S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7681
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 19, 2021
                                ___________
 
 Introduced  by  M. of A. FERNANDEZ -- (at request of the Office of Court
   Administration) -- read once and referred to the Committee on Children
   and Families
 
 AN ACT to amend the family court act and the executive law, in  relation
   to reentry of former foster care children into foster care

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 6 of section 355.3 of the family court act,  as
 amended  by section 75 of part WWW of chapter 59 of the laws of 2017, is
 amended and a new subdivision 7 is added to read as follows:
   6. Successive extensions of placement under this section may be grant-
 ed, but no placement may be made or continued  beyond  the  respondent's
 eighteenth  birthday  without [the child's] HIS OR HER consent [for acts
 committed before the respondent's sixteenth birthday] and  in  no  event
 past  [the  child's] HIS OR HER twenty-first birthday except as provided
 for in subdivision four of section 353.5 of this part.
   7. A YOUTH WHO WAS FORMERLY A RESPONDENT PURSUANT TO THIS ARTICLE  MAY
 BE  ELIGIBLE  TO FILE A MOTION PURSUANT TO ARTICLE TEN-B OF THIS ACT AND
 MAY BE SUBSEQUENTLY PLACED INTO FOSTER CARE, IN A SUPERVISED SETTING  AS
 DEFINED  IN  SUBDIVISION TWENTY-TWO OF SECTION THREE HUNDRED SEVENTY-ONE
 OF THE SOCIAL SERVICES LAW OR PLACEMENT IN A FOSTER FAMILY  HOME,  WHICH
 SHALL INCLUDE A KINSHIP PLACEMENT OR A PLACEMENT WITH FICTIVE KIN.
   §  2. Section 756-a of the family court act is amended by adding a new
 subdivision (i) to read as follows:
   (I) A YOUTH WHO WAS FORMERLY A RESPONDENT  PURSUANT  TO  THIS  ARTICLE
 SHALL BE ELIGIBLE TO FILE A MOTION PURSUANT TO ARTICLE TEN-B OF THIS ACT
 AND MAY BE SUBSEQUENTLY PLACED INTO FOSTER CARE, IN A SUPERVISED SETTING
 AS  DEFINED  IN SUBDIVISION TWENTY-TWO OF SECTION THREE HUNDRED SEVENTY-
 ONE OF THE SOCIAL SERVICES LAW OR PLACEMENT IN  A  FOSTER  FAMILY  HOME,
 WHICH SHALL INCLUDE A KINSHIP PLACEMENT OR A PLACEMENT WITH FICTIVE KIN.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10135-02-1
              

 A. 7681                             2
 
   §  3.  Paragraph  (i) and the opening paragraph of subparagraph (A) of
 paragraph (ii) of subdivision (e) of section 1055 of  the  family  court
 act,  as  amended by chapter 34 of the laws of 2021, are amended to read
 as follows:
   (i)  No  placement  may be made or continued under this section beyond
 the child's eighteenth birthday without his or her  consent  and  in  no
 event  past  his  or her twenty-first birthday. However, a former foster
 care youth [under the age of twenty-one who  was  previously  discharged
 from  foster  care due to a failure to consent to continuation of place-
 ment], AS DEFINED IN SECTION ONE THOUSAND NINETY-ONE OF  THIS  ACT,  may
 make  a motion pursuant to SUCH section [one thousand ninety-one of this
 act] to return to the  custody  of  the  local  commissioner  of  social
 services  or  other  officer,  board or department authorized to receive
 children as public charges. In such motion, the youth  must  consent  to
 enrollment  in  and attendance at a vocational or educational program in
 accordance with paragraph  [two]  THREE  of  subdivision  [(a)]  (D)  of
 section one thousand ninety-one of this act.
   A former foster care youth [under the age of twenty-one who was previ-
 ously discharged from foster care due to a failure to consent to contin-
 uation  of  placement  pursuant  to], AS DEFINED IN section one thousand
 ninety-one of this act, may:
   § 4.  Section 1088 of the family court act, as amended by chapter  605
 of the laws of 2011, is amended to read as follows:
   § 1088. Continuing court jurisdiction. (A) If a child is placed pursu-
 ant  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,  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 SIX HUNDRED THIRTY-ONE
 OF THIS ACT OR  SECTION  three  hundred  eighty-three-c,  three  hundred
 eighty-four  or  three hundred eighty-four-b of the social services law,
 the case shall remain on the court's calendar and the court shall  main-
 tain  jurisdiction  over  the  case  until  the child is discharged from
 placement and all orders regarding supervision, protection  or  services
 have expired.
   (B)  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 main-
 tains jurisdiction over the case, the provisions of section one thousand
 thirty-eight of this act shall continue to apply.
   (C) 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 fail-
 ure  to  consent  to  continuation  of placement], AS DEFINED IN ARTICLE
 TEN-B OF THIS ACT, to return to the custody of the  [local  commissioner
 of] social services [or other officer, board or department authorized to
 receive  children  as  public charges] DISTRICT FROM WHICH THE YOUTH WAS
 MOST RECENTLY DISCHARGED OR, IN THE CASE OF A  YOUTH  PREVIOUSLY  PLACED
 WITH  THE  OFFICE  OF  CHILDREN AND FAMILY SERVICES FOR PLACEMENT, TO BE
 PLACED IN THE CUSTODY OF THE SOCIAL SERVICES  DISTRICT  OF  THE  CHILD'S
 RESIDENCE  OR, IN THE CASE OF A CHILD FREED FOR ADOPTION, THE AUTHORIZED
 AGENCY INTO WHOSE CUSTODY AND GUARDIANSHIP THE CHILD HAS BEEN PLACED.

