senate Bill S5694A

Signed By Governor
2011-2012 Legislative Session

Creates article 10-C of the family court act relating to destitute children; repealer

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Archive: Last Bill Status Via A7836 - Signed by Governor


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 27, 2012 signed chap.605
Dec 28, 2011 delivered to governor
Jun 20, 2011 returned to assembly
passed senate
3rd reading cal.1402
substituted for s5694a
Jun 20, 2011 substituted by a7836a
ordered to third reading cal.1402
committee discharged and committed to rules
Jun 13, 2011 print number 5694a
amend (t) and recommit to judiciary
Jun 10, 2011 referred to judiciary

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Bill Amendments

Original
A (Active)
Original
A (Active)

S5694 - Bill Details

See Assembly Version of this Bill:
A7836A
Law Section:
Family Court Act
Laws Affected:
Rpld §1059, amd Fam Ct Act, generally; amd §398, rpld sub 6 ¶(i), Soc Serv L
Versions Introduced in 2011-2012 Legislative Session:
A7836A

S5694 - Bill Texts

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Creates Article 10-C of the Family Court Act relating to destitute children.

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BILL NUMBER:S5694

TITLE OF BILL:
An act
to amend the family court act and the social services law, in relation
to procedures for destitute children in the family court; to repeal
section 1059 of the family court act, relating to abandoned
children; and to
repeal paragraph (i) of subdivision 6 of section 398 of the social
services law relating to providing care in an institution

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

This measure would establish "destitute child," as the term is defined
in section 371 of the Social Services Law, as a discrete category of
Family Court proceeding, with attendant due process protections,
including right to counsel, for parents and children. It would
specifically authorize temporary placements, as well as dispositional
alternatives of release to the parent or parents, placement with the
county social services agency, relatives or other suitable
individuals or custody with relatives or suitable individuals.
Similar to Family Court Act § 1017, the measure would authorize the
Family Court to direct the social services agency to investigate and,
if found satisfactory, to place children with relatives and other
suitable persons. Analogous to Family Court Act §1015-a, the Court
would be permitted to direct agencies to provide services, to the
extent authorized under their comprehensive annual service plans, to
assist destitute children and their families in ameliorating the
conditions that gave rise to the need for court intervention. Where a
destitute child is placed, the placement would be reviewed, as are
all other placements, through permanency hearings under Article 10-A
of the Family Court Act and the child and family
would have all of the rights to services and planning applicable
under the permanency statute. Similar amendments would be made to
section 398 of the
Social Services Law to delineate the responsibility of local social
services departments to provide care and support for destitute
children and, in appropriate cases, to petition the Family Court.

Finally, this measure would repeal Family Court Act § 1059, as it is
anachronistic, conflicts with more recent legislation regarding
abandoned children and erroneously implies that termination of
parental rights proceedings should be routinely filed in situations
involving destitute and abandoned children. Section 1059 provides
that children found to be abandoned are to be "discharged" to the
custody of the local commissioner of social services, who must care
for them as "destitute" children or "as otherwise provided by law" and
requires Family Court to direct the local commissioner to institute
proceedings to terminate parental rights. The term "discharged"
appears misplaced in this context, since the dispositions available
for destitute children, including placement with, but not "discharge
to" the local commissioner of social services, are delineated in
proposed Family Court Act §1095. However, contrary to language in
Family Court Act § 1059, termination of parental rights proceedings
should not be mandatory either for abandoned or destitute children,


as alternatives, including provision of preventive services or
placements with relatives or other suitable persons, may well be more
appropriate to the children's best interests in
particular cases. Thus, section 1059 of the Family Court Act should
be repealed.

Prior to enactment of the landmark permanency legislation (L. 2005, c.
3), proceedings to initiate and review the placement of destitute
children in foster care were commenced by petitions pursuant to
Social Services Law §392. The repeal of that statute left destitute
children without any procedural vehicle for placement into foster
care, where necessary, and for periodic review of that placement.
Significantly, repeal of that section left destitute children and
their parents without access to counsel and thus without an effective
means of requesting appropriate services. This measure would create a
new no-fault cause of action in a new Article 10-C of the Family
Court Act to supply that procedural vehicle. As the definition of
"destitute child" in Social Services Law §371 specifies, a child may
be destitute through no fault of the parents, i.e., where parents are
deceased or where there are no parents who can be held financially
responsible for the child's support. These children do not fall into
any other category: they are not abused or neglected, persons in need
of supervision, juvenile delinquents or voluntarily placed, but many
do need the assistance of social service agencies and periodic
oversight from the Family Court to
ensure permanence, stability and provision of necessary services. In
addition to ensuring access to Federal foster care reimbursement
under Title IV-E of the Social Security Act, this measure would
provide the procedural vehicle for fulfilling the New York State
Constitutional mandate to provide care and assistance to the needy.
See N.Y. Constitution, Art. XVII.

Moreover, in these difficult fiscal times, this measure is critically
important to relieve counties from shouldering 100% of the costs of
furnishing foster care to destitute children. While carrying no
fiscal implications at all for New York State, it will permit county
social services districts to qualify for Federal foster care
reimbursement for approximately half of the costs of care for
destitute children who qualify for Federal Title IV-E foster care
assistance. But more important, the measure would provide a vehicle
for regular Family Court oversight over the permanency planning
efforts made by counties on behalf of destitute children, thus
resulting in a quicker exit from foster care and achievement of
permanency for these children.

This measure would take effect immediately.

2011 Legislative History: OCA 2011-49
Assembly 7836 (M. of A. Paulin, et al) (Codes)

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

                                  5694

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 10, 2011
                               ___________

Introduced by Sen. SALAND -- (at request of the Office of Court Adminis-
  tration)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on Judiciary

AN ACT to amend the family court act and the  social  services  law,  in
  relation  to procedures for destitute children in the family court; to
  repeal section 1059 of the family court  act,  relating  to  abandoned
  children;  and to repeal paragraph (i) of subdivision 6 of section 398
  of the social services law relating to providing care in  an  institu-
  tion

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

  Section 1. Subdivision (c) of section 115 of the family court act,  as
amended  by  section  1  of  part A of chapter 3 of the laws of 2005, is
amended to read as follows:
  (c) The family court has such other jurisdiction  as  is  provided  by
law,  including  but not limited to: proceedings concerning adoption and
custody of children, as set forth in parts two and three of article  six
of  this  act;  proceedings  concerning  the  uniform  interstate family
support act, as set forth in article five-B  of  this  act;  proceedings
concerning  children in foster care and care and custody of children, as
set forth in sections three  hundred  fifty-eight-a  and  three  hundred
eighty-four-a  of the social services law and article ten-A of this act;
proceedings concerning FORMER FOSTER CHILDREN AS SET  FORTH  IN  ARTICLE
TEN-B  OF  THIS  ACT;  PROCEEDINGS CONCERNING DESTITUTE CHILDREN, AS SET
FORTH IN ARTICLE TEN-C OF THIS ACT; PROCEEDINGS CONCERNING  guardianship
and  custody  of  children  by reason of the death of, or abandonment or
surrender by, the parent or parents, as  set  forth  in  sections  three
hundred eighty-three-c, three hundred eighty-four and paragraphs (a) and
(b)  of  subdivision  four of section three hundred eighty-four-b of the
social services law; proceedings  concerning  standby  guardianship  and
guardianship  of  the person as set forth in part four of article six of

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11155-03-1

S. 5694                             2

this act and article seventeen of the surrogate's court  procedure  act;
and  proceedings  concerning  the interstate compact on juveniles as set
forth in chapter one hundred fifty-five of the laws of nineteen  hundred
fifty-five, as amended, the interstate compact on the placement of chil-
dren, as set forth in section three hundred seventy-four-a of the social
services law, and the uniform child custody jurisdiction and enforcement
act, as set forth in article five-A of the domestic relations law.
  S  2.  Subdivision  (a)  of  section  249  of the family court act, as
amended by chapter 29 of the  laws  of  2011,  is  amended  to  read  as
follows:
  (a) In a proceeding under article three, seven, ten [or], ten-A, TEN-B
OR  TEN-C  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 custody under section one  hundred  fifty-eight  of
this  act  or  in  any  proceeding  where  a  minor is detained under or
governed by the interstate compact for juveniles established pursuant to
section five hundred one-e of the executive law, the family court  shall
appoint  an  attorney  to  represent  a  minor who is the subject of the
proceeding or who is sought to be placed in protective custody, if inde-
pendent 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  people  with  developmental  disabilities  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 assigned counsel. In any  other  proceeding  in
which  the  court has jurisdiction, the court may appoint an attorney to
represent the child, when, in the opinion of  the  family  court  judge,
such  representation 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.
  S 3. Paragraphs (i) and (iv) of subdivision (a) of section 262 of  the
family  court  act,  paragraph  (i) as amended by section 3 of part A of
chapter 3 of the laws of 2005 and paragraph (iv) as amended  by  chapter
437 of the laws of 2006, are amended to read as follows:
  (i)  the  respondent in any proceeding under article ten [or], article
ten-A OR ARTICLE TEN-C of this act and the petitioner in any  proceeding
under part eight of article ten of this act;
  (iv) the parent OR OTHER PERSON LEGALLY RESPONSIBLE, foster parent, or
other  person  having  physical  or  legal  custody  of the child in any
proceeding under article ten [or], ten-A, TEN-B OR TEN-C of this act  or
section  three hundred fifty-eight-a, three hundred eighty-four or three
hundred eighty-four-b of the social services law,  and  a  non-custodial
parent  or  grandparent  served with notice pursuant to paragraph (e) of
subdivision two of section three hundred  eighty-four-a  of  the  social
services law;
  S 4. Section 1059 of the family court act is REPEALED.
  S  5.  Section 1086 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. 5694                             3

