph (i) as amended by chapter 727 of  the
laws of 1989 and paragraph (ii) as amended by chapter 920 of the laws of
1982, are amended to read as follows:
  (i)  the  number  of  children temporarily removed WITHOUT COURT ORDER
under section one thousand twenty-two [before the filing of a  petition,
the  number  of  children  temporarily removed without court order under
section ten hundred twenty-four] of this act, and  the  period  of  time
between such removal and the filing of a petition;
  (ii)    the  number  of children temporarily removed under section one
thousand twenty-seven [after the filing of a petition] and the period of
time that passed after such removal until its termination;
  S 2. Part 2 of article 10 of the family court act is  REPEALED  and  a
new part 2 is added to read as follows:
                                  PART 2
                TEMPORARY REMOVAL AND PRELIMINARY ORDERS
SECTION 1021. DEFINITIONS.
        1022. REMOVAL OF CHILDREN WITHOUT COURT ORDER.
        1023. NOTICE.
        1024. CHILDREN TEMPORARILY REMOVED.
        1025. PRELIMINARY HEARINGS.
        1026. IMMUNITY.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05728-01-9
              

A. 2309                             2

        1027. ORDERS.
        1028. APPLICATION TO RETURN CHILD TEMPORARILY REMOVED.
        1029. TEMPORARY ORDER OF PROTECTION.
        1030. ORDER OF VISITATION BY A RESPONDENT.
  S 1021. DEFINITIONS. FOR THE PURPOSES OF THIS PART:
  (A)  "CUSTODIAN"  SHALL  MEAN THE PARENT, GUARDIAN, CUSTODIAN OR OTHER
PERSON LEGALLY RESPONSIBLE FOR THE CHILD'S CARE, AS DEFINED IN  SUBDIVI-
SION (G) OF SECTION ONE THOUSAND TWELVE OF THIS ARTICLE.
  (B) "REMOVAL" SHALL MEAN THE PHYSICAL REMOVAL OF THE CHILD FROM HIS OR
HER HOME OR OTHER PLACE WHERE HE OR SHE IS RESIDING, OR THE HOLDING OF A
CHILD IN A HOSPITAL OR OTHER INSTITUTION, OR IN THE CARE OF A PHYSICIAN,
OR THE INTERFERENCE WITH THE CUSTODY OF A CUSTODIAN, WITHOUT THE CONSENT
OF THE CUSTODIAN.
  (C) "IMMINENT DANGER" SHALL MEAN A SUBSTANTIAL RISK OF SERIOUS HARM IN
THE IMMEDIATE FUTURE TO THE CHILD'S PHYSICAL OR MENTAL HEALTH. A FINDING
OF  IMMINENT DANGER SHALL ALSO CONSTITUTE A DETERMINATION THAT CONTINUA-
TION IN THE CHILD'S HOME WOULD BE CONTRARY TO THE BEST INTERESTS OF  THE
CHILD.
  (D)  "AUTHORIZED  CHILD  PROTECTIVE AGENT" SHALL MEAN A PEACE OFFICER,
ACTING PURSUANT TO HIS OR HER SPECIAL DUTIES, A POLICE  OFFICER,  A  LAW
