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This entry was published on 2022-11-18
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SECTION 1091
Motion to return to foster care placement
Family Court Act (FCT) CHAPTER 686, ARTICLE 10-B
§ 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
twenty-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
homeless 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
juvenile 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 to the custody of
the social services 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 guardianship such child has been placed,
may be made by such former foster care youth, or by the applicable
official of the local social services 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.

(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
eighteenth birthday.

(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 Executive 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 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 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 article by the applicable official
of the local social services district, authorized 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) the former foster care youth consents to enrollment in and
attendance 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) re-entry into foster care is in the best interests of the former
foster care youth;

(4) the former foster care youth consents to the re-entry into foster
care; and

(5) 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.

(e) A motion made pursuant to this article by a former foster care
youth shall be made by order to show cause on ten days notice to the
applicable official of the local social services 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, three, four and,
if applicable, paragraph five of subdivision (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

(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.

(f) (1) If at any time during the pendency of a proceeding brought
pursuant to this 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 official of the applicable 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 such local commissioner of social services or other 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, the court shall grant a motion made pursuant to subdivision (e)
of this section if the court finds and states in writing that the
refusal is unreasonable. For purposes of this article, a court shall
find that a refusal 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) the youth consents to enrollment in and attendance at an
appropriate 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) 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
article, where a motion has previously been granted pursuant to this
article, in addition to the applicable findings required by this
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 official of the applicable 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 the court has not previously granted a subsequent motion for
such former foster care youth to return to care pursuant to this
paragraph; and

(iii) 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.