  S 1086. Purpose. The purpose of this article is to  establish  uniform
procedures  for  permanency  hearings for all children who are placed in
foster care 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 twenty-two, one thou-
sand  twenty-seven,  [or]   one   thousand   fifty-two,   ONE   THOUSAND
EIGHTY-NINE,  ONE  THOUSAND  NINETY-ONE, ONE THOUSAND NINETY-FOUR OR ONE
THOUSAND NINETY-FIVE of this act; children who are directly placed  with
a  relative  pursuant  to section one thousand seventeen or one thousand
fifty-five of this act; and children who are freed for adoption.  It  is
meant to provide children placed out of their homes timely and effective
judicial review that promotes permanency, safety and well-being in their
lives.
  S  6.  Subdivision  (a)  of  section  1087 of the family court act, as
amended by chapter 342 of the laws  of  2010,  is  amended  to  read  as
follows:
  (a)  "Child"  shall  mean  a  person  under the age of eighteen who is
placed in foster care 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 twenty-two,  one  thou-
sand   twenty-seven,   [or]   one   thousand   fifty-two,  ONE  THOUSAND
EIGHTY-NINE, ONE THOUSAND NINETY-ONE, ONE THOUSAND  NINETY-FOUR  OR  ONE
THOUSAND  NINETY-FIVE  of  this  act; or directly placed with a relative
pursuant to section one thousand seventeen or one thousand fifty-five of
this act; or who has been freed for adoption or  a  person  between  the
ages  of  eighteen  and  twenty-one who has consented to continuation in
foster care or trial discharge status; or a  former  foster  care  youth
under  the  age  of  twenty-one for whom a court has granted a motion to
permit the former foster care youth to return  to  the  custody  of  the
local commissioner of social services or other officer, board or depart-
ment authorized to receive children as public charges.
  S  7.  Section  1088 of the family court act, as separately amended by
chapters 41 and 342 of the laws of 2010, 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, ONE THOUSAND EIGHTY-NINE, ONE
THOUSAND  NINETY-ONE,  ONE  THOUSAND   NINETY-FOUR   OR   ONE   THOUSAND
NINETY-FIVE  of this act, or directly placed with a relative pursuant to
section one thousand seventeen or one thousand 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  calen-
dar  and  the  court shall maintain jurisdiction over the case until the
child is discharged from placement and all orders regarding supervision,
protection or services have expired. The court shall rehear  the  matter
whenever  it  deems  necessary or desirable, or upon motion by any party
entitled to notice in proceedings under this article, or by the attorney
for the child, and whenever 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.  The  court shall also maintain jurisdiction over a
case for purposes of hearing a motion to permit  a  former  foster  care
youth  under  the  age of twenty-one who was discharged from foster care
due to a failure to consent to continuation of placement  to  return  to

S. 5694                             4

the  custody of the local commissioner of social services or other offi-
cer, board or department authorized to receive children as public charg-
es.
  S  8.  Paragraph  2  of  subdivision (a) of section 1089 of the family
court act, as amended by chapter 437 of the laws of 2006, is amended  to
read as follows:
  (2)  All  other  permanency hearings. At the conclusion of the hearing
pursuant to section one thousand twenty-two, one thousand  twenty-seven,
[or]  one  thousand  fifty-two,  ONE  THOUSAND EIGHTY-NINE, ONE THOUSAND
NINETY-ONE, ONE THOUSAND NINETY-FOUR OR ONE THOUSAND NINETY-FIVE of this
act at which the child was remanded  or  placed  and  upon  the  court's
approval  of  a voluntary placement instrument pursuant to section three
hundred fifty-eight-a of the social services law, the court shall set  a
date  certain  for  an initial permanency hearing, advise all parties in
court of the date set and include the date in the order.  Orders  issued
in subsequent court hearings prior to the permanency hearing, including,
but  not  limited  to, the order of placement issued pursuant to section
one thousand fifty-five of this act, shall include the date certain  for
the   permanency  hearing.  The  initial  permanency  hearing  shall  be
commenced no later than six months from the date  which  is  sixty  days
after  the  child  was  removed from his or her home; provided, however,
that if a sibling or half-sibling  of  the  child  has  previously  been
removed  from  the home and has a permanency hearing date certain sched-
uled within the next eight months, the permanency hearing for each child
subsequently removed from the home shall be scheduled on the  same  date
certain  that  has  been  set for the first child removed from the home,
unless such sibling or half-sibling  has  been  removed  from  the  home
pursuant  to  article three or seven of this act. The permanency hearing
shall be completed within thirty days of the scheduled date certain.
  S 9. Subdivision (a) of section 1090 of the family court act, as sepa-
rately amended by chapters 41 and 342 of the laws of 2010, is amended to
read as follows:
  (a) If an attorney for the child has  been  appointed  by  the  family
court  in a proceeding pursuant to THIS ARTICLE OR 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, TEN-B OR TEN-C of this act, the appointment of the attorney for the
child shall continue without further court order or appointment,  unless
another  appointment  of  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. The attorney
FOR  THE  CHILD  shall also represent the child without further order or
appointment in any proceedings under article ten-B OR TEN-C of this act.
All notices, reports and motions required by law shall  be  provided  to
[the child's] SUCH attorney. The [child's] attorney FOR THE CHILD 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 attorney to whom all notices,
reports, and motions required by law shall be provided.
  S 10. The family court act is amended by adding a new article 10-C  to
read as follows:
                              ARTICLE 10-C
                           DESTITUTE CHILDREN

SECTION 1092. DEFINITIONS.
        1093. ORIGINATING PROCEEDINGS.

S. 5694                             5

        1094. INITIAL APPEARANCE AND PRELIMINARY PROCEEDINGS.
        1095. FACT FINDING AND DISPOSITION.
  S  1092.  DEFINITIONS.  WHEN  USED IN THIS ARTICLE UNLESS THE SPECIFIC
CONTEXT INDICATES OTHERWISE:
  (A) "DESTITUTE CHILD" SHALL MEAN A CHILD WHO, THROUGH  NO  NEGLECT  ON
THE PART OF THE PARENT, GUARDIAN OR CUSTODIAN, IS A "DESTITUTE CHILD" AS
DEFINED  IN  PARAGRAPH  (A),  (B) OR (D) OF SUBDIVISION THREE OF SECTION
THREE HUNDRED SEVENTY-ONE OF THE SOCIAL SERVICES LAW.
  (B) "PARENT" SHALL MEAN ANY LIVING BIOLOGICAL OR  ADOPTIVE  PARENT  OF
THE CHILD WHOSE RIGHTS HAVE NOT BEEN TERMINATED OR SURRENDERED.
  (C)  "PERSON LEGALLY RESPONSIBLE" SHALL MEAN THE CUSTODIAN OR GUARDIAN
OF THE DESTITUTE CHILD OR ANY OTHER ADULT RESPONSIBLE FOR  THE  CARE  OF
SUCH CHILD AT THE RELEVANT TIME.
  (D) "PERMANENCY HEARING" SHALL MEAN A HEARING IN ACCORDANCE WITH ARTI-
CLE  TEN-A  OF  THIS  ACT,  AS DEFINED IN SUBDIVISION (K) OF SECTION ONE
THOUSAND TWELVE OF THIS ACT.
  (E) "COMMISSIONER OF SOCIAL SERVICES" SHALL MEAN THE  COMMISSIONER  OF
THE  LOCAL  DEPARTMENT  OF  SOCIAL SERVICES OR, IN A CITY HAVING A POPU-
LATION OF  ONE  MILLION  OR  MORE,  THE  ADMINISTRATION  FOR  CHILDREN'S
SERVICES.
  S 1093. ORIGINATING PROCEEDINGS. (A) FILING OF THE PETITION. A COMMIS-
SIONER  OF SOCIAL SERVICES MAY ORIGINATE A PROCEEDING UNDER THIS ARTICLE
BY FILING A PETITION ALLEGING THAT THE CHILD IS  A  DESTITUTE  CHILD  AS
DEFINED  BY  SECTION  ONE THOUSAND NINETY-TWO OF THIS ARTICLE. A COMMIS-
SIONER OF SOCIAL SERVICES, WHO ACCEPTS THE CARE AND CUSTODY OF  A  CHILD
APPEARING  TO  BE  A  DESTITUTE CHILD, SHALL FILE A PETITION PURSUANT TO
THIS SECTION FORTHWITH UPON ACCEPTING  THE  CARE  AND  CUSTODY  OF  SUCH
CHILD.
  (B)  VENUE. A PETITION UNDER THIS ARTICLE SHALL BE FILED IN THE FAMILY
COURT LOCATED IN THE COUNTY WHERE THE CHILD RESIDES OR IS  DOMICILED  OR
WHERE THE DEPARTMENT OF SOCIAL SERVICES IS LOCATED.
  (C)  CONTENTS  OF  THE  PETITION.  (1)  THE PETITION SHALL ALLEGE UPON
INFORMATION AND BELIEF:
  (I) THE MANNER, DATE AND CIRCUMSTANCE UNDER  WHICH  THE  CHILD  BECAME
KNOWN TO THE PETITIONER;
  (II) THE CHILD'S DATE OF BIRTH;
  (III)  THAT  THE  CHILD IS A DESTITUTE CHILD AS DEFINED IN SUBDIVISION
(A) OF SECTION ONE THOUSAND NINETY-TWO OF THIS ARTICLE AND IS THE  BASIS
FOR THE ALLEGATION;
  (IV) THE IDENTITY OF THE PARENT OR PARENTS OF THE CHILD IN QUESTION;
  (V) WHETHER THE PARENT OR PARENTS OF THE CHILD ARE LIVING OR DECEASED;
  (VI) THE WHEREABOUTS AND LAST KNOWN ADDRESS FOR THE PARENT OR PARENTS;
  (VII)  THE EFFORTS, IF ANY, WHICH WERE MADE PRIOR TO THE FILING OF THE
PETITION TO PREVENT THE REMOVAL OF THE CHILD FROM THE HOME AND  IF  SUCH
EFFORTS WERE NOT MADE, THE REASONS SUCH EFFORTS WERE NOT MADE; AND
  (VIII)  IF THE CHILD HAD BEEN REMOVED FROM HOME PRIOR TO THE FILING OF
THE PETITION, THE EFFORTS, IF ANY, WHICH WERE MADE PRIOR TO  THE  FILING
OF  THE  PETITION  TO ALLOW THE CHILD TO RETURN SAFELY HOME, AND IF SUCH
EFFORTS WERE NOT MADE, THE REASONS SUCH EFFORTS WERE NOT MADE.
  (2) UNLESS THE PARENT OR PARENTS  ARE  DECEASED,  THE  PETITION  SHALL
CONTAIN  A  NOTICE  IN  CONSPICUOUS  PRINT  PROVIDING  THAT IF THE CHILD
REMAINS IN FOSTER CARE FOR FIFTEEN OF THE MOST RECENT TWENTY-TWO MONTHS,
THE AGENCY MAY BE REQUIRED BY  LAW  TO  FILE  A  PETITION  TO  TERMINATE
PARENTAL RIGHTS.
  (D)  SERVICE  OF SUMMONS. (1) UPON THE FILING OF A PETITION UNDER THIS
ARTICLE, IF A LIVING PARENT OR PERSON LEGALLY RESPONSIBLE FOR THE  CHILD

