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

                                  5508

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 13, 2009
                               ___________

Introduced  by  M.  of  A.  ERRIGO,  BUTLER, FINCH, McDONOUGH, WALKER --
  Multi-Sponsored by -- M.  of A. CALHOUN -- read once and  referred  to
  the Committee on Children and Families

AN  ACT to amend the family court act, in relation to preliminary orders
  directing the temporary removal of a child and in relation to emergen-
  cy removal of a child without court order

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

  Section  1.  Subdivisions  (a)  and  (c) of section 1022 of the family
court act, subdivision (a) as amended by section 13 of part A of chapter
3 of the laws of 2005 and subdivision (c) as amended by chapter  776  of
the laws of 1987, are amended to read as follows:
  (a)  (i)  The  family court may enter an order directing the temporary
removal of a child from the place where he or she is residing before the
filing of a petition under this article, [if (A)  the  parent  or  other
person  legally  responsible  for  the child's care is absent or, though
present, was asked and refused to consent to the  temporary  removal  of
the child and was informed of an intent to apply for an order under this
section  and of the information required by section one thousand twenty-
three of this part; and
  (B) the child appears so to suffer from the abuse or neglect of his or
her parent or other person legally responsible for his or her care  that
his  or  her  immediate removal is necessary to avoid imminent danger to
the child's life or health; and
  (C) there is not enough time to file a petition and hold a preliminary
hearing under section one thousand twenty-seven of this part] ONLY WHERE
THERE IS CLEAR AND CONVINCING EVIDENCE THAT THERE IS  IMMINENT  RISK  TO
THE  CHILD'S  LIFE,  HEALTH  OR  WELFARE, OR THE CHILD MAY BE SUBJECT TO
SEXUAL ABUSE.
  (ii) When a child protective agency applies to a court for the immedi-
ate removal of a child pursuant to this  subdivision,  the  court  shall
calendar  the  matter  for  that  day  and  shall continue the matter on
successive subsequent court days, if necessary, until a decision is made
by the court.

              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05759-01-9

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  (iii) In determining whether temporary removal of the child is  neces-
sary  to  avoid  imminent  risk to the child's life or health, the court
shall consider and determine in its order whether  continuation  in  the
child's  home  would  be contrary to the best interests of the child and
where  appropriate,  whether  reasonable  efforts were made prior to the
date of application for the order directing such  temporary  removal  to
prevent or eliminate the need for removal of the child from the home. If
the court determines that reasonable efforts to prevent or eliminate the
need  for  removal of the child from the home were not made but that the
lack of such efforts was appropriate under the circumstances, the  court
order shall include such a finding.
  (iv)  If  the  court  determines that reasonable efforts to prevent or
eliminate the need for removal of the child from the home were not  made
but  that  such  efforts  were  appropriate under the circumstances, the
court shall order the child protective agency to provide or arrange  for
the provision of appropriate services or assistance to the child and the
child's  family pursuant to section one thousand fifteen-a of this arti-
cle or subdivision (c) of this section.
  (v) The court shall also consider and determine whether imminent  risk
to the child would be eliminated by the issuance of a temporary order of
protection,  pursuant  to section one thousand twenty-nine of this part,
directing the removal of a person or persons from the child's residence.
  (vi) Any order directing the temporary removal of a child pursuant  to
this section shall state the court's findings with respect to the neces-
sity  of such removal, whether the respondent was present at the hearing
and, if not, what notice the respondent was given of the hearing, wheth-
er the respondent was represented by counsel, and, if not,  whether  the
respondent waived his or her right to counsel.
  (vii) At the conclusion of a hearing where it has been determined that
a child should be removed from his or her parent or other person legally
responsible, the court shall set the date certain for an initial perman-
ency hearing pursuant to paragraph two of subdivision (a) of section one
thousand  eighty-nine of this act. The date certain shall be included in
the written order issued pursuant to subdivision (b) of this section and
shall set forth the date certain scheduled for the permanency hearing.
  (c) The family court, before the filing of a petition under this arti-
cle, may enter an order authorizing the provision of services or assist-
ance, including authorizing a physician or hospital to provide emergency
medical or surgical procedures, if (i) such procedures are necessary  to
safeguard the life [or health] of the child; and
  (ii)  there  is not enough time to file a petition and hold a prelimi-
nary hearing under section one thousand twenty-seven.  Where  the  court
orders a social services official to provide or contract for services or
assistance  pursuant  to  this  section,  such order shall be limited to
services or assistance authorized  or  required  to  be  made  available
pursuant  to  the  comprehensive  annual  services  program plan then in
effect.
  S 2. Subdivision (a) of section 1024  of  the  family  court  act,  as
amended  by  chapter  677  of  the  laws  of 1985, is amended to read as
follows:
  (a) A peace officer, acting pursuant to  his  special  duties,  police
officer,  or  a law enforcement official, or an agent of a duly incorpo-
rated society for the prevention of cruelty to children or a  designated
employee  of  a  city or county department of social services shall take
all necessary measures to protect a child's life [or health]  including,
when  appropriate,  taking or keeping a child in protective custody, and