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   § 5. Section 1091 of the family court act, as added by chapter 342  of
 the  laws  of 2010 and the opening paragraph as amended by chapter 34 of
 the laws of 2021, is amended to read as follows:
   §  1091.  Motion to return to foster care placement.  (A) FOR PURPOSES
 OF THIS ARTICLE:
   (1) "FORMER FOSTER CARE YOUTH" SHALL MEAN A YOUTH:
   (I) WHO HAS ATTAINED THE AGE OF EIGHTEEN BUT IS UNDER THE AGE OF TWEN-
 TY-ONE AND WHO HAD BEEN DISCHARGED FROM A  FOSTER  CARE  SETTING  ON  OR
 AFTER:
   (A)  ATTAINING  THE  AGE  OF  EIGHTEEN  DUE TO A FAILURE TO CONSENT TO
 CONTINUATION IN FOSTER CARE; OR
   (B) ATTAINING THE AGE OF SIXTEEN BUT WHO IS OR IS LIKELY TO  BE  HOME-
 LESS UNLESS RETURNED TO FOSTER CARE; AND
   (II)(A) PLACED IN FOSTER CARE WITH A LOCAL SOCIAL SERVICES DISTRICT OR
 AUTHORIZED AGENCY, AS APPLICABLE, PURSUANT TO ARTICLE THREE, SEVEN, TEN,
 TEN-A OR TEN-C OF THIS ACT OR SECTION THREE HUNDRED FIFTY-EIGHT-A OF THE
 SOCIAL SERVICES LAW; OR
   (B)  FREED FOR ADOPTION IN ACCORDANCE WITH SECTION SIX HUNDRED THIRTY-
 ONE OF THIS ACT OR SECTION THREE HUNDRED EIGHTY-THREE-C,  THREE  HUNDRED
 EIGHTY-FOUR  OR  THREE  HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW
 BUT HAS NOT YET BEEN ADOPTED; OR
   (C) PLACED WITH THE OFFICE OF CHILDREN AND FAMILY SERVICES AS A  JUVE-
 NILE DELINQUENT FOR A NON-SECURE LEVEL OF CARE PURSUANT TO ARTICLE THREE
 OF THIS ACT.
   (2) "FOSTER CARE SETTING" SHALL NOT INCLUDE PLACEMENTS IN:
   (I)  (A)  A  LIMITED SECURE OR SECURE LEVEL OF CARE WITH THE OFFICE OF
 CHILDREN AND FAMILY SERVICES; OR
   (B) A LIMITED SECURE LEVEL OF CARE WHERE THE PLACEMENT WAS MADE  IN  A
 COUNTY  THAT HAS AN APPROVED "CLOSE TO HOME" PROGRAM PURSUANT TO SECTION
 FOUR HUNDRED FOUR OF THE SOCIAL SERVICES LAW.
   (II) PROVIDED HOWEVER, A YOUTH WHO WAS PREVIOUSLY PLACED IN A  LIMITED
 SECURE  OR  SECURE  LEVEL  OF CARE BUT WAS SUBSEQUENTLY TRANSFERRED TO A
 NON-SECURE LEVEL OF CARE MAY STILL BE ELIGIBLE TO RE-ENTER IF SUCH YOUTH
 WAS ULTIMATELY RELEASED FROM A NON-SECURE SETTING.
   (B) A motion to return 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  the  custody  of  the  [local
 commissioner  of] social services [or other officer, board or department
 authorized to receive children as public charges]  DISTRICT  FROM  WHICH
 THE  YOUTH  WAS  MOST  RECENTLY  DISCHARGED,  OR, IN THE CASE OF A YOUTH
 PREVIOUSLY PLACED WITH THE OFFICE OF CHILDREN AND FAMILY SERVICES, TO BE
 PLACED IN THE CUSTODY OF THE SOCIAL SERVICES  DISTRICT  OF  THE  CHILD'S
 RESIDENCE,  OR,  IN  THE  CASE OF A CHILD FREED FOR ADOPTION, THE SOCIAL
 SERVICES DISTRICT OR AUTHORIZED AGENCY INTO WHOSE CUSTODY AND  GUARDIAN-
 SHIP  SUCH CHILD HAS BEEN PLACED, may be made by such former foster care
 youth, or by [a] THE APPLICABLE OFFICIAL OF THE  local  social  services
 [official]  DISTRICT,  AUTHORIZED  AGENCY  OR THE OFFICE OF CHILDREN AND
 FAMILY SERVICES upon the consent of such former foster  care  youth,  if
 there is a compelling reason for such former foster care youth to return
 to foster care[; provided however, that the].
   (C)  (1)  WITH  RESPECT TO A FORMER FOSTER CARE YOUTH DISCHARGED ON OR
 AFTER HIS OR HER EIGHTEENTH BIRTHDAY, THE court shall  not  entertain  a
 motion  filed  after twenty-four months from the date of the first final
 discharge that occurred on or after the former foster care youth's eigh-
 teenth birthday; provided further, however, that  during  the  state  of
 emergency declared pursuant to Executive Order 202 of 2020 or any exten-