S. 5694                             6

IS IDENTIFIED IN THE PETITION, THE COURT SHALL CAUSE A COPY OF THE PETI-
TION  AND  A  SUMMONS  TO  BE ISSUED THE SAME DAY THE PETITION IS FILED,
REQUIRING SUCH PARENT OR PERSON LEGALLY RESPONSIBLE  FOR  THE  CHILD  TO
APPEAR IN COURT ON THE RETURN DATE TO ANSWER THE PETITION.
  (2) SERVICE OF A SUMMONS AND PETITION UNDER THIS ARTICLE SHALL BE MADE
BY DELIVERY OF A TRUE COPY THEREOF TO THE PERSON SUMMONED AT LEAST TWEN-
TY-FOUR HOURS BEFORE THE TIME STATED THEREIN FOR APPEARANCE.
  (3)  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  EXER-
CISE  OF  PERSONAL JURISDICTION OVER ANY PERSON SUBJECT TO THE JURISDIC-
TION 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 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 ATTORNEY FOR  THE  CHILD  PROCEED  TO  A
HEARING PURSUANT TO SECTION ONE THOUSAND NINETY-FIVE OF THIS ARTICLE.
  (4)  IF  AFTER  REASONABLE  EFFORT,  PERSONAL SERVICE IS NOT MADE, THE
COURT MAY AT ANY STAGE IN THE PROCEEDINGS MAKE AN  ORDER  PROVIDING  FOR
SUBSTITUTED  SERVICE  IN  THE MANNER PROVIDED FOR SUBSTITUTED SERVICE IN
CIVIL PROCESS IN COURTS OF RECORD.
  S 1094. INITIAL APPEARANCE AND PRELIMINARY PROCEEDINGS.   (A)  AT  THE
INITIAL APPEARANCE, THE COURT SHALL:
  (1)  APPOINT AN ATTORNEY TO REPRESENT THE CHILD AND, IF APPEARING, THE
PARENT OR PARENTS OR OTHER PERSON OR PERSONS LEGALLY RESPONSIBLE;
  (2) (I) IF A PARENT OR PARENTS OR  OTHER  PERSON  OR  PERSONS  LEGALLY
RESPONSIBLE APPEAR, DETERMINE WHETHER THE CHILD MAY SAFELY REMAIN IN HIS
OR  HER  OR THEIR HOME AND, IF APPROPRIATE, ORDER SERVICES TO ASSIST THE
FAMILY TOWARD THAT END;
  (II) DETERMINE WHETHER THE CHILD'S HEALTH OR SAFETY WOULD BE IN  IMMI-
NENT  RISK  AND WHETHER IT WOULD BE CONTRARY TO THE WELFARE OF THE CHILD
TO CONTINUE IN HIS OR HER OWN HOME, AND, IF SO, WHETHER THE CHILD SHOULD
BE PLACED IN THE TEMPORARY CARE AND CUSTODY OF A RELATIVE OR OTHER SUIT-
ABLE PERSON OR IN THE TEMPORARY CARE AND CUSTODY OF THE COMMISSIONER  OF
SOCIAL SERVICES;
  (III)  UPON  A  DETERMINATION  THAT  THE  CHILD  SHOULD BE TEMPORARILY
PLACED:
  (A) DIRECT THE PETITIONER TO INVESTIGATE WHETHER THERE ARE ANY PARENTS
OR OTHER PERSONS LEGALLY RESPONSIBLE NOT NAMED IN THE  PETITION  OR  ANY
OTHER RELATIVES OR OTHER SUITABLE PERSONS WITH WHOM THE CHILD MAY SAFELY
RESIDE AND, IF SO, DIRECT THE CHILD TO RESIDE TEMPORARILY IN THEIR CARE;
AND
  (B)  IF A RELATIVE OR OTHER SUITABLE PERSON SEEKS APPROVAL TO CARE FOR
THE CHILD AS A FOSTER PARENT,  DIRECT  THE  PETITIONER  TO  COMMENCE  AN
INVESTIGATION INTO THE HOME OF SUCH RELATIVE AND THEREAFTER APPROVE SUCH
RELATIVE  OR  OTHER  SUITABLE  PERSON, IF QUALIFIED, AS A FOSTER PARENT;
PROVIDED, HOWEVER, THAT IF SUCH HOME IS  FOUND  TO  BE  UNQUALIFIED  FOR
APPROVAL,  THE  PETITIONER SHALL REPORT SUCH FACT TO THE COURT FORTHWITH
AND, IN THE CASE OF A RELATIVE WHO SEEKS APPROVAL TO CARE FOR THE  CHILD
AS  A FOSTER PARENT, THE RELATIVE MAY PROCEED IN ACCORDANCE WITH SECTION
ONE THOUSAND TWENTY-EIGHT-A OF THIS ACT.
  (3) SET A DATE CERTAIN FOR THE FACT FINDING  AND  DISPOSITION  HEARING
PURSUANT TO SECTION ONE THOUSAND NINETY-FIVE OF THIS ARTICLE AND, IF THE
CHILD  IS TEMPORARILY PLACED, SET A DATE CERTAIN FOR THE INITIAL PERMAN-
ENCY HEARING PURSUANT TO PARAGRAPH TWO OF SUBDIVISION (A) OF SECTION ONE
THOUSAND EIGHTY-NINE OF THIS ACT.  THE  DATE  CERTAIN  FOR  THE  INITIAL