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any physician shall notify the local department of  social  services  or
appropriate  police authorities to take custody of any child such physi-
cian is treating, without an order under section one thousand twenty-two
and  without the consent of the parent or other person legally responsi-
ble for the child's care, regardless of  whether  the  parent  or  other
person  legally  responsible for the child's care is absent, if (i) such
person has reasonable cause to believe that the child is in such circum-
stance or condition that his continuing in said place of residence or in
the care and custody of the parent or person legally responsible for the
child's care presents an imminent danger to the child's life or [health]
WHERE THERE IS CLEAR AND CONVINCING EVIDENCE THAT THERE IS IMMINENT RISK
TO THE CHILD'S LIFE, HEALTH OR WELFARE, OR THE CHILD MAY BE  SUBJECT  TO
SEXUAL ABUSE; and
  (ii)  there is not time enough to apply for an order under section one
thousand twenty-two.
  S 3. The opening paragraph of paragraph  (i)  of  subdivision  (b)  of
section  1027  of the family court act, as amended by chapter 671 of the
laws of 2005, is amended to read as follows:
  Upon such hearing, if the court finds CLEAR  AND  CONVINCING  EVIDENCE
that  removal is necessary to avoid imminent risk to the child's life or
health, it shall remove or continue the removal of  the  child.  If  the
court  makes  such  a determination that removal is necessary, the court
shall immediately inquire as to the status of any efforts  made  by  the
local social services district to locate relatives of the child, includ-
ing  any  non-respondent  parent and all of the child's grandparents, as
required pursuant to section one thousand seventeen of this article. The
court shall also inquire as to whether the child, if  over  the  age  of
five, has identified any relatives who play or have played a significant
positive  role  in  his or her life and whether any respondent parent or
any non-respondent parent has identified any  suitable  relatives.  Such
inquiry  shall  include  whether  any  relative who has been located has
expressed an interest in becoming a foster parent for the  child  or  in
seeking  custody  or care of the child. Upon completion of such inquiry,
the court shall remand or place the child:
  S 4. 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 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 pursuant 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 respon-
sible  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 CLEAR AND CONVINCING EVIDENCE 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.

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  S 5. Paragraph (i) of subdivision (b) of section 1046  of  the  family
court  act,  as  amended by chapter 7 of the laws of 1999, is amended to
read as follows:
  (i)  any  determination that the child is an abused or neglected child
must be based on [a preponderance of] CLEAR AND CONVINCING evidence;
  S 6. 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  BY
CLEAR  AND CONVINCING EVIDENCE in accord with part four of this article,
or if all parties and the law guardian consent, the court shall, subject
to the provisions of subdivision (c) of this  section,  enter  an  order
finding that the child is an abused child or a neglected child and shall
state the grounds for the finding.
  S  7.  Subdivision  (d)  of  section  1051 of the family court act, as
amended by chapter 478 of the laws  of  1988,  is  amended  to  read  as
follows:
  (d)  If the court makes a finding of abuse or neglect, it shall deter-
mine, based upon the facts adduced during the fact-finding  hearing  and
any  other additional facts presented to it, whether a preliminary order
pursuant to section one thousand twenty-seven is required to protect the
child's interests pending a final order of disposition. The court  shall
state  the  grounds for its determination. In addition, a child found to
be abused or neglected may be removed and remanded to a  place  approved
for such purpose by the local social services department or be placed in
the  custody of a suitable person, pending a final order of disposition,
if the court finds that there is  a  substantial  probability  that  the
final  order  of disposition will be an order of placement under section
one thousand fifty-five AND IF THE COURT FINDS THAT THERE IS  CLEAR  AND
CONVINCING  EVIDENCE  OF AN IMMINENT RISK TO THE CHILD'S LIFE, HEALTH OR
WELFARE OR WHERE THE CHILD MAY BE SUBJECT TO SEXUAL ABUSE. In  determin-
ing whether substantial probability exists, the court shall consider the
requirements of subdivision (b) of section one thousand fifty-two.
  S  8.  The  opening  paragraph  of paragraph (i) of subdivision (b) of
section 1052 of the family court act, as amended by chapter 538  of  the
laws of 1992, is amended to read as follows:
  The  order  of  the  court shall state the grounds for any disposition
made under this section. If the court places the child  in  accord  with
section  one  thousand  fifty-five of this part, the court in its order,
UPON PROOF BY CLEAR AND CONVINCING EVIDENCE THAT THERE  IS  AN  IMMINENT
RISK  TO THE CHILD'S LIFE, HEALTH OR WELFARE OR THE CHILD MAY BE SUBJECT
TO SEXUAL ABUSE, shall determine:
  S 9. Subdivision (a) of section 1055  of  the  family  court  act,  as
amended  by  chapter  12  of  the  laws  of  2006, is amended to read as
follows:
  (a) For purposes of section one thousand fifty-two of  this  part  the
court may place the child in the custody of a relative or other suitable
person,  or  of the [local] commissioner of [social services] THE OFFICE
OF CHILDREN AND FAMILY SERVICES or  of  such  other  officer,  board  or
department  as  may be authorized to receive children as public charges,
or a duly authorized association, agency, society or in  an  institution
suitable  for  the  placement  of  a child ONLY WHERE THERE IS CLEAR AND
CONVINCING EVIDENCE THAT THERE IS AN IMMINENT RISK TO THE CHILD'S  LIFE,
HEALTH  OR  WELFARE  OR THE CHILD MAY BE SUBJECT TO SEXUAL ABUSE IF SUCH
CHILD IS RETURNED TO HIS OR HER  PARENT  OR  ANY  OTHER  PERSON  LEGALLY
RESPONSIBLE  FOR  HIM OR HER.  The court may also place the child in the