ENFORCEMENT  OFFICIAL,  AN  AGENT OF A DULY INCORPORATED SOCIETY FOR THE
PREVENTION OF CRUELTY TO CHILDREN, OR A DESIGNATED EMPLOYEE OF A CITY OR
COUNTY DEPARTMENT OF SOCIAL SERVICES.
  (E) "PAROLE" SHALL MEAN THE TEMPORARY RELEASE OF A CHILD TO  A  PERSON
OR PERSONS. AN ORDER OF PAROLE IS NOT AN ORDER OF CUSTODY.
  (F)  "REMAND" SHALL MEAN THE TEMPORARY TRANSFER OF CARE AND CUSTODY OF
A CHILD TO AN AUTHORIZED AGENCY. AN ORDER OF REMAND IS NOT AN  ORDER  OF
PLACEMENT  IN  ACCORDANCE  WITH  SECTION ONE THOUSAND FIFTY-FIVE OF THIS
ARTICLE.
  S 1022. REMOVAL OF CHILDREN WITHOUT COURT  ORDER.  (A)  AN  AUTHORIZED
CHILD  PROTECTIVE AGENT WHO HAS REASONABLE CAUSE TO BELIEVE THAT A CHILD
SUFFERS FROM ABUSE OR NEGLECT BY THE CHILD'S  CUSTODIAN  TO  THE  EXTENT
THAT  IMMEDIATE  REMOVAL  OF  THE  CHILD  IS NECESSARY TO AVOID IMMINENT
DANGER TO THE CHILD MAY REMOVE OR DETAIN THE CHILD WITHOUT  COURT  ORDER
WHERE THERE IS NOT ENOUGH TIME TO FILE A PETITION AND HOLD A PRELIMINARY
HEARING  PURSUANT TO THIS PART AND THE PROVISION OF PREVENTIVE SERVICES,
INCLUDING, WHERE APPROPRIATE, ARRANGING CARE  FOR  A  CHILD  LEFT  UNAT-
TENDED,  WILL NOT OBVIATE THE NECESSITY FOR THE REMOVAL. THE FACT THAT A
CHILD IS IN A HOSPITAL, SCHOOL  OR  OTHER  INSTITUTION  SHALL  CREATE  A
REBUTTABLE PRESUMPTION THAT THERE IS SUFFICIENT TIME TO OBTAIN AN ORDER.
IN  ANY  OTHER  CASE,  A  CHILD MAY ONLY BE REMOVED PURSUANT TO AN ORDER
ISSUED PURSUANT TO SECTION ONE THOUSAND TWENTY-SEVEN OF THIS PART,  UPON
A  HEARING  HELD  PURSUANT  TO  SECTION ONE THOUSAND TWENTY-FIVE OF THIS
PART.
  (B)  IF A PHYSICIAN OR PERSON IN  CHARGE  OF  A  HOSPITAL  OR  SIMILAR
INSTITUTION  HAS REASONABLE CAUSE TO BELIEVE THAT A CHILD IS IN IMMINENT
DANGER IF THE CHILD REMAINS WITH OR RETURNS TO THE CUSTODIAN OR PLACE OF
RESIDENCE, SUCH PERSON SHALL TAKE ALL NECESSARY MEASURES TO PROTECT  THE
CHILD,  INCLUDING,  WHERE  APPROPRIATE,  DETAINING THE CHILD AND TURNING
CUSTODY OF THE CHILD OVER TO THE LOCAL CHILD PROTECTIVE  SERVICES.  SUCH
AUTHORITY  TO  DETAIN  THE  CHILD  SHALL EXPIRE AT 5:00 P.M. ON THE NEXT
COURT DAY, UNLESS EXTENDED BY AN ORDER ISSUED PURSUANT TO THIS PART.
  (C)  A PERSON REMOVING OR DETAINING A CHILD SHALL INFORM THE COURT AND
MAKE A REPORT PURSUANT TO  TITLE  SIX  OF  ARTICLE  SIX  OF  THE  SOCIAL
SERVICES  LAW NO LATER THAN THE NEXT COURT DAY. UPON BEING INFORMED THAT
THERE HAS BEEN AN EMERGENCY REMOVAL OR DETENTION OF A CHILD PURSUANT  TO