 A. 7681                             4

 sion or subsequent executive order issued in response to the novel coro-
 navirus  (COVID-19)  pandemic, such motion shall be heard and determined
 on an expedited basis; provided further,  a  former  foster  care  youth
 shall  be entitled to return to the custody of the local commissioner of
 social services or other officer,  board  or  department  authorized  to
 receive  children  as public charges without making a motion pursuant to
 this section and, to the extent federally allowable, any requirement  to
 enroll  in  and  attend  an  educational  or vocational program shall be
 waived for the duration of such state  of  emergency.  Subsequent  to  a
 former  foster  youth's  return to placement without making a motion, as
 authorized under this section during the  state  of  emergency  declared
 pursuant  to  Executive Order 202 of 2020 or any extension or subsequent
 executive order issued in response to the novel  coronavirus  (COVID-19)
 pandemic,  nothing  herein  shall  prohibit  the  local  social services
 district from filing a motion for requisite findings  needed  to  subse-
 quently claim reimbursement under Title IV-E of the federal social secu-
 rity  act  to  support the youth's care, and the family court shall hear
 and determine such motions on an expedited basis.
   [(a)] (2) WITH RESPECT TO A FORMER FOSTER CARE YOUTH DISCHARGED  PRIOR
 TO  HIS  OR  HER  EIGHTEENTH  BIRTHDAY,  THE COURT SHALL NOT ENTERTAIN A
 MOTION FILED AFTER HIS OR  HER  TWENTIETH  BIRTHDAY;  PROVIDED  FURTHER,
 HOWEVER,  THAT DURING THE STATE OF EMERGENCY DECLARED PURSUANT TO EXECU-
 TIVE  ORDER 202 OF 2020, OR ANY EXTENSION OR  SUBSEQUENT  ORDER  ISSUED,
 SUCH  FORMER  FOSTER YOUTH SHALL BE ENTITLED TO RETURN TO THE CUSTODY OF
 THE LOCAL COMMISSIONER OF SOCIAL SERVICES OR  OTHER  OFFICER,  BOARD  OR
 DEPARTMENT  AUTHORIZED  TO  RECEIVE  CHILDREN  AS PUBLIC CHARGES WITHOUT
 MAKING A MOTION IN ACCORDANCE WITH  PARAGRAPH  ONE OF  THIS  SUBDIVISION
 AND,  TO  THE  EXTENT  FEDERALLY ALLOWABLE, ANY REQUIREMENT TO ENROLL IN
 AND ATTEND AN EDUCATIONAL OR VOCATIONAL PROGRAM SHALL BE WAIVED FOR  THE
 DURATION  OF  THE  STATE  OF  EMERGENCY.  SUBSEQUENT  TO A FORMER FOSTER
 YOUTH'S RETURN TO PLACEMENT WITHOUT MAKING A MOTION, AS AUTHORIZED UNDER
 THIS SECTION DURING THE STATE OF EMERGENCY DECLARED PURSUANT  TO  EXECU-
 TIVE  ORDER  202  OF 2020 OR ANY EXTENSION OR SUBSEQUENT EXECUTIVE ORDER
 ISSUED IN RESPONSE TO THE NOVEL CORONAVIRUS (COVID-19) PANDEMIC, NOTHING
 HEREIN SHALL PROHIBIT THE LOCAL SOCIAL SERVICES DISTRICT FROM  FILING  A
 MOTION FOR REQUISITE FINDINGS NEEDED TO SUBSEQUENTLY CLAIM REIMBURSEMENT
 UNDER  TITLE  IV-E  OF  THE  FEDERAL  SOCIAL SECURITY ACT TO SUPPORT THE
 YOUTH'S CARE, AND THE FAMILY COURT SHALL HEAR AND DETERMINE SUCH MOTIONS
 ON AN EXPEDITED BASIS.
   (D) A motion made pursuant to this [section] ARTICLE by [a] THE APPLI-
 CABLE OFFICIAL OF THE LOCAL social services [official] DISTRICT, AUTHOR-
 IZED AGENCY OR THE OFFICE OF CHILDREN AND FAMILY SERVICES shall be  made
 by  order  to  show  cause. Such motion shall show by affidavit or other
 evidence that:
   (1) the former foster care youth  has  no  reasonable  alternative  to
 foster care;
   (2)  PREVENTIVE  SERVICES  UNDER  SECTION  FOUR  HUNDRED NINE-A OF THE
 SOCIAL SERVICES LAW OR SECTION FIVE HUNDRED ONE OF THE EXECUTIVE LAW, AS
 APPLICABLE, HAVE BEEN OFFERED TO THE FORMER FOSTER CARE YOUTH BUT  WOULD
 NOT AVERT THE NEED FOR FOSTER CARE;
   (3) the former foster care youth consents to enrollment in and attend-
 ance  at  an  appropriate  educational  or  vocational  program,  unless
 evidence is submitted that such enrollment or attendance is  unnecessary
 or inappropriate, given the particular circumstances of the youth;
   [(3)]  (4)  re-entry  into foster care is in the best interests of the
 former foster care youth; [and