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custody of the [local] commissioner of [social services] THE  OFFICE  OF
CHILDREN  AND  FAMILY  SERVICES and may direct such commissioner to have
the child reside with a relative or other suitable person who has  indi-
cated  a  desire  to  become  a  foster parent for the child and further
direct such commissioner, pursuant to regulations of [the]  SUCH  office
[of  children  and family services], to commence an investigation of the
home of such relative or other suitable person within twenty-four  hours
and  thereafter  expedite  approval or certification of such relative or
other suitable person, if qualified, as a foster parent. If such home is
found to be unqualified  for  approval  or  certification,  the  [local]
commissioner  shall  report such fact to the court forthwith so that the
court may make a placement determination that is in the  best  interests
of the child.
  S  10.    Subdivision  (a) of section 1055 of the family court act, as
amended by chapter 519 of the laws  of  2008,  is  amended  to  read  as
follows:
  (a)  (i)  For  purposes of section one thousand fifty-two of this part
the court may place the child in the custody  of  a  relative  or  other
suitable person pursuant to this article, or of the [local] commissioner
of  [social  services]  THE OFFICE OF CHILDREN AND FAMILY SERVICES or of
such other officer, board or department as may be authorized to  receive
children  as  public  charges, or a duly authorized association, agency,
society or in an institution suitable for the placement of a child  ONLY
WHERE  THERE  IS CLEAR AND CONVINCING EVIDENCE THAT THERE IS AN IMMINENT
RISK TO THE CHILD'S LIFE, HEALTH OR WELFARE OR THE CHILD MAY BE  SUBJECT
TO  SEXUAL  ABUSE  IF SUCH CHILD IS RETURNED TO HIS OR HER PARENT OR ANY
OTHER PERSON LEGALLY RESPONSIBLE FOR HIM OR  HER.  The  court  may  also
place  the  child  in the custody of the [local] commissioner of [social
services] THE OFFICE OF CHILDREN AND FAMILY SERVICES and may direct such
commissioner to have the child reside with a relative or other  suitable
person  who  has  indicated  a  desire to become a foster parent for the
child and further direct such commissioner, pursuant to  regulations  of
[the]  SUCH  office  [of  children  and family services], to commence an
investigation of the home of such  relative  or  other  suitable  person
within  twenty-four  hours  and  thereafter expedite approval or certif-
ication of such relative or other suitable person, if  qualified,  as  a
foster  parent.  If such home is found to be unqualified for approval or
certification, the [local] commissioner shall report such  fact  to  the
court  forthwith  so  that  the court may make a placement determination
that is in the best interests of the child.
  (ii) An order placing a child directly with a relative or other  suit-
able person pursuant to this part may not be granted unless the relative
or  other suitable person consents to the jurisdiction of the court. The
court may place the person with whom the child has been directly  placed
under supervision of a child protective agency, social services official
or  duly  authorized  agency  during the pendency of the proceeding. The
court also may issue an order of protection under section  one  thousand
fifty-six  of this part. An order of supervision issued pursuant to this
subdivision shall set forth the terms and conditions that  the  relative
or  suitable  person must meet and the actions that the child protective
agency, social services official or duly authorized agency must take  to
exercise such supervision.
  S 11. This act shall take effect immediately; provided that the amend-
ments to subdivision (a) of section 1055 of the family court act made by
section  10  of this act shall take effect on the same date as section 4
of chapter 519 of the laws of 2008, takes effect.