A. 2309                             3

THIS  PART,  AN  APPROPRIATE  PERSON  DESIGNATED BY THE COURT SHALL MAKE
EVERY REASONABLE EFFORT TO  COMMUNICATE  IMMEDIATELY  WITH  THE  CHILD'S
PARENTS AND CUSTODIANS, IF ANY, THE INFORMATION DESCRIBED IN SUBDIVISION
(D) OF THIS SECTION.
  (D)  IF  A  CHILD  IS  REMOVED  WITHOUT  COURT  ORDER PURSUANT TO THIS
SECTION, THE PERSON REMOVING THE CHILD SHALL, COINCIDENT  WITH  REMOVAL,
GIVE WRITTEN NOTICE TO THE CUSTODIAN OF:
  (I)  NAME,  TITLE,  ORGANIZATION,  ADDRESS AND TELEPHONE NUMBER OF THE
PERSON REMOVING THE CHILD;
  (II) THE FACILITY, ADDRESS, AND TELEPHONE NUMBER OF  THE  PLACE  WHERE
THE CHILD WILL BE TAKEN, IF AVAILABLE;
  (III) THE TELEPHONE NUMBER OF THE PERSON TO BE CONTACTED FOR IMMEDIATE
TELEPHONE CONTACT AND PROMPT VISITS WITH THE CHILD;
  (IV)  THE INFORMATION REQUIRED BY SUBDIVISION (A) OF SECTION ONE THOU-
SAND TWENTY-THREE OF THIS PART;
  (V) THE RIGHT OF THE CUSTODIAN TO APPLY TO FAMILY COURT FOR THE RETURN
OF THE CHILD PURSUANT TO SECTION ONE THOUSAND TWENTY-EIGHT OF THIS PART.
SUCH NOTICE SHALL BE PERSONALLY  SERVED  UPON  THE  CUSTODIAN  OR  OTHER
PERSON  PRESENT AT THE RESIDENCE OF THE CHILD AT THE TIME OF REMOVAL OR,
IF THE CUSTODIAN IS NOT PRESENT AT THAT TIME, A COPY OF THE NOTICE SHALL
BE AFFIXED TO THE DOOR OF SUCH RESIDENCE AND A COPY SHALL BE  MAILED  TO
SUCH  PERSON AT HIS OR HER LAST KNOWN RESIDENCE WITHIN TWENTY-FOUR HOURS
AFTER THE REMOVAL OF THE CHILD.   IF THE PLACE OF  REMOVAL  IS  NOT  THE
CHILD'S  RESIDENCE, A COPY OF THE NOTICE SHALL BE PERSONALLY SERVED UPON
THE CUSTODIAN FORTHWITH, OR AFFIXED TO THE DOOR OF THE CHILD'S RESIDENCE
AND MAILED TO THE CUSTODIAN AT HIS OR HER LAST KNOWN PLACE OF  RESIDENCE
WITHIN  TWENTY-FOUR  HOURS  AFTER  THE REMOVAL.   THE FORM OF THE NOTICE
SHALL BE PRESCRIBED BY THE CHIEF ADMINISTRATOR OF THE COURTS. AN AFFIDA-
VIT OF SERVICE SHALL BE FILED WITH THE CLERK OF THE COURT  WITHIN  TWEN-
TY-FOUR  HOURS  OF  SERVING SUCH NOTICE, EXCLUSIVE OF WEEKENDS AND HOLI-
DAYS.  FAILURE TO FILE THE AFFIDAVIT SHALL NOT RESULT IN THE  RETURN  OF
THE  CHILD,  BUT THE COURT MAY LEVY A FINE FOR SUCH FAILURE IN A SUM NOT
TO EXCEED ONE HUNDRED DOLLARS FOR EACH OCCURRENCE.
  (E) WHENEVER A CHILD PROTECTIVE SERVICE REMOVES A CHILD AND THE CUSTO-
DIAN OF THE CHILD IS NOT PRESENT, THE SERVICE SHALL  IMMEDIATELY  NOTIFY
THE  LOCAL  POLICE  STATION CLOSEST TO THE CHILD'S HOME OF SUCH REMOVAL,
AND SHALL PROVIDE THEM WITH A COPY OF THE NOTICE  REQUIRED  PURSUANT  TO
SUBDIVISION  (D)  OF  THIS  SECTION.  UPON REQUEST BY THE CUSTODIAN, THE
POLICE SHALL PROVIDE SUCH PERSON WITH A COPY OF THE NOTICE.
  S 1023. NOTICE. (A) A PERSON APPLYING FOR AN ORDER  OF  REMOVAL  SHALL
MAKE  EVERY REASONABLE EFFORT TO INFORM THE CHILD'S PARENTS, THE CHILD'S
CUSTODIAN, IF ANY, AND  ANY  ATTORNEY  WHO  HAS  APPEARED  FOR  OR  BEEN
ASSIGNED  TO  REPRESENT A PARENT OR CUSTODIAN IN A PROCEEDING UNDER THIS
ACT, OR WHO HAS BEEN RETAINED BY SUCH PERSON IF SUCH FACT  IS  KNOWN  TO
THE PERSON APPLYING FOR THE ORDER, OF THE INTENT TO APPLY FOR THE ORDER,
OF  THE  DATE AND TIME THAT THE APPLICATION WILL BE MADE, THE ADDRESS OF
THE COURT WHERE THE APPLICATION WILL BE MADE, AND OF THE  RIGHT  OF  THE
CUSTODIAN TO BE PRESENT AND TO BE REPRESENTED BY COUNSEL AT THE APPLICA-
TION  AND AT ANY HEARING HELD THEREON. IF THE PARENTS AND CUSTODIANS, IF
ANY, OF THE CHILD ARE NOT PRESENT IN THE COURT WHEN THE APPLICATION  FOR
A REMOVAL ORDER IS MADE, THE COURT SHALL DESIGNATE AN APPROPRIATE PERSON
TO MAKE EVERY REASONABLE EFFORT TO NOTIFY THE PARENTS AND CUSTODIAN. THE
COURT  MAY  DESIGNATE  THE  TYPE  OF EFFORTS WHICH SHALL BE MADE AND THE
PERSON WHO SHALL MAKE SUCH EFFORTS.
  (B) IF THE COURT DIRECTS THE REMOVAL OF A CHILD, AND  THE  PARENTS  OR
CUSTODIANS ARE NOT PRESENT IN THE COURT, THE COURT SHALL ISSUE A SUMMONS