S. 5694                             7

PERMANENCY HEARING SHALL BE NO LATER THAN EIGHT MONTHS FROM THE DATE THE
SOCIAL SERVICES OFFICIAL ACCEPTED CARE OF THE CHILD;
  (4) DETERMINE WHETHER REASONABLE EFFORTS WERE MADE PRIOR TO THE PLACE-
MENT  OF THE CHILD INTO FOSTER CARE TO PREVENT OR ELIMINATE THE NEED FOR
REMOVAL OF THE CHILD FROM HIS OR HER HOME, AND IF SUCH EFFORTS WERE  NOT
MADE WHETHER THE LACK OF SUCH EFFORTS WERE APPROPRIATE UNDER THE CIRCUM-
STANCES;  DETERMINE,  WHERE APPROPRIATE, IF REASONABLE EFFORTS WERE MADE
TO MAKE IT POSSIBLE FOR THE CHILD TO RETURN SAFELY HOME; AND
  (5) INCLUDE THE FINDINGS MADE PURSUANT TO PARAGRAPHS ONE THROUGH  FOUR
OF THIS SUBDIVISION IN A WRITTEN ORDER.
  (B)  UNLESS  THERE  HAS  BEEN  A HEARING UNDER SUBDIVISION (A) OF THIS
SECTION AT WHICH THE PARENT OR PARENTS AND  CHILD'S  ATTORNEY  APPEARED,
THE PARENT OR PARENTS OF THE CHILD OR THE CHILD'S ATTORNEY MAY REQUEST A
HEARING  TO  DETERMINE  WHETHER A CHILD WHO HAS BEEN REMOVED FROM HIS OR
HER HOME SHOULD BE RETURNED AND,  IF  SO,  WHETHER  SERVICES  SHOULD  BE
ORDERED  TO  FACILITATE  SUCH  RETURN.  EXCEPT FOR GOOD CAUSE SHOWN, THE
HEARING SHALL BE HELD WITHIN THREE COURT DAYS OF THE REQUEST  AND  SHALL
NOT  BE  ADJOURNED.  THE COURT SHALL GRANT THE APPLICATION FOR RETURN OF
THE CHILD UNLESS THE CHILD WOULD BE IN IMMINENT  RISK  IF  RETURNED.  IF
IMMINENT  RISK  TO  THE  CHILD  IS  FOUND,  THE COURT MAY MAKE ORDERS IN
ACCORDANCE WITH PARAGRAPH  TWO  OF  SUBDIVISION  (A)  OF  THIS  SECTION,
INCLUDING,  BUT  NOT  LIMITED TO, DIRECTIONS FOR INVESTIGATIONS OF RELA-
TIVES OR OTHER SUITABLE PERSONS WITH WHOM THE CHILD MAY SAFELY RESIDE.
  S 1095. FACT FINDING AND DISPOSITION. (A) NO FACT FINDING HEARING  MAY
COMMENCE UNDER THIS ARTICLE UNLESS THE COURT ENTERS A FINDING:
  (1)  THAT  THE  PARENT  OR  PARENTS OR OTHER PERSON OR PERSONS LEGALLY
RESPONSIBLE FOR THE CHILD'S CARE IS OR ARE PRESENT AT  THE  HEARING  AND
HAS OR HAVE BEEN SERVED WITH A COPY OF THE PETITION; OR
  (2)  IF  THE  PARENT  OR  PARENTS  OR  OTHER PERSON OR PERSONS LEGALLY
RESPONSIBLE FOR THE CARE OF THE CHILD IS OR ARE LIVING BUT ARE NOT PRES-
ENT, THAT EVERY REASONABLE EFFORT HAS BEEN MADE TO EFFECT SERVICE  UNDER
SUBDIVISION (D) OF SECTION ONE THOUSAND NINETY-THREE OF THIS ARTICLE.
  (B)  THE  COURT  SHALL  SUSTAIN THE PETITION AND MAKE A FINDING THAT A
CHILD IS DESTITUTE IF, BASED UPON A PREPONDERANCE OF COMPETENT, MATERIAL
AND RELEVANT EVIDENCE PRESENTED, THE COURT FINDS THAT  THE  CHILD  MEETS
THE  DEFINITION  OF A DESTITUTE CHILD AS DESCRIBED IN SUBDIVISION (A) OF
SECTION ONE THOUSAND NINETY-TWO OF THIS ARTICLE.
  (C) IF THE COURT FINDS THAT THE CHILD DOES NOT MEET SUCH DEFINITION OF
A DESTITUTE CHILD OR THAT THE AID OF THE  COURT  IS  NOT  REQUIRED,  THE
COURT  SHALL  DISMISS THE PETITION; PROVIDED, HOWEVER, THAT IF THE COURT
FINDS THAT THE CHILD MAY BE IN NEED OF PROTECTION UNDER ARTICLE  TEN  OF
THIS  ACT,  THE COURT MAY REQUEST THE COMMISSIONER OF SOCIAL SERVICES TO
CONDUCT A CHILD PROTECTIVE INVESTIGATION IN ACCORDANCE WITH  SUBDIVISION
ONE  OF  SECTION  ONE  THOUSAND THIRTY-FOUR OF THIS ACT. THE COURT SHALL
STATE THE GROUNDS FOR ANY FINDING UNDER THIS SUBDIVISION.
  (D) IF THE COURT SUSTAINS THE PETITION PURSUANT TO SUBDIVISION (B)  OF
THIS  SECTION, IT MAY IMMEDIATELY CONVENE A DISPOSITIONAL HEARING OR MAY
ADJOURN THE PROCEEDING FOR FURTHER INQUIRIES TO BE MADE PRIOR TO  DISPO-
SITION.  BASED  UPON  MATERIAL  AND  RELEVANT  EVIDENCE PRESENTED AT THE
DISPOSITIONAL HEARING, THE COURT SHALL ENTER  AN  ORDER  OF  DISPOSITION
STATING  THE  GROUNDS  FOR  ITS ORDER AND DIRECTING ONE OF THE FOLLOWING
ALTERNATIVES:
  (1) RELEASING THE CHILD TO HIS OR  HER  PARENT  OR  PARENTS  OR  OTHER
PERSON OR PERSONS LEGALLY RESPONSIBLE;
  (2)  PLACING  THE CHILD IN THE CARE AND CUSTODY OF THE COMMISSIONER OF
SOCIAL SERVICES;

S. 5694                             8

  (3) PLACING THE CHILD IN THE CARE AND CUSTODY OF RELATIVES OR SUITABLE
PERSONS; OR
  (4) GRANTING AN ORDER OF CUSTODY OR GUARDIANSHIP TO RELATIVES OR SUIT-
ABLE PERSONS PURSUANT TO A PETITION UNDER ARTICLE SIX OF THIS ACT AND IN
ACCORDANCE   WITH   THE   FINDINGS  REQUIRED  BY  SECTION  ONE  THOUSAND
FIFTY-FIVE-B OF THIS ACT.
  (E) IF THE CHILD HAS BEEN PLACED PURSUANT TO PARAGRAPHS TWO  OR  THREE
OF  SUBDIVISION (D) OF THIS SECTION, THE COURT SHALL INCLUDE THE FOLLOW-
ING IN ITS ORDER:
  (1) A DATE CERTAIN FOR THE PERMANENCY HEARING IN ACCORDANCE WITH PARA-
GRAPH TWO OF SUBDIVISION (A) OF SECTION ONE THOUSAND EIGHTY-NINE OF THIS
ARTICLE;
  (2) UNLESS THE CHILD'S PARENT OR PARENTS ARE DECEASED,  A  DESCRIPTION
OF  THE  PLAN  FOR  THE CHILD TO VISIT WITH HIS OR HER PARENT OR PARENTS
UNLESS CONTRARY TO THE CHILD'S BEST INTERESTS;
  (3) A DIRECTION THAT THE CHILD BE PLACED TOGETHER WITH OR, AT MINIMUM,
TO VISIT AND HAVE REGULAR COMMUNICATION WITH, HIS OR  HER  SIBLINGS,  IF
ANY,  UNLESS  CONTRARY  TO  THE  BEST  INTERESTS OF THE CHILD AND/OR THE
SIBLINGS;
  (4) UNLESS THE CHILD'S PARENT OR PARENTS  ARE  DECEASED,  A  DIRECTION
THAT  THE  CHILD'S PARENT OR PARENTS BE NOTIFIED OF ANY PLANNING CONFER-
ENCES TO BE HELD PURSUANT TO SUBDIVISION THREE OF SECTION  FOUR  HUNDRED
NINE-E OF THE SOCIAL SERVICES LAW, OF THEIR RIGHT TO ATTEND SUCH CONFER-
ENCES  AND  TO  HAVE COUNSEL OR ANOTHER REPRESENTATIVE OR COMPANION WITH
THEM;
  (5) IF THE CHILD IS OR WILL BE FOURTEEN OR OLDER BY THE  DATE  OF  THE
PERMANENCY HEARING, THE SERVICES AND ASSISTANCE THAT MAY BE NECESSARY TO
ASSIST THE CHILD IN LEARNING INDEPENDENT LIVING SKILLS; AND
  (6)  UNLESS THE CHILD'S PARENT OR PARENTS ARE DECEASED, A NOTICE THAT,
IF THE CHILD REMAINS IN FOSTER CARE FOR FIFTEEN OF THE MOST RECENT TWEN-
TY-TWO MONTHS, THE AGENCY MAY BE REQUIRED BY LAW TO FILE A  PETITION  TO
TERMINATE PARENTAL RIGHTS.
  (F) IF THE CHILD HAS BEEN PLACED PURSUANT TO PARAGRAPH TWO OR THREE OF
SUBDIVISION (D) OF THIS SECTION, THE PROVISIONS OF PART EIGHT OF ARTICLE
TEN OF THIS ACT SHALL BE APPLICABLE.
  (G)  IF  THE  COURT  MAKES  AN ORDER PURSUANT TO PARAGRAPH ONE, TWO OR
THREE OF SUBDIVISION (D) OF THIS SECTION, THE COURT MAY INCLUDE A DIREC-
TION FOR THE COMMISSIONER OF SOCIAL SERVICES TO PROVIDE OR  ARRANGE  FOR
SERVICES  OR  ASSISTANCE,  AUTHORIZED  TO  BE  MADE  AVAILABLE UNDER THE
COMPREHENSIVE ANNUAL SERVICES PROGRAM PLAN THEN IN EFFECT, TO AMELIORATE
THE CONDITIONS THAT FORMED THE BASIS FOR  THE  FACT-FINDING  UNDER  THIS
SECTION  AND,  IF  THE  CHILD  HAS BEEN REMOVED FROM HOME, TO FACILITATE
RETURN OF THE CHILD.
  S 11. Subdivision 1 of section 398  of  the  social  services  law  is
amended to read as follows:
  1.  As  to  destitute  children: Assume charge of and provide CARE AND
support for any destitute child who cannot be properly cared for in  his
OR HER home, AND IF IT IS NECESSARY FOR THE COMMISSIONER TO TAKE CUSTODY
OF  THE  CHILD,  FILE  A  PETITION  PURSUANT  TO  SECTION  ONE  THOUSAND
NINETY-THREE OF THE FAMILY COURT ACT.
  S 12. Paragraph (i) of subdivision 6 of  section  398  of  the  social
services law is REPEALED.
  S  13. This act shall take effect immediately; provided, however, that
local commissioners of social services shall file petitions  under  this
act within ninety days of such effective date for any destitute child in
their care and custody on such effective date; and provided further that

S. 5694                             9

the amendments to subdivision (a) of section 249 of the family court act
made  by section two of this act shall survive the expiration and rever-
sion of such subdivision as provided in section 8 of chapter 29  of  the
laws of 2011, as amended.