 A. 7681                             5

   (4)] (5) the former foster care youth consents to  the  re-entry  into
 foster care; AND
   (6)  IN  THE CASE OF A FORMER FOSTER YOUTH DISCHARGED FROM FOSTER CARE
 ON OR AFTER ATTAINING THE AGE OF SIXTEEN, THE YOUTH IS OR IS  LIKELY  TO
 BE HOMELESS UNLESS RETURNED TO FOSTER CARE.
   [(b)] (E) A motion made pursuant to this [section] ARTICLE by a former
 foster  care youth shall be made by order to show cause [or] ON ten days
 notice to the APPLICABLE OFFICIAL OF THE LOCAL  social  services  [offi-
 cial]  DISTRICT,  AUTHORIZED AGENCY OR THE OFFICE OF CHILDREN AND FAMILY
 SERVICES.  Such motion shall show by affidavit or other evidence that:
   (1) the requirements outlined in paragraphs  one,  two  [and],  three,
 four  AND, IF APPLICABLE, PARAGRAPH SIX of subdivision [(a)] (D) of this
 section are met; and
   (2) (I) the applicable OFFICIAL OF THE local social services district,
 AUTHORIZED AGENCY OR THE OFFICE OF CHILDREN AND FAMILY SERVICES consents
 to the re-entry of such former foster care youth, or [if]
   (II) the applicable OFFICIAL OF THE local  social  services  district,
 AUTHORIZED  AGENCY OR THE OFFICE OF CHILDREN AND FAMILY SERVICES refuses
 to consent to the re-entry of such former foster care  youth  [and  that
 such refusal is unreasonable].
   [(c)]  (F)  (1)  If  at  any  time during the pendency of a proceeding
 brought pursuant to this [section] ARTICLE, the court finds a compelling
 reason that it is in the best interests of the former foster care  youth
 to  be  returned  immediately  to  the  custody  of the APPLICABLE local
 commissioner of social services or [other officer, board  or  department
 authorized to receive children as public charges] OFFICIAL OF THE APPLI-
 CABLE  AUTHORIZED  AGENCY OR THE OFFICE OF CHILDREN AND FAMILY SERVICES,
 pending a final decision on the motion, the court may issue a  temporary
 order returning the youth to the custody of [the] SUCH local commission-
 er  of social services or other [officer, board or department authorized
 to receive children as public charges] OFFICIAL.
   (2) Where  the  APPLICABLE  OFFICIAL  OF  THE  local  social  services
 district,  AUTHORIZED  AGENCY  OR  THE  OFFICE  OF  CHILDREN  AND FAMILY
 SERVICES has refused to consent to the re-entry of a former foster  care
 youth, [and where it is alleged pursuant to paragraph two of subdivision
 (b)  of this section, that such refusal by such social services district
 is unreasonable,] the court shall grant a motion made pursuant to subdi-
 vision [(b)] (E) of this section if the court finds and states in  writ-
 ing  that  the refusal [by the local social services district] is unrea-
 sonable. For purposes of this [section] ARTICLE, a court shall find that
 a refusal [by a local social services district] to allow a former foster
 care youth to re-enter care is unreasonable if:
   (i) the youth has no reasonable alternative to foster care;
   (ii) PREVENTIVE SERVICES UNDER SECTION  FOUR  HUNDRED  NINE-A  OF  THE
 SOCIAL SERVICES LAW OR SECTION FIVE HUNDRED ONE OF THE EXECUTIVE LAW, AS