A. 2309                             4

PURSUANT TO SECTION ONE THOUSAND THIRTY-FIVE OF THIS ARTICLE, RETURNABLE
WITHIN  THREE  COURT  DAYS,  AND  SHALL  ALSO  DIRECT THE SERVICE OF THE
SUMMONS, OF A NOTICE PURSUANT TO SUBDIVISION (D) OF SECTION ONE THOUSAND
TWENTY-TWO  OF  THIS PART, AND THE PETITION, IF ANY, COINCIDENT WITH THE
REMOVAL. AN AFFIDAVIT OF SERVICE SHALL BE FILED WITH THE  CLERK  OF  THE
COURT  WITHIN  TWENTY-FOUR  HOURS  OF  SERVING SUCH NOTICE, EXCLUSIVE OF
WEEKENDS AND HOLIDAYS. FAILURE TO SERVE THE SUMMONS OR FILE THE  AFFIDA-
VIT SHALL NOT NECESSARILY RESULT IN THE DISMISSAL OF THE PETITION.
  S  1024.    CHILDREN  TEMPORARILY  REMOVED.  IF A CHILD IS TEMPORARILY
REMOVED OR DETAINED PURSUANT TO SECTION ONE THOUSAND TWENTY-TWO OF  THIS
PART, THE PERSON OR AGENCY REMOVING THE CHILD SHALL, UNLESS THE CHILD IS
SOONER  RETURNED  TO  THE  CUSTODIAN, CONTACT THE LOCAL CHILD PROTECTIVE
SERVICE AND TURN THE CHILD OVER TO SUCH SERVICE, WHICH SHALL:
  (A)  BRING THE CHILD IMMEDIATELY TO A PLACE APPROVED FOR SUCH  PURPOSE
BY  THE LOCAL SOCIAL SERVICES DEPARTMENT OR TO A SUITABLE FAMILY MEMBER,
UNLESS THE PERSON IS A PHYSICIAN TREATING THE CHILD AND THE CHILD IS  OR
WILL BE PRESENTLY ADMITTED TO A HOSPITAL;
  (B)  FILE AN APPLICATION FOR AN ORDER PURSUANT TO SECTION ONE THOUSAND
TWENTY-FIVE OF THIS PART NO LATER THAN THE NEXT COURT DAY; AND
  (C)    PROVIDE  THE  NOTICE REQUIRED BY SUBDIVISION (D) OF SECTION ONE
THOUSAND TWENTY-TWO OF THIS PART.
  S 1025. PRELIMINARY HEARINGS. (A) A PERSON AUTHORIZED TO FILE A  CHILD
PROTECTIVE  PETITION  MAY  APPLY,  IN WRITING, TO THE FAMILY COURT FOR A
PRELIMINARY HEARING TO REQUEST AN ORDER DIRECTING THE TEMPORARY  REMOVAL
OR  REMAND  OF  A CHILD PURSUANT TO THIS PART, WHETHER OR NOT A PETITION
HAS BEEN FILED, BY  A  VERIFIED  APPLICATION  ALLEGING  THAT  THE  CHILD
SUFFERS  FROM ABUSE OR NEGLECT BY THE CHILD'S PARENT OR CUSTODIAN TO THE
EXTENT THAT THE IMMEDIATE REMOVAL OF THE CHILD  IS  NECESSARY  TO  AVOID
IMMINENT  DANGER  TO THE CHILD'S LIFE OR HEALTH. SUCH APPLICATION MAY BE
CONTAINED IN A VERIFIED STATEMENT IN  THE  PETITION  SETTING  FORTH  THE
CIRCUMSTANCES WHICH CONSTITUTE IMMINENT DANGER.
  (B)  UPON THE FILING OF A PETITION UNDER THIS ARTICLE, THE COURT SHALL
DETERMINE  WHETHER  OR NOT A PRELIMINARY HEARING IS NECESSARY TO PROTECT
THE CHILD PENDING A FACT-FINDING HEARING.   UPON  FINDING  THAT  SUCH  A
HEARING  IS  NECESSARY,  OR UPON THE APPLICATION OF ANY PARTY OR THE LAW
GUARDIAN, OR IN ANY CASE IN WHICH A CHILD HAS BEEN REMOVED  PURSUANT  TO
SECTION  ONE  THOUSAND TWENTY-TWO OF THIS PART, OR UPON THE FILING OF AN
APPLICATION FOR A HEARING PURSUANT TO SUBDIVISION (A) OF  THIS  SECTION,
THE  COURT  SHALL  HOLD  SUCH A HEARING AND SHALL INSURE THAT THE NOTICE
REQUIRED BY SECTION ONE THOUSAND TWENTY-THREE OF THIS PART WAS PROVIDED.
  (C)  AT THE PRELIMINARY HEARING, THE COURT SHALL DETERMINE:
  (I) WHETHER OR NOT THE CHILD  IS  IN  IMMINENT  DANGER  IF  THE  CHILD
REMAINS WITH OR RETURNS TO THE PARENT OR CUSTODIAN; AND, IF SO
  (II) WHETHER OR NOT REASONABLE EFFORTS WERE MADE, PRIOR TO THE DATE OF
THE  APPLICATION  FOR  THE ORDER OF REMOVAL, TO PREVENT OR ELIMINATE THE
NEED FOR REMOVAL OF THE CHILD FROM THE HOME; AND
  (III) WHETHER THE CHILD WOULD BE IN IMMINENT DANGER IF  SUCH  SERVICES
OR ASSISTANCE ARE DELAYED; AND, IF SO
  (IV)  WHETHER THE NEED TO REMOVE OR DETAIN THE CHILD MAY BE ELIMINATED
BY THE REMOVAL OF A PERSON OR PERSONS FROM THE RESIDENCE OF THE CHILD.
  (D) IF THE COURT FINDS THAT THE CHILD WOULD BE IN IMMINENT  DANGER  IF
THE  CHILD  REMAINED  IN  OR  RETURNED TO THE HOME, THE COURT SHALL ALSO
DETERMINE WHETHER THERE IS A FAMILY MEMBER OR OTHER SUITABLE PERSON  WHO
IS  ABLE  AND  WILLING  TO PROVIDE ADEQUATE CARE FOR THE CHILD PENDING A
FACT-FINDING HEARING, AND WHETHER REASONABLE EFFORTS WERE MADE TO LOCATE
SUCH PERSONS.