S5694A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A7836A
Law Section:
Family Court Act
Laws Affected:
Rpld §1059, amd Fam Ct Act, generally; amd §398, rpld sub 6 ¶(i), Soc Serv L
Versions Introduced in 2011-2012 Legislative Session:
A7836A

S5694A (ACTIVE) - Bill Texts

view summary

Creates Article 10-C of the Family Court Act relating to destitute children.

view sponsor memo
BILL NUMBER:S5694A

TITLE OF BILL:
An act to amend the family court act and the social services law, in
relation to procedures for destitute children in the family court and
to repeal section 1059 of the family court act, relating to abandoned
children

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge Upon the recommendation of her Family
Court Advisory and Rules Committee.

This measure would establish "destitute child" as a discrete category
of Family Court proceeding, with attendant due process protections,
including right to counsel, for parents and children. It would
specifically authorize temporary placements, as well as dispositional
alternatives of release to the parent or parents, placement with the
county social services agency, relatives or other suitable individuals
or custody with relatives or suitable individuals. Similar to Family
Court Act § 1017, the measure would authorize the Family Court to
direct the social services agency to investigate other parents,
relatives or other suitable persons. If such persons are found
satisfactory and if removal of the child is determined to be necessary
to prevent imminent risk to the child, the court would be authorized
to place the child with such persons on a temporary basis. Analogous
to Family Court Act § 1015-a, the Court would be permitted to direct
agencies to provide services, to the extent authorized under their
comprehensive annual service plans, to assist destitute children and
their families in ameliorating the conditions that gave rise to the
need for court intervention. Where a destitute child is placed as a
disposition, the placement would be reviewed, as are all other
placements, through permanency hearings under Article 10-A of the
Family Court Act and the child and family would have all of the rights
to services and planning applicable under the permanency statute.
Similar amendments would be made to section 398 of the Social Services
Law to delineate the responsibility of local social services
departments to provide care and support for destitute children and, in
appropriate cases, to petition the Family Court.

Finally, this measure would repeal Family Court Act § 1059, as it is
anachronistic, conflicts with more recent legislation regarding
abandoned children and erroneously implies that termination of
parental rights proceedings should be routinely filed in situations
involving destitute and abandoned children. Section 1059 provides that
children found to be abandoned are to be "discharged" to the custody
of the local commissioner of social services, who must care for them
as "destitute" children or "as otherwise provided by law"and requires
Family Court to direct the local commissioner to institute proceedings
to terminate parental rights. The term "discharged" appears misplaced
in this context, since the dispositions available for destitute
children, including placement with, but not "discharge to" the local
commissioner of social services, are delineated in proposed Family
Court Act .1095. However, contrary to language in Family Court Act
.1059, termination of parental rights proceedings should not be
mandatory either for abandoned or destitute children, as alternatives,
including provision of preventive services or placements with


relatives or other suitable persons, may well be more appropriate to
the children's best interests in particular cases. Thus, section 1059
of the Family Court Act should be repealed.

Prior to enactment of the landmark permanency legislation [L. 2005, c.
3), proceedings to initiate and review the placement of destitute
children in foster care were commenced by petitions pursuant to Social
Services Law §392. The repeal of that statute left destitute children
without any procedural vehicle for placement into foster care, where
necessary, and for periodic review of that placement. Significantly,
repeal of that section left destitute children and their parents
without access to counsel and thus without an effective means of
requesting appropriate services. This measure would create a new
no-fault cause of action in a new Article 10-C of the Family Court Act
to supply that procedural vehicle. As the definition of "destitute
child" in Social Services Law §371 specifies, a child may be destitute
through no fault of the parents, i.e., where parents are deceased or
where there are no parents who can be held financially responsible for
the child's support. "Destitute child" is thus defined in proposed
Family Court Act § 1092(a) to mean a child who is not subject to a
child protective proceeding under Article 10 of the Family Court Act,
"is without a parent or person legally responsible to sufficiently
care for him or her, and is in a state of want or suffering due to
lack of sufficient food, clothing, shelter, or medical or surgical
care." These children do not fall into any other category: they are
not abused or neglected, persons in need of supervision, juvenile
delinquents or voluntarily placed, but many do need the assistance of
social service agencies and periodic oversight from the Family Court
to ensure permanence, stability and provision of necessary services.
In addition to ensuring access to Federal foster care reimbursement
under Title IV - E of the Social Security Act, this measure would
provide the procedural vehicle for fulfilling the New York State
Constitutional mandate to provide care and assistance to the needy.
See N.Y. Constitution, Art. XVII.

Moreover, in these difficult fiscal times, this measure is critically
important to relieve counties from shouldering 100% of the costs of
furnishing foster care to destitute children. While carrying no fiscal
implications at all for New York State, it will permit county social
services districts to qualify for Federal foster care reimbursement
for approximately half of the costs of care for destitute children who
qualify for Federal Title IV-E foster care assistance. But more
important, the measure would provide a vehicle for regular Family
Court oversight over the permanency planning efforts made by counties
on behalf of destitute children, thus resulting in a quicker exit from
foster care and achievement of permanency for these children.

This measure would take effect immediately.

2011 LEGISLATIVE HISTORY:
Senate 5694 (Saland) [Judiciary] Assembly 7836 (M. of A. Paulin, et
al) [Codes]

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

                                 5694--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 10, 2011
                               ___________

Introduced by Sen. SALAND -- (at request of the Office of Court Adminis-
  tration)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on Judiciary -- committee discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

AN ACT to amend the family court act and the  social  services  law,  in
  relation  to procedures for destitute children in the family court and
  to repeal section 1059 of the family court act, relating to  abandoned
  children

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

  Section 1. Subdivision (c) of section 115 of the family court act,  as
amended  by  section  1  of  part A of chapter 3 of the laws of 2005, is
amended to read as follows:
  (c) The family court has such other jurisdiction  as  is  provided  by
law,  including  but not limited to: proceedings concerning adoption and
custody of children, as set forth in parts two and three of article  six
of  this  act;  proceedings  concerning  the  uniform  interstate family
support act, as set forth in article five-B  of  this  act;  proceedings
concerning  children in foster care and care and custody of children, as
set forth in sections three  hundred  fifty-eight-a  and  three  hundred
eighty-four-a  of the social services law and article ten-A of this act;
proceedings concerning FORMER FOSTER CHILDREN AS SET  FORTH  IN  ARTICLE
TEN-B  OF  THIS  ACT;  PROCEEDINGS CONCERNING DESTITUTE CHILDREN, AS SET
FORTH IN ARTICLE TEN-C OF THIS ACT; PROCEEDINGS CONCERNING  guardianship
and  custody  of  children  by reason of the death of, or abandonment or
surrender by, the parent or parents, as  set  forth  in  sections  three
hundred eighty-three-c, three hundred eighty-four and paragraphs (a) and
(b)  of  subdivision  four of section three hundred eighty-four-b of the
social services law; proceedings  concerning  standby  guardianship  and
guardianship  of  the person as set forth in part four of article six of

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11155-05-1

S. 5694--A                          2

this act and article seventeen of the surrogate's court  procedure  act;
and  proceedings  concerning  the interstate compact on juveniles as set
forth in chapter one hundred fifty-five of the laws of nineteen  hundred
fifty-five, as amended, the interstate compact on the placement of chil-
dren, as set forth in section three hundred seventy-four-a of the social
services law, and the uniform child custody jurisdiction and enforcement
act, as set forth in article five-A of the domestic relations law.
  S  2.  Subdivision  (a)  of  section  249  of the family court act, as
amended by chapter 29 of the  laws  of  2011,  is  amended  to  read  as
follows:
  (a) In a proceeding under article three, seven, ten [or], ten-A, TEN-B
OR  TEN-C  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 custody under section one  hundred  fifty-eight  of
this  act  or  in  any  proceeding  where  a  minor is detained under or
governed by the interstate compact for juveniles established pursuant to
section five hundred one-e of the executive law, the family court  shall
appoint  an  attorney  to  represent  a  minor who is the subject of the
proceeding or who is sought to be placed in protective custody, if inde-
pendent 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  people  with  developmental  disabilities  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 assigned counsel. In any  other  proceeding  in
which  the  court has jurisdiction, the court may appoint an attorney to
represent the child, when, in the opinion of  the  family  court  judge,
such  representation 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.
  S 3. Paragraphs (i) and (iv) of subdivision (a) of section 262 of  the
family  court  act,  paragraph  (i) as amended by section 3 of part A of
chapter 3 of the laws of 2005 and paragraph (iv) as amended  by  chapter
437 of the laws of 2006, are amended to read as follows:
  (i)  the  respondent in any proceeding under article ten [or], article
ten-A OR ARTICLE TEN-C of this act and the petitioner in any  proceeding
under part eight of article ten of this act;
  (iv) the parent OR OTHER PERSON LEGALLY RESPONSIBLE, foster parent, or
other  person  having  physical  or  legal  custody  of the child in any
proceeding under article ten [or], ten-A, TEN-B OR TEN-C of this act  or
section  three hundred fifty-eight-a, three hundred eighty-four or three
hundred eighty-four-b of the social services law,  and  a  non-custodial
parent  or  grandparent  served with notice pursuant to paragraph (e) of
subdivision two of section three hundred  eighty-four-a  of  the  social
services law;
  S 4. Section 1059 of the family court act is REPEALED.
  S  5.  Section 1086 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. 5694--A                          3