 APPLICABLE,  HAVE BEEN OFFERED TO THE FORMER FOSTER CARE YOUTH BUT WOULD
 NOT AVERT THE NEED FOR FOSTER CARE;
   (III) the youth consents to enrollment in and attendance at an  appro-
 priate  educational  or  vocational  program,  unless  the court finds a
 compelling reason that such enrollment or attendance is  unnecessary  or
 inappropriate, given the particular circumstances of the youth; and
   [(iii)] (IV) re-entry into foster care is in the best interests of the
 former foster CARE youth.
   (3)  Upon  making  a  determination on a motion filed pursuant to this
 [section] ARTICLE, where a motion has previously been  granted  pursuant
 to  this  [section]  ARTICLE,  in  addition  to  the applicable findings

 A. 7681                             6
 
 required by this [section] ARTICLE, the court shall grant the motion  to
 return a former foster care youth to the custody of the APPLICABLE local
 commissioner  of  social services or [other officer, board or department
 authorized to receive children as public charges] OFFICIAL OF THE APPLI-
 CABLE  AUTHORIZED  AGENCY OR THE OFFICE OF CHILDREN AND FAMILY SERVICES,
 only:
   (i) upon a finding that there is a compelling reason for  such  former
 foster care youth to return to care;
   (ii)  IF  PREVENTIVE SERVICES UNDER SECTION FOUR HUNDRED NINE-A OF THE
 SOCIAL SERVICES LAW OR SECTION FIVE HUNDRED ONE OF THE EXECUTIVE LAW, AS
 APPLICABLE, HAVE BEEN OFFERED TO THE FORMER FOSTER CARE YOUTH BUT  WOULD
 NOT AVERT THE NEED FOR FOSTER CARE;
   (III)  if the court has not previously granted a subsequent motion for
 such former foster care youth to return to care pursuant to  this  para-
 graph; and
   [(iii)]  (IV)  upon  consideration  of  the former foster care youth's
 compliance with previous orders of  the  court,  including  the  youth's
 previous  participation  in  an  appropriate  educational  or vocational
 program, if applicable.
   § 6. Subdivision 5 of section 507-a of the executive law,  as  amended
 by  section 80 of part WWW of chapter 59 of the laws of 2017, is amended
 to read as follows:
   5. Consistent with other provisions of law, in the discretion  of  the
 commissioner of the office of children and family services, youth placed
 within the office under the family court act who attain the age of eigh-
 teen  while  in custody of the office and who are not required to remain
 in the placement with the office as a result of a dispositional order of
 the family court may reside in a PLACEMENT IN AN AUTHORIZED AGENCY OR  A
 non-secure  facility  until  the  age  of twenty-one, provided that such
 youth attend a full-time vocational or educational program and are like-
 ly to benefit from such program.
   § 7. This act shall take effect immediately; provided,  however,  that
 the amendments to section 1055 and the opening paragraph of section 1091
 of  the  family  court  act  made by sections three and five of this act
 shall not affect the expiration of such subdivision  and  paragraph  and
 shall be deemed to expire therewith.