A. 2309                             5

  (E) IF THE COURT ISSUES AN ORDER OF REMOVAL AND NO PETITION  HAS  BEEN
FILED  UNDER  THIS  PART, THE LOCAL CHILD PROTECTIVE AGENCY SHALL FILE A
PETITION WITHIN THREE DAYS FROM THE ISSUING OF THE ORDER.
  S  1026.  IMMUNITY.  ANY PERSON ACTING IN GOOD FAITH IN THE REMOVAL OR
HOLDING OF A CHILD SHALL HAVE IMMUNITY FROM LIABILITY, CIVIL  OR  CRIMI-
NAL,  THAT  MIGHT  OTHERWISE  BE INCURRED OR IMPOSED AS A RESULT OF SUCH
REMOVAL OR HOLDING. ANY INSTITUTION ACTING IN GOOD FAITH AND IN  COMPLI-
ANCE  WITH  THE  PROVISIONS  OF THIS PART IN THE REMOVAL OR HOLDING OF A
CHILD SHALL HAVE IMMUNITY FROM LIABILITY, CIVIL OR CRIMINAL, THAT  MIGHT
OTHERWISE BE INCURRED OR IMPOSED AS A RESULT OF SUCH REMOVAL OR HOLDING.
FOR  THE  PURPOSES  OF  THIS  SECTION,  THE ACTIONS OF AN EMPLOYEE OF AN
INSTITUTION SHALL BE PRESUMED TO BE IN ACCORDANCE WITH THE  POLICIES  OF
THE AGENCY.
  S  1027.  ORDERS.  (A) AN ORDER OF REMOVAL SHALL BE ISSUED ONLY UPON A
HEARING HELD PURSUANT TO SECTION ONE THOUSAND TWENTY-FIVE OF THIS PART.
  (B) IF THE COURT DETERMINES THAT REMOVAL OF THE CHILD IS NOT NECESSARY
TO PREVENT IMMINENT DANGER TO THE CHILD, THE COURT SHALL, IF  THE  CHILD
HAS BEEN REMOVED, RETURN OR PAROLE THE CHILD TO THE PARENT OR CUSTODIAN.
THE  COURT  MAY IMPOSE SUCH CONDITIONS AS IT DETERMINES ARE NECESSARY TO
AVOID IMMINENT DANGER TO THE CHILD.
  (C) IF THE COURT DETERMINES THAT SERVICES OR ASSISTANCE TO  THE  CHILD
OR  THE  CHILD'S FAMILY WILL PREVENT OR ELIMINATE THE NEED TO REMOVE THE
CHILD FROM THE CHILD'S HOME, THE COURT SHALL ORDER THE CHILD  PROTECTIVE
AGENCY  TO  PROVIDE  OR  ARRANGE  FORTHWITH  FOR  THE  PROVISION OF SUCH
SERVICES OR ASSISTANCE. THE COURT SHALL ALSO ORDER SERVICES  OR  ASSIST-
ANCE  WHERE  THEY  ARE  NECESSARY TO ENABLE THE RETURN OF THE CHILD AT A
LATER TIME.
  (D) IF THE COURT DETERMINES THAT ORDERING THE REMOVAL OF A  PERSON  OR
PERSONS  FROM  THE  RESIDENCE OF THE CHILD WILL PREVENT OR ELIMINATE THE
NEED FOR THE REMOVAL OF THE CHILD, THE COURT  SHALL  ISSUE  A  TEMPORARY
ORDER OF PROTECTION PURSUANT TO SECTION ONE THOUSAND TWENTY-NINE OF THIS
PART,  DIRECTING  THE REMOVAL OF SAID PERSON OR PERSONS FROM THE CHILD'S
RESIDENCE.
  (E) IF THE COURT DETERMINES THAT:
  (I) REMOVAL OF THE CHILD IS NECESSARY TO AVOID IMMINENT DANGER TO  THE
CHILD; AND
  (II) THE PROVISION OF SERVICES OR ASSISTANCE WILL NOT PREVENT OR ELIM-
INATE THE CURRENT NEED FOR SUCH REMOVAL; AND
  (III)  ORDERING  THE REMOVAL OF A PERSON OR PERSONS FROM THE RESIDENCE
OF THE CHILD WILL NOT ELIMINATE THE NEED FOR REMOVAL;  THE  COURT  SHALL
DIRECT THE REMOVAL OF THE CHILD FROM THE CHILD'S RESIDENCE.
  (F)  IF THE COURT ORDERS THE REMOVAL OF THE CHILD, AND DETERMINES THAT
THERE IS A FAMILY MEMBER OR OTHER SUITABLE PERSON WHO IS ABLE AND  WILL-
ING  TO  PROVIDE  ADEQUATE CARE FOR THE CHILD AND KEEP SIBLINGS TOGETHER
PENDING A FACT-FINDING HEARING, THE COURT SHALL, IF THE PARENT OR CUSTO-
DIAN CONSENTS, AND MAY, IF THE PARENT OR  CUSTODIAN  DOES  NOT  CONSENT,
ORDER  THE CHILD PAROLED TO SAID FAMILY MEMBER OR OTHER SUITABLE PERSON,
OR REMANDED TO THE LOCAL DEPARTMENT OF SOCIAL SERVICES  TO  RESIDE  WITH
SUCH  PERSON,  UPON  SUCH  CONDITIONS  AS  IT DEEMS NECESSARY, INCLUDING
SUPERVISION. IN ANY OTHER CASE, THE COURT SHALL  PAROLE  OR  REMAND  THE
CHILD IN ACCORDANCE WITH SUBDIVISION (J) OF THIS SECTION AND SECTION ONE
THOUSAND  SEVENTEEN  OF THIS ARTICLE. UNLESS THE COURT ORDERS OTHERWISE,
THE PERSON TO WHOM THE CHILD IS PAROLED  SHALL  HAVE  THE  AUTHORITY  TO
OBTAIN  ROUTINE AND EMERGENCY MEDICAL TREATMENT FOR THE CHILD AND ENROLL
THE CHILD IN SCHOOL.