  S 1086. Purpose. The purpose of this article is to  establish  uniform
procedures  for  permanency  hearings for all children who are placed in
foster care 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 twenty-two, one thou-
sand  twenty-seven,  [or]   one   thousand   fifty-two,   ONE   THOUSAND
EIGHTY-NINE,  ONE  THOUSAND  NINETY-ONE, ONE THOUSAND NINETY-FOUR OR ONE
THOUSAND NINETY-FIVE of this act; children who are directly placed  with
a  relative  pursuant  to section one thousand seventeen or one thousand
fifty-five of this act; and children who are freed for adoption.  It  is
meant to provide children placed out of their homes timely and effective
judicial review that promotes permanency, safety and well-being in their
lives.
  S  6.  Subdivision  (a)  of  section  1087 of the family court act, as
amended by chapter 342 of the laws  of  2010,  is  amended  to  read  as
follows:
  (a)  "Child"  shall  mean  a  person  under the age of eighteen who is
placed in foster care 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 twenty-two,  one  thou-
sand   twenty-seven,   [or]   one   thousand   fifty-two,  ONE  THOUSAND
EIGHTY-NINE, ONE THOUSAND NINETY-ONE, ONE THOUSAND  NINETY-FOUR  OR  ONE
THOUSAND  NINETY-FIVE  of  this  act; or directly placed with a relative
pursuant to section one thousand seventeen or one thousand fifty-five of
this act; or who has been freed for adoption or  a  person  between  the
ages  of  eighteen  and  twenty-one who has consented to continuation in
foster care or trial discharge status; or a  former  foster  care  youth
under  the  age  of  twenty-one for whom a court has granted a motion to
permit the former foster care youth to return  to  the  custody  of  the
local commissioner of social services or other officer, board or depart-
ment authorized to receive children as public charges.
  S  7.  Section  1088 of the family court act, as separately amended by
chapters 41 and 342 of the laws of 2010, 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, ONE THOUSAND EIGHTY-NINE, ONE
THOUSAND  NINETY-ONE,  ONE  THOUSAND   NINETY-FOUR   OR   ONE   THOUSAND
NINETY-FIVE  of this act, or directly placed with a relative pursuant to
section one thousand seventeen or one thousand 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  calen-
dar  and  the  court shall maintain jurisdiction over the case until the
child is discharged from placement and all orders regarding supervision,
protection or services have expired. The court shall rehear  the  matter
whenever  it  deems  necessary or desirable, or upon motion by any party
entitled to notice in proceedings under this article, or by the attorney
for the child, and whenever 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.  The  court shall also maintain jurisdiction over a
case for purposes of hearing a motion to permit  a  former  foster  care
youth  under  the  age of twenty-one who was discharged from foster care
due to a failure to consent to continuation of placement  to  return  to

S. 5694--A                          4

the  custody of the local commissioner of social services or other offi-
cer, board or department authorized to receive children as public charg-
es.
  S  8.  Paragraph  2  of  subdivision (a) of section 1089 of the family
court act, as amended by chapter 437 of the laws of 2006, is amended  to
read as follows:
  (2)  All  other  permanency hearings. At the conclusion of the hearing
pursuant to section one thousand twenty-two, one thousand  twenty-seven,
[or]  one  thousand  fifty-two,  ONE  THOUSAND EIGHTY-NINE, ONE THOUSAND
NINETY-ONE, ONE THOUSAND NINETY-FOUR OR ONE THOUSAND NINETY-FIVE of this
act at which the child was remanded  or  placed  and  upon  the  court's
approval  of  a voluntary placement instrument pursuant to section three
hundred fifty-eight-a of the social services law, the court shall set  a
date  certain  for  an initial permanency hearing, advise all parties in
court of the date set and include the date in the order.  Orders  issued
in subsequent court hearings prior to the permanency hearing, including,
but  not  limited  to, the order of placement issued pursuant to section
one thousand fifty-five of this act, shall include the date certain  for
the   permanency  hearing.  The  initial  permanency  hearing  shall  be
commenced no later than six months from the date  which  is  sixty  days
after  the  child  was  removed from his or her home; provided, however,
that if a sibling or half-sibling  of  the  child  has  previously  been
removed  from  the home and has a permanency hearing date certain sched-
uled within the next eight months, the permanency hearing for each child
subsequently removed from the home shall be scheduled on the  same  date
certain  that  has  been  set for the first child removed from the home,
unless such sibling or half-sibling  has  been  removed  from  the  home
pursuant  to  article three or seven of this act. The permanency hearing
shall be completed within thirty days of the scheduled date certain.
  S 9. Subdivision (a) of section 1090 of the family court act, as sepa-
rately amended by chapters 41 and 342 of the laws of 2010, is amended to
read as follows:
  (a) If an attorney for the child has  been  appointed  by  the  family
court  in a proceeding pursuant to THIS ARTICLE OR 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, TEN-B OR TEN-C of this act, the appointment of the attorney for the
child shall continue without further court order or appointment,  unless
another  appointment  of  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. The attorney
FOR  THE  CHILD  shall also represent the child without further order or
appointment in any proceedings under article ten-B OR TEN-C of this act.
All notices, reports and motions required by law shall  be  provided  to
[the child's] SUCH attorney. The [child's] attorney FOR THE CHILD 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 attorney to whom all notices,
reports, and motions required by law shall be provided.
  S 10. The family court act is amended by adding a new article 10-C  to
read as follows:
                              ARTICLE 10-C
                           DESTITUTE CHILDREN

SECTION 1092. DEFINITIONS.
        1093. ORIGINATING PROCEEDINGS.

S. 5694--A                          5

        1094. INITIAL APPEARANCE AND PRELIMINARY PROCEEDINGS.
        1095. FACT FINDING AND DISPOSITION.
  S  1092.  DEFINITIONS.  WHEN  USED IN THIS ARTICLE UNLESS THE SPECIFIC
CONTEXT INDICATES OTHERWISE:
  (A) "DESTITUTE CHILD" SHALL MEAN A CHILD WHO IS NOT SUBJECT TO ARTICLE
TEN OF THIS ACT, IS WITHOUT A PARENT OR PERSON  LEGALLY  RESPONSIBLE  TO
SUFFICIENTLY  CARE FOR HIM OR HER, AND  IS IN A STATE OF WANT OR SUFFER-
ING DUE TO LACK OF SUFFICIENT FOOD, CLOTHING,  SHELTER,  OR  MEDICAL  OR
SURGICAL CARE.
  (B)  "PARENT"  SHALL  MEAN ANY LIVING BIOLOGICAL OR ADOPTIVE PARENT OF
THE CHILD WHOSE RIGHTS HAVE NOT BEEN TERMINATED OR SURRENDERED.
  (C) "PERSON LEGALLY RESPONSIBLE" SHALL MEAN THE CUSTODIAN OR  GUARDIAN
OF  THE  DESTITUTE  CHILD OR ANY OTHER ADULT RESPONSIBLE FOR THE CARE OF
SUCH CHILD AT THE RELEVANT TIME.
  (D) "PERMANENCY HEARING" SHALL MEAN A HEARING IN ACCORDANCE WITH ARTI-
CLE TEN-A OF THIS ACT, AS DEFINED IN  SUBDIVISION  (K)  OF  SECTION  ONE
THOUSAND TWELVE OF THIS ACT.
  (E)  "COMMISSIONER  OF SOCIAL SERVICES" SHALL MEAN THE COMMISSIONER OF
THE LOCAL DEPARTMENT OF SOCIAL SERVICES OR, IN A  CITY  HAVING  A  POPU-
LATION  OF  ONE  MILLION  OR  MORE,  THE  ADMINISTRATION  FOR CHILDREN'S
SERVICES.
  S 1093. ORIGINATING PROCEEDINGS. (A) FILING OF THE PETITION. A COMMIS-
SIONER OF SOCIAL SERVICES MAY ORIGINATE A PROCEEDING UNDER THIS  ARTICLE
BY  FILING  A  PETITION  ALLEGING THAT THE CHILD IS A DESTITUTE CHILD AS
DEFINED BY SECTION ONE THOUSAND NINETY-TWO OF THIS  ARTICLE.  A  COMMIS-
SIONER  OF  SOCIAL SERVICES, WHO ACCEPTS THE CARE AND CUSTODY OF A CHILD
APPEARING TO BE A DESTITUTE CHILD, SHALL FILE  A  PETITION  PURSUANT  TO
THIS SECTION WITHIN FOURTEEN DAYS UPON ACCEPTING THE CARE AND CUSTODY OF
SUCH CHILD.
  (B)  VENUE. A PETITION UNDER THIS ARTICLE SHALL BE FILED IN THE FAMILY
COURT LOCATED IN THE COUNTY WHERE THE CHILD RESIDES OR IS  DOMICILED  OR
WHERE THE DEPARTMENT OF SOCIAL SERVICES IS LOCATED.
  (C)  CONTENTS  OF  THE  PETITION.  (1)  THE PETITION SHALL ALLEGE UPON
INFORMATION AND BELIEF:
  (I) THE MANNER, DATE AND CIRCUMSTANCE UNDER  WHICH  THE  CHILD  BECAME
KNOWN TO THE PETITIONER;
  (II) THE CHILD'S DATE OF BIRTH;
  (III)  THAT  THE  CHILD IS A DESTITUTE CHILD AS DEFINED IN SUBDIVISION
(A) OF SECTION ONE THOUSAND NINETY-TWO OF THIS ARTICLE AND THE BASIS FOR
THE ALLEGATION;
  (IV) THE IDENTITY OF THE PARENT OR PARENTS OF THE CHILD IN QUESTION;
  (V) WHETHER THE PARENT OR PARENTS OF THE CHILD ARE LIVING OR DECEASED;
  (VI) THE WHEREABOUTS AND LAST KNOWN ADDRESS FOR THE PARENT OR PARENTS;
  (VII) THE EFFORTS, IF ANY, WHICH WERE MADE PRIOR TO THE FILING OF  THE
PETITION  TO  PREVENT ANY REMOVAL OF THE CHILD FROM THE HOME AND IF SUCH
EFFORTS WERE NOT MADE, THE REASONS SUCH EFFORTS WERE NOT MADE; AND
  (VIII) IF THE CHILD HAD BEEN REMOVED FROM HOME PRIOR TO THE FILING  OF
THE  PETITION,  THE EFFORTS, IF ANY, WHICH WERE MADE PRIOR TO THE FILING
OF THE PETITION TO ALLOW THE CHILD TO RETURN SAFELY HOME,  AND  IF  SUCH
EFFORTS WERE NOT MADE, THE REASONS SUCH EFFORTS WERE NOT MADE.
  (2)  UNLESS  THE  PARENT  OR  PARENTS ARE DECEASED, THE PETITION SHALL
CONTAIN A NOTICE IN  CONSPICUOUS  PRINT  PROVIDING  THAT  IF  THE  CHILD
REMAINS IN FOSTER CARE FOR FIFTEEN OF THE MOST RECENT TWENTY-TWO MONTHS,
THE  AGENCY  MAY  BE  REQUIRED  BY  LAW  TO FILE A PETITION TO TERMINATE
PARENTAL RIGHTS.

