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This entry was published on 2018-01-26
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SECTION 1095
Fact finding and disposition
Family Court Act (FCT) CHAPTER 686, ARTICLE 10-C
§ 1095. Fact finding and disposition. (a) No fact finding hearing may
commence under this article unless the court enters a finding that all
parties are present at the hearing and have been served with a copy of
the petition, provided however, that if any party is or are living but
are not present, that the court may proceed if 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. If the proof does not
conform to the specific allegations of the petition, the court may amend
the allegations to conform to the proof if no party objects to such
conformation.

(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, and if applicable, return a child who
was placed in the temporary care of the commissioner of social services
to any parent, caretaker or interested adult; 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
disposition provided however, that if a petition pursuant to article six
of this act has been filed by a person or persons seeking custody or
guardianship of the child, or if a petition pursuant to article
seventeen of the surrogate's court procedure act seeking guardianship of
the child has been filed, the court shall consolidate the dispositional
hearing with a hearing under section one thousand ninety-six of this
article, unless consolidation would not be appropriate under the
circumstances. If the court does not consolidate such dispositional
proceedings it shall hold the dispositional hearing under this section
in abeyance pending the disposition of the petition filed pursuant to
article six of this act or article seventeen of the surrogate's court
procedure act. 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) placing the child in the care and custody of the commissioner of
social services; or

(2) granting an order of custody or guardianship to relatives or
suitable persons pursuant to a petition under article six of this act or
guardianship of the child to a relative or suitable person under article
seventeen of the surrogate's court procedure act and in accordance with
section one thousand ninety-six of this article.

(e) If the child has been placed pursuant to paragraph one of
subdivision (d) of this section, the court shall include the following
in its order:

(1) a date certain for the permanency hearing in accordance with
paragraph two of subdivision (a) of section one thousand eighty-nine of
this act;

(2) 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 and may incorporate an order issued pursuant to part eight of
article ten of this chapter in accordance with subdivision (f) of this
section;

(4) a direction that the child's parent or parents be notified of any
planning conferences to be held pursuant to subdivision three of section
four hundred nine-e of the social services law, of their right to attend
such conferences 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) a notice 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.

(f) If the child has been placed pursuant to paragraph one 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 of
subdivision (d) of this section, the court may include a direction for
the commissioner of social services to provide or arrange for services
or assistance, limited to those authorized or required 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 placed in the
care and custody of the commissioner of social services, to facilitate
the child's permanency plan.