A. 2309                             6

  (G) IF THE COURT ORDERS THE REMOVAL OF A CHILD AND DETERMINES THAT  IT
IS  NECESSARY  TO  TEMPORARILY REMAND THE CHILD, THE COURT SHALL SPECIFY
THE LOCAL COMMISSIONER OF SOCIAL SERVICES OR OTHER FACILITY TO WHICH THE
CHILD IS TO BE BROUGHT. THE COURT MAY ORDER THE  LOCAL  COMMISSIONER  OF
SOCIAL  SERVICES  OR  OTHER  FACILITY  TO  HAVE  THE CHILD RESIDE WITH A
SPECIFIC PERSON OR PERSONS WHO HAVE BEEN  CERTIFIED  OR  APPROVED,  UPON
SUCH CONDITIONS, INCLUDING SUPERVISION, AS IT DEEMS NECESSARY.
  (H)  IF  THE  COURT  ORDERS THE REMOVAL OF A CHILD AND DETERMINES THAT
REASONABLE EFFORTS WERE NOT MADE TO LOCATE  A  FAMILY  MEMBER  OR  OTHER
SUITABLE  PERSON,  THE  COURT SHALL ORDER THE CHILD PROTECTIVE AGENCY TO
MAKE SUCH EFFORTS FORTHWITH.
  (I) WHEN THE COURT ORDERS THE REMOVAL OF  A  CHILD,  THE  COURT  SHALL
ORDER  PROMPT, REASONABLE AND REGULAR VISITATION PURSUANT TO SECTION ONE
THOUSAND THIRTY OF THIS PART.
  (J) WHEN A SOCIAL SERVICES OFFICIAL REMOVES A CHILD PURSUANT  TO  THIS
PART,  SUCH  OFFICIAL  SHALL  PLACE  SUCH  CHILD  WITH  HIS OR HER MINOR
SIBLINGS OR HALF-SIBLINGS WHO HAVE BEEN OR  ARE  BEING  REMANDED  TO  OR
PLACED  IN THE CARE AND CUSTODY OF SUCH OFFICIAL UNLESS, IN THE JUDGMENT
OF SUCH OFFICIAL, SUCH PLACEMENT IS CONTRARY TO THE  BEST  INTERESTS  OF
THE  CHILDREN.    PLACEMENT  WITH  SIBLINGS  OR  HALF-SIBLINGS  SHALL BE
PRESUMPTIVELY IN THE CHILD'S BEST INTERESTS UNLESS SUCH PLACEMENT  WOULD
BE CONTRARY TO THE CHILD'S HEALTH, SAFETY, OR WELFARE. IF SUCH PLACEMENT
IS  NOT  IMMEDIATELY  AVAILABLE AT THE TIME OF THE REMOVAL OF THE CHILD,
SUCH OFFICIAL SHALL PROVIDE OR ARRANGE FOR THE PROVISION OF SUCH  PLACE-
MENT WITHIN THIRTY DAYS.
  (K)  NOTHING  IN  THIS  PART SHALL BE DEEMED TO REQUIRE THAT THE COURT
ORDER THE TEMPORARY REMOVAL OF  A  CHILD  AS  A  CONDITION  OF  ORDERING
SERVICES OR ASSISTANCE.
  (L)  IF  THE COURT DIRECTS REMOVAL OF A CHILD AND THE PARENT OR CUSTO-
DIAN OF THE CHILD WAS NOT PRESENT AT THE COURT AT THE TIME  THE  REMOVAL
WAS  ORDERED,  THE  ORDER OF REMOVAL SHALL BE EFFECTIVE UNTIL THE RETURN
DATE OF THE SUMMONS. THE SUMMONS AND PETITION, TOGETHER WITH THE  NOTICE
REQUIRED  BY  SUBDIVISION (D) OF SECTION ONE THOUSAND TWENTY-TWO OF THIS
PART, SHALL BE SERVED UPON SUCH CUSTODIAN COINCIDENT WITH  THE  REMOVAL.
IF  THE  CUSTODIAN  IS NOT PRESENT WHEN THE CHILD IS REMOVED, SERVICE OF
THE SUMMONS AND PETITION SHALL BE GOVERNED BY SECTION ONE THOUSAND THIR-
TY-SIX OF THIS ARTICLE.
  (M) IN ALL CASES INVOLVING ABUSE THE COURT SHALL  ORDER,  AND  IN  ALL
CASES INVOLVING NEGLECT THE COURT MAY ORDER, AN EXAMINATION OF THE CHILD
PURSUANT  TO SECTION TWO HUNDRED FIFTY-ONE OF THIS ACT OR BY A PHYSICIAN
APPOINTED OR DESIGNATED FOR THE PURPOSE BY THE COURT. AS  PART  OF  SUCH
EXAMINATION,  THE  PHYSICIAN  SHALL  ARRANGE TO HAVE COLORED PHOTOGRAPHS
TAKEN AS SOON AS PRACTICAL OF THE AREAS OF TRAUMA VISIBLE ON SUCH  CHILD
AND  MAY,  IF  INDICATED,  ARRANGE  TO  HAVE  A RADIOLOGICAL EXAMINATION
PERFORMED ON THE CHILD. THE PHYSICIAN, ON THE COMPLETION OF  SUCH  EXAM-
INATION,  SHALL  FORWARD  THE  RESULTS  THEREOF  TOGETHER WITH THE COLOR
PHOTOGRAPHS TO THE  COURT  ORDERING  SUCH  EXAMINATION.  THE  COURT  MAY
DISPENSE  WITH  SUCH  EXAMINATION IN THOSE CASES WHICH WERE COMMENCED ON
THE BASIS OF A PHYSICAL  EXAMINATION  BY  A  PHYSICIAN.  UNLESS  COLORED
PHOTOGRAPHS  HAVE  ALREADY  BEEN  TAKEN  OR UNLESS THERE ARE NO AREAS OF
VISIBLE TRAUMA, THE COURT SHALL  ARRANGE  TO  HAVE  COLORED  PHOTOGRAPHS
TAKEN EVEN IF THE EXAMINATION IS DISPENSED WITH.
  (N)  THE  COURT  SHALL  STATE THE GROUNDS FOR ANY DECISIONS AND ORDERS
ISSUED PURSUANT TO THIS SECTION, AND SHALL LIST THE  REASONABLE  EFFORTS
WHICH IT FOUND WERE MADE TO AVOID REMOVAL AND TO LOCATE FAMILY MEMBERS.