S. 5694--A                          6

  (D) SERVICE OF SUMMONS. (1) UPON THE FILING OF A PETITION  UNDER  THIS
ARTICLE,  IF A LIVING PARENT OR PERSON LEGALLY RESPONSIBLE FOR THE CHILD
IS IDENTIFIED IN THE PETITION, THE COURT SHALL CAUSE A COPY OF THE PETI-
TION AND A SUMMONS TO BE ISSUED THE SAME  DAY  THE  PETITION  IS  FILED,
REQUIRING  SUCH  PARENT  OR  PERSON LEGALLY RESPONSIBLE FOR THE CHILD TO
APPEAR IN COURT ON THE RETURN DATE TO ANSWER THE PETITION.
  (2) SERVICE OF A SUMMONS AND PETITION UNDER THIS ARTICLE SHALL BE MADE
BY DELIVERY OF A TRUE COPY THEREOF TO THE PERSON SUMMONED AT LEAST TWEN-
TY-FOUR HOURS BEFORE THE TIME STATED THEREIN FOR APPEARANCE.
  (3) 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 EXER-
CISE OF PERSONAL JURISDICTION OVER ANY PERSON SUBJECT TO  THE  JURISDIC-
TION  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 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 ATTORNEY FOR THE CHILD PROCEED TO A
HEARING PURSUANT TO SECTION ONE THOUSAND NINETY-FIVE OF THIS ARTICLE.
  (4) IF AFTER REASONABLE EFFORT, PERSONAL  SERVICE  IS  NOT  MADE,  THE
COURT  MAY  AT  ANY STAGE IN THE PROCEEDINGS MAKE AN ORDER PROVIDING FOR
SUBSTITUTED SERVICE IN THE MANNER PROVIDED FOR  SUBSTITUTED  SERVICE  IN
CIVIL PROCESS IN COURTS OF RECORD.
  S  1094.  INITIAL  APPEARANCE AND PRELIMINARY PROCEEDINGS.  (A) AT THE
INITIAL APPEARANCE, THE COURT SHALL:
  (1) APPOINT AN ATTORNEY TO REPRESENT THE CHILD  AND,  IF  ENTERING  AN
APPEARANCE  AT  THE  INITIAL  APPEARANCE  OR  THEREAFTER,  THE PARENT OR
PARENTS OR OTHER PERSON OR PERSONS LEGALLY RESPONSIBLE;
  (2) (I) IF A PARENT OR PARENTS OR  OTHER  PERSON  OR  PERSONS  LEGALLY
RESPONSIBLE ENTERS AN APPEARANCE, DETERMINE WHETHER THE CHILD MAY SAFELY
REMAIN  IN  HIS OR HER OR THEIR HOME AND, IF APPROPRIATE, ORDER SERVICES
TO ASSIST THE FAMILY TOWARD THAT END;
  (II) DETERMINE WHETHER REMOVAL IS NECESSARY TO AVOID IMMINENT RISK  TO
THE  CHILD'S  LIFE  OR  HEALTH  AND  WHETHER IT WOULD BE CONTRARY TO THE
WELFARE OF THE CHILD TO CONTINUE IN HIS OR HER OWN  HOME,  AND,  IF  SO,
WHETHER  THE CHILD SHOULD BE PLACED IN THE TEMPORARY CARE AND CUSTODY OF
A RELATIVE OR OTHER SUITABLE PERSON OR IN THE TEMPORARY CARE AND CUSTODY
OF THE COMMISSIONER OF SOCIAL SERVICES;
  (III) UPON A  DETERMINATION  THAT  THE  CHILD  SHOULD  BE  TEMPORARILY
PLACED:
  (A) DIRECT THE PETITIONER TO INVESTIGATE WHETHER THERE ARE ANY PARENTS
OR  OTHER  PERSONS  LEGALLY RESPONSIBLE NOT NAMED IN THE PETITION OR ANY
OTHER RELATIVES OR OTHER SUITABLE PERSONS WITH WHOM THE CHILD MAY SAFELY
RESIDE AND, IF SO, DIRECT THE CHILD TO RESIDE TEMPORARILY IN THEIR CARE;
AND
  (B) IF A RELATIVE OR OTHER SUITABLE PERSON SEEKS APPROVAL TO CARE  FOR
THE  CHILD  AS  A  FOSTER  PARENT,  DIRECT THE PETITIONER TO COMMENCE AN
INVESTIGATION INTO THE HOME OF SUCH RELATIVE AND THEREAFTER APPROVE SUCH
RELATIVE OR OTHER SUITABLE PERSON, IF QUALIFIED,  AS  A  FOSTER  PARENT;
PROVIDED,  HOWEVER,  THAT  IF  SUCH  HOME IS FOUND TO BE UNQUALIFIED FOR
APPROVAL, THE PETITIONER SHALL REPORT SUCH FACT TO THE  COURT  FORTHWITH
AND,  IN THE CASE OF A RELATIVE WHO SEEKS APPROVAL TO CARE FOR THE CHILD
AS A FOSTER PARENT, THE RELATIVE MAY PROCEED IN ACCORDANCE WITH  SECTION
ONE THOUSAND TWENTY-EIGHT-A OF THIS ACT.
  (3)  SET  A  DATE CERTAIN FOR THE FACT FINDING AND DISPOSITION HEARING
PURSUANT TO SECTION ONE THOUSAND NINETY-FIVE OF THIS ARTICLE AND, IF THE