A. 2309                             7

  S  1028.  APPLICATION  TO  RETURN  CHILD TEMPORARILY REMOVED. UPON THE
APPLICATION OF THE PARENT, CUSTODIAN, OR LAW GUARDIAN OF A CHILD  TEMPO-
RARILY  REMOVED  UNDER  THIS  PART,  WHETHER  OR NOT A PETITION HAS BEEN
FILED, THE COURT SHALL HOLD A HEARING TO  DETERMINE  WHETHER  THE  CHILD
SHOULD BE RETURNED (A) IF THERE HAS NOT BEEN A HEARING 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  HAD  AN
ADEQUATE  OPPORTUNITY  TO  BE  PRESENT,  OR (B) UPON GOOD CAUSE SHOWN. A
HEARING UNDER SUBDIVISION (A) OF THIS SECTION SHALL BE HELD WITHIN THREE
COURT DAYS OF THE APPLICATION AND SHALL NOT  BE  ADJOURNED  WITHOUT  THE
CONSENT  OF  THE CUSTODIAN. 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  1029. TEMPORARY ORDER OF PROTECTION. (A) THE FAMILY COURT, UPON THE
APPLICATION OF ANY PERSON WHO MAY  ORIGINATE  A  PROCEEDING  UNDER  THIS
ARTICLE,  OR  ANY  PARTY  OR THE LAW GUARDIAN, FOR GOOD CAUSE SHOWN, MAY
ISSUE A TEMPORARY ORDER OF PROTECTION, BEFORE OR  AFTER  THE  FILING  OF
SUCH PETITION, WHICH MAY CONTAIN ANY OF THE PROVISIONS AUTHORIZED ON THE
MAKING OF AN ORDER OF PROTECTION UNDER SECTION ONE THOUSAND FIFTY-SIX OF
THIS  ARTICLE.  IF SUCH ORDER IS GRANTED BEFORE THE FILING OF A PETITION
AND A PETITION IS NOT FILED UNDER THIS SECTION WITHIN TEN DAYS FROM  THE
GRANTING OF SUCH ORDER, THE ORDER SHALL BE VACATED.
  (B) A TEMPORARY ORDER OF PROTECTION IS NOT A FINDING OF WRONGDOING.
  (C)  THE  COURT MAY ISSUE OR EXTEND A TEMPORARY ORDER OF PROTECTION EX
PARTE OR ON NOTICE SIMULTANEOUSLY WITH THE ISSUANCE OF A WARRANT DIRECT-
ING THAT THE RESPONDENT BE ARRESTED AND BROUGHT BEFORE THE COURT  PURSU-
ANT TO SECTION ONE THOUSAND THIRTY-SEVEN OF THIS ARTICLE.
  (D)  NOTHING IN THIS SECTION SHALL BE CONSTRUED TO AUTHORIZE THE COURT
TO AWARD PERMANENT CUSTODY OF A CHILD TO A PARENT OR  RELATIVE  PURSUANT
TO  A  TEMPORARY ORDER OF PROTECTION OR LIMIT ANY POWER SET FORTH IN ANY
OTHER SECTION OF THIS PART.
  S 1030. ORDER OF VISITATION BY A RESPONDENT. (A)  A  RESPONDENT  SHALL
HAVE  THE  RIGHT TO REASONABLE AND REGULARLY SCHEDULED VISITATION WITH A
CHILD IN THE TEMPORARY CUSTODY OF A SOCIAL SERVICES OFFICIAL PURSUANT TO
THIS PART OR PURSUANT TO SUBDIVISION (D) OF SECTION ONE THOUSAND  FIFTY-
ONE OF THIS ARTICLE, UNLESS LIMITED BY AN ORDER OF THE FAMILY COURT.
  (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 APPOINTED TO REPRESENT THE CHILD, WHO  SHALL  BE
AFFORDED AN OPPORTUNITY TO BE HEARD THEREON.
  (C)  A  RESPONDENT SHALL BE GRANTED REASONABLE AND REGULARLY SCHEDULED
VISITATION UNLESS THE COURT FINDS THAT THE CHILD'S LIFE OR HEALTH  WOULD
BE  ENDANGERED  THEREBY,  BUT  THE  COURT MAY ORDER VISITATION UNDER THE
SUPERVISION OF AN EMPLOYEE OF A LOCAL SOCIAL SERVICES DEPARTMENT UPON  A
FINDING  THAT  SUCH SUPERVISED VISITATION IS IN THE BEST INTEREST OF THE
CHILD.
  (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 GUAR-

A. 2309                             8

DIAN,  AND  UPON NOTICE OF SUCH APPLICATION TO ALL OTHER PARTIES AND THE
CHILD'S LAW GUARDIAN, WHO SHALL BE AFFORDED AN OPPORTUNITY TO  BE  HEARD
THEREON.
  (E) AN ORDER MADE UNDER THIS SECTION SHALL TERMINATE UPON THE ENTRY OF
AN ORDER OF DISPOSITION PURSUANT TO PART FIVE OF THIS ARTICLE.
  S 3. Subdivisions (a) and (e) of section 1031 of the family court act,
subdivision (a) as added by chapter 962 of the laws of 1970 and subdivi-
sion  (e)  as  added  by chapter 171 of the laws of 1990, are amended to
read as follows:
  (a) A proceeding under this article is originated by the filing  of  a
petition  [in  which] ALLEGING (I)  facts sufficient to establish that a
child is an abused or neglected child under this article  [are  alleged]
AND  (II)  THE PREVENTIVE SERVICES WHICH WERE OFFERED TO THE RESPONDENT,
THAT SUCH SERVICES WERE APPROPRIATE, AND THE REASON  WHY  SUCH  SERVICES
WERE  INEFFECTIVE.  A  RESPONDENT  MAY,  BY WRITTEN DEMAND ON EIGHT DAYS
NOTICE, REQUIRE THE PETITIONER TO ESTABLISH THE ALLEGATIONS BY AFFIDAVIT
OF A WITNESS WHOSE TESTIMONY WOULD BE ADMISSIBLE AT A FACT-FINDING HEAR-
ING UNDER THIS ARTICLE.
  (e) In any case where a child has been removed [prior to the filing of
a petition] WITHOUT COURT ORDER, the petition alleging abuse or  neglect
of said child shall state the date and time of the removal, the SPECIFIC
FACTS CONSTITUTING THE circumstances necessitating such removal, [wheth-
er  the removal occurred pursuant to section ten hundred twenty-one, ten
hundred twenty-two or ten hundred twenty-four of this act,  and  if  the
removal occurred without court order,] the [reason] SPECIFIC FACTS SHOW-
ING  THAT there was not sufficient time to obtain a court order pursuant
to section [ten hundred] ONE THOUSAND twenty-two of this act.
  S 4. Section 417 of the social services law is REPEALED.
  S 5. Section 419 of the social services law, as amended by chapter  12
of the laws of 1996, is amended to read as follows:
  S  419. Immunity from liability.  Any person, official, or institution
participating in good faith in the providing of a  service  pursuant  to
section  four hundred twenty-four of this title, the making of a report,
the taking of photographs[, the removal or keeping of a  child  pursuant
to  this title], or the disclosure of child protective services informa-
tion in compliance with sections twenty,  four  hundred  twenty-two  and
four  hundred  twenty-two-a of this chapter shall have immunity from any
liability, civil or criminal, that might otherwise result by  reason  of
such  actions. For the purpose of any proceeding, civil or criminal, the
good faith of any such person,  official,  or  institution  required  to
report  cases  of  child  abuse  or  maltreatment or providing a service
pursuant to section four hundred twenty-four or the disclosure of  child
protective services information in compliance with sections twenty, four
hundred  twenty-two  and four hundred twenty-two-a of this chapter shall
be presumed, provided such person, official or institution was acting in
discharge of their duties and within the scope of their employment,  and
that  such liability did not result from the willful misconduct or gross
negligence of such person, official or institution.
  S 6. Section 383-b of the social services law, as amended  by  chapter
570 of the laws of 1986, is amended to read as follows:
  S  383-b.  Medical treatment for abused or neglected children; consent
of commissioners.   The local commissioner of  social  services  or  the
local  commissioner  of  health  may give effective consent for medical,
dental, health and hospital services for any child who has been found by
the family court to be an abused child or a neglected child, or who  has
been  taken into or kept in protective custody or removed from the place

A. 2309                             9

where he OR SHE is residing, or who has been placed in  the  custody  of
such  commissioner,  pursuant to [section four hundred seventeen of this
chapter or] section one thousand twenty-two, section one thousand  twen-
ty-four or section one thousand twenty-seven of the family court act.
  S 7. This act shall take effect on the one hundred twentieth day after
it shall have become a law.