S. 5694--A                          7

CHILD IS TEMPORARILY PLACED, SET A DATE CERTAIN FOR THE INITIAL  PERMAN-
ENCY HEARING PURSUANT TO PARAGRAPH TWO OF SUBDIVISION (A) OF SECTION ONE
THOUSAND  EIGHTY-NINE  OF  THIS  ACT.  THE  DATE CERTAIN FOR THE INITIAL
PERMANENCY HEARING SHALL BE NO LATER THAN EIGHT MONTHS FROM THE DATE THE
SOCIAL SERVICES OFFICIAL ACCEPTED CARE OF THE CHILD;
  (4) DETERMINE WHETHER REASONABLE EFFORTS WERE MADE PRIOR TO THE PLACE-
MENT  OF THE CHILD INTO FOSTER CARE TO PREVENT OR ELIMINATE THE NEED FOR
REMOVAL OF THE CHILD FROM HIS OR HER HOME, AND IF SUCH EFFORTS WERE  NOT
MADE WHETHER THE LACK OF SUCH EFFORTS WERE APPROPRIATE UNDER THE CIRCUM-
STANCES;  DETERMINE,  WHERE APPROPRIATE, IF REASONABLE EFFORTS WERE MADE
TO MAKE IT POSSIBLE FOR THE CHILD TO RETURN SAFELY HOME; AND
  (5) INCLUDE THE FINDINGS MADE PURSUANT TO PARAGRAPHS ONE THROUGH  FOUR
OF THIS SUBDIVISION IN A WRITTEN ORDER.
  (B)  UNLESS  THERE  HAS  BEEN  A HEARING UNDER SUBDIVISION (A) OF THIS
SECTION AT WHICH THE PARENT OR PARENTS AND  CHILD'S  ATTORNEY  APPEARED,
THE PARENT OR PARENTS OF THE CHILD OR THE CHILD'S ATTORNEY MAY REQUEST A
HEARING  TO  DETERMINE  WHETHER A CHILD WHO HAS BEEN REMOVED FROM HIS OR
HER HOME SHOULD BE RETURNED AND,  IF  SO,  WHETHER  SERVICES  SHOULD  BE
ORDERED  TO  FACILITATE  SUCH  RETURN.  EXCEPT FOR GOOD CAUSE SHOWN, THE
HEARING SHALL BE HELD WITHIN THREE COURT DAYS OF THE REQUEST  AND  SHALL
NOT  BE  ADJOURNED.  THE COURT SHALL GRANT THE APPLICATION FOR RETURN OF
THE CHILD UNLESS IT FINDS THAT THE RETURN PRESENTS AN IMMINENT  RISK  TO
THE CHILD'S LIFE OR HEALTH.  IF IMMINENT RISK TO THE CHILD IS FOUND, THE
COURT  MAY  MAKE  ORDERS IN ACCORDANCE WITH PARAGRAPH TWO OF SUBDIVISION
(A) OF THIS SECTION, INCLUDING,  BUT  NOT  LIMITED  TO,  DIRECTIONS  FOR
INVESTIGATIONS  OF  RELATIVES  OR  OTHER  SUITABLE PERSONS WITH WHOM THE
CHILD MAY SAFELY RESIDE.
  S 1095. FACT FINDING AND DISPOSITION. (A) NO FACT FINDING HEARING  MAY
COMMENCE UNDER THIS ARTICLE UNLESS THE COURT ENTERS A FINDING:
  (1)  THAT  THE  PARENT  OR  PARENTS OR OTHER PERSON OR PERSONS LEGALLY
RESPONSIBLE FOR THE CHILD'S CARE IS OR ARE PRESENT AT  THE  HEARING  AND
HAS OR HAVE BEEN SERVED WITH A COPY OF THE PETITION; OR
  (2)  IF  THE  PARENT  OR  PARENTS  OR  OTHER PERSON OR PERSONS LEGALLY
RESPONSIBLE FOR THE CARE OF THE CHILD IS OR ARE LIVING BUT ARE NOT PRES-
ENT, THAT EVERY REASONABLE EFFORT HAS BEEN MADE TO EFFECT SERVICE  UNDER
SUBDIVISION (D) OF SECTION ONE THOUSAND NINETY-THREE OF THIS ARTICLE.
  (B)  THE  COURT  SHALL  SUSTAIN THE PETITION AND MAKE A FINDING THAT A
CHILD IS DESTITUTE IF, BASED UPON A PREPONDERANCE OF COMPETENT, MATERIAL
AND RELEVANT EVIDENCE PRESENTED, THE COURT FINDS THAT  THE  CHILD  MEETS
THE  DEFINITION  OF A DESTITUTE CHILD AS DESCRIBED IN SUBDIVISION (A) OF
SECTION ONE THOUSAND NINETY-TWO OF THIS ARTICLE.
  (C) IF THE COURT FINDS THAT THE CHILD DOES NOT MEET SUCH DEFINITION OF
A DESTITUTE CHILD OR THAT THE AID OF THE  COURT  IS  NOT  REQUIRED,  THE
COURT  SHALL  DISMISS THE PETITION; PROVIDED, HOWEVER, THAT IF THE COURT
FINDS THAT THE CHILD MAY BE IN NEED OF PROTECTION UNDER ARTICLE  TEN  OF
THIS  ACT,  THE COURT MAY REQUEST THE COMMISSIONER OF SOCIAL SERVICES TO
CONDUCT A CHILD PROTECTIVE INVESTIGATION IN ACCORDANCE WITH  SUBDIVISION
ONE  OF  SECTION  ONE  THOUSAND THIRTY-FOUR OF THIS ACT. THE COURT SHALL
STATE THE GROUNDS FOR ANY FINDING UNDER THIS SUBDIVISION.
  (D) IF THE COURT SUSTAINS THE PETITION PURSUANT TO SUBDIVISION (B)  OF
THIS  SECTION, IT MAY IMMEDIATELY CONVENE A DISPOSITIONAL HEARING OR MAY
ADJOURN THE PROCEEDING FOR FURTHER INQUIRIES TO BE MADE PRIOR TO  DISPO-
SITION.  BASED  UPON  MATERIAL  AND  RELEVANT  EVIDENCE PRESENTED AT THE
DISPOSITIONAL HEARING, THE COURT SHALL ENTER  AN  ORDER  OF  DISPOSITION
STATING  THE  GROUNDS  FOR  ITS ORDER AND DIRECTING ONE OF THE FOLLOWING
ALTERNATIVES:

S. 5694--A                          8

  (1) RELEASING THE CHILD TO HIS OR  HER  PARENT  OR  PARENTS  OR  OTHER
PERSON OR PERSONS LEGALLY RESPONSIBLE;
  (2)  PLACING  THE CHILD IN THE CARE AND CUSTODY OF THE COMMISSIONER OF
SOCIAL SERVICES;
  (3) PLACING THE CHILD IN THE CARE AND CUSTODY OF RELATIVES OR SUITABLE
PERSONS; OR
  (4) GRANTING AN ORDER OF CUSTODY OR GUARDIANSHIP TO RELATIVES OR SUIT-
ABLE PERSONS PURSUANT TO A PETITION UNDER ARTICLE SIX OF THIS ACT AND IN
ACCORDANCE  WITH  THE  FINDINGS  REQUIRED  BY   SECTION   ONE   THOUSAND
FIFTY-FIVE-B OF THIS ACT.
  (E)  IF  THE CHILD HAS BEEN PLACED PURSUANT TO PARAGRAPHS TWO OR THREE
OF SUBDIVISION (D) OF THIS SECTION, THE COURT SHALL INCLUDE THE  FOLLOW-
ING IN ITS ORDER:
  (1) A DATE CERTAIN FOR THE PERMANENCY HEARING IN ACCORDANCE WITH PARA-
GRAPH TWO OF SUBDIVISION (A) OF SECTION ONE THOUSAND EIGHTY-NINE OF THIS
ARTICLE;
  (2)  UNLESS  THE CHILD'S PARENT OR PARENTS ARE DECEASED, A DESCRIPTION
OF THE PLAN FOR THE CHILD TO VISIT WITH HIS OR  HER  PARENT  OR  PARENTS
UNLESS CONTRARY TO THE CHILD'S BEST INTERESTS;
  (3) A DIRECTION THAT THE CHILD BE PLACED TOGETHER WITH OR, AT MINIMUM,
TO  VISIT  AND  HAVE REGULAR COMMUNICATION WITH, HIS OR HER SIBLINGS, IF
ANY, UNLESS CONTRARY TO THE BEST  INTERESTS  OF  THE  CHILD  AND/OR  THE
SIBLINGS;
  (4)  UNLESS  THE  CHILD'S  PARENT OR PARENTS ARE DECEASED, A DIRECTION
THAT THE CHILD'S PARENT OR PARENTS BE NOTIFIED OF ANY  PLANNING  CONFER-
ENCES  TO  BE HELD PURSUANT TO SUBDIVISION THREE OF SECTION FOUR HUNDRED
NINE-E OF THE SOCIAL SERVICES LAW, OF THEIR RIGHT TO ATTEND SUCH CONFER-
ENCES AND TO HAVE COUNSEL OR ANOTHER REPRESENTATIVE  OR  COMPANION  WITH
THEM;
  (5)  IF  THE  CHILD IS OR WILL BE FOURTEEN OR OLDER BY THE DATE OF THE
PERMANENCY HEARING, THE SERVICES AND ASSISTANCE THAT MAY BE NECESSARY TO
ASSIST THE CHILD IN LEARNING INDEPENDENT LIVING SKILLS; AND
  (6) UNLESS THE CHILD'S PARENT OR PARENTS ARE DECEASED, A NOTICE  THAT,
IF THE CHILD REMAINS IN FOSTER CARE FOR FIFTEEN OF THE MOST RECENT TWEN-
TY-TWO  MONTHS,  THE AGENCY MAY BE REQUIRED BY LAW TO FILE A PETITION TO
TERMINATE PARENTAL RIGHTS.
  (F) IF THE CHILD HAS BEEN PLACED PURSUANT TO PARAGRAPH TWO OR THREE OF
SUBDIVISION (D) OF THIS SECTION, THE PROVISIONS OF PART EIGHT OF ARTICLE
TEN OF THIS ACT SHALL BE APPLICABLE.
  (G) IF THE COURT MAKES AN ORDER PURSUANT  TO  PARAGRAPH  ONE,  TWO  OR
THREE OF SUBDIVISION (D) OF THIS SECTION, THE COURT MAY INCLUDE A DIREC-
TION  FOR  THE COMMISSIONER OF SOCIAL SERVICES TO PROVIDE OR ARRANGE FOR
SERVICES OR ASSISTANCE,  AUTHORIZED  TO  BE  MADE  AVAILABLE  UNDER  THE
COMPREHENSIVE ANNUAL SERVICES PROGRAM PLAN THEN IN EFFECT, TO AMELIORATE
THE  CONDITIONS  THAT  FORMED  THE BASIS FOR THE FACT-FINDING UNDER THIS
SECTION AND, IF THE CHILD HAS BEEN  REMOVED  FROM  HOME,  TO  FACILITATE
RETURN OF THE CHILD.
  S  11.  Subdivision  1  of  section  398 of the social services law is
amended to read as follows:
  1. As to destitute children: Assume charge of  and  provide  CARE  AND
support  for any destitute child who cannot be properly cared for in his
OR HER home, AND IF IT IS NECESSARY FOR THE COMMISSIONER TO TAKE CUSTODY
OF  THE  CHILD,  FILE  A  PETITION  PURSUANT  TO  SECTION  ONE  THOUSAND
NINETY-THREE OF THE FAMILY COURT ACT.
  S  12. This act shall take effect immediately; provided, however, that
local commissioners of social services shall file petitions  under  this

S. 5694--A                          9

act within ninety days of such effective date for any destitute child in
their care and custody on such effective date; and provided further that
the amendments to subdivision (a) of section 249 of the family court act
made  by section two of this act shall survive the expiration and rever-
sion of such subdivision as provided in section 8 of chapter 29  of  the
laws of 2011, as amended.

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