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Article 10C - Family Court

DESTITUTE CHILDREN

Section Description
1092 Definitions.
1093 Originating proceedings.
1094 Initial appearance and preliminary proceedings.
1095 Fact finding and disposition.
1096 Custody or guardianship with relatives or suitable persons...
  S 1092. Definitions.  When  used in this article unless the specific
  context indicates otherwise:
    (a) "destitute child" shall mean a child under the age of eighteen who
  is in a state of want or suffering  due  to  lack  of  sufficient  food,
  clothing, shelter, or medical or surgical care and:
    (1)  does  not  fit  within  the  definition of an "abused child" or a
  "neglected child" as such terms are  defined  in  section  one  thousand
  twelve of this act; and
    (2)  is without any parent or caretaker available to sufficiently care
  for him or her, due to:
    (i) the death of a parent or caretaker; or
    (ii) the incapacity or debilitation of a parent  or  caretaker,  where
  such  incapacity  or debilitation would prevent such parent or caretaker
  from being able to  knowingly  and  voluntarily  enter  into  a  written
  agreement  to  transfer  the  care and custody of said child pursuant to
  section three hundred fifty-eight-a or three  hundred  eighty-four-a  of
  the social services law; or
    (iii)  the  inability of the commissioner of social services to locate
  any parent or caretaker, after making reasonable efforts to do so; or
    (iv) a parent or caretaker being physically  located  outside  of  the
  state of New York and the commissioner of social services is or has been
  unable  to  return  the child to such parent or caretaker while or after
  making reasonable efforts to do so, unless the lack of such  efforts  is
  or was appropriate under the circumstances.
    (b)  "parent"  shall  mean any living biological or adoptive parent of
  the child whose rights have not been terminated or surrendered.
    (c) "caretaker" shall mean a person or persons, other than a parent of
  a child alleged or adjudicated to be a destitute child pursuant to  this
  article, who possesses a valid, current court order providing him or her
  with  temporary  or  permanent  guardianship  or  temporary or permanent
  custody of said child.
    (d) "permanency hearing" shall  mean  a  hearing  in  accordance  with
  article  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
  population of one million or more,  the  administration  for  children's
  services.
    (f)  "Interested adult" shall mean a person or persons over the age of
  eighteen, other than a parent or caretaker, who, at  the  relevant  time
  resided  with  and had responsibility for the day-to-day care of a child
  alleged or adjudicated to be destitute.

  S 1093. Originating  proceedings. (a) Filing of the petition. Only a
  commissioner of social services may originate a  proceeding  under  this
  article. A proceeding under this article may be originated by the filing
  of a petition alleging that the child is a destitute child as defined by
  section  one  thousand  ninety-two  of  this  article. A commissioner of
  social services, who accepts the care and custody of a  child  appearing
  to  be  a destitute child, shall provide for such child as authorized by
  law, including but not limited to section three hundred ninety-eight  of
  the  social  services  law,  and  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 found;
  provided however, that upon the motion of any party or the attorney  for
  the child, the court may transfer a petition filed under this article to
  a county the court deems to be more appropriate under the circumstances,
  including,  but  not  limited to, a county located within a jurisdiction
  where the child is domiciled or has another significant nexus.
    (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, if known;
    (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,
  if known;
    (v) whether the parent or parents of the child are living or deceased,
  if known;
    (vi) the whereabouts and last known address for the parent or parents,
  if known;
    (vii) the identity of a caretaker or interested adult, if known;
    (viii) 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
    (ix)  the  efforts, if any, which were made prior to the filing of the
  petition to allow the child to return or remain safely home, and if such
  efforts were not made, the reasons such efforts were not made.
    (2) 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, caretaker or interested adult is identified
  in  the  petition,  the  court  shall cause a copy of the petition and a
  summons to be issued the same day the petition is filed, requiring  such
  parent,  caretaker  or interested adult to appear in court on the return
  date to answer the petition. If the court deems a person a party to  the
  proceeding   pursuant   to  subdivision  (c)  of  section  one  thousand
  ninety-four of this article and if such person is not before the  court,
  the  court  shall  cause  a copy of the petition and a summons requiring
  such person to appear in court on the return  date  be  served  on  such
  person.
    (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
  twenty-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
  exercise of  personal  jurisdiction  over  any  person  subject  to  the
  jurisdiction  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 outside of the state of New York  on  a  parent,  caretaker,
  interested  adult  or  person made a party to the proceeding pursuant to
  subdivision (c) of section one thousand ninety-four of this article  and
  such  person  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  in  accordance  with
  section  two  hundred forty-nine of this act, and appoint an attorney to
  represent a parent, caretaker or interested  adult  in  accordance  with
  paragraph  (ix)  of  subdivision (a) of section two hundred sixty-two of
  this act, if he or she is financially unable to obtain counsel;
    (2) (i) if  any  parent,  caretaker  or  interested  adult  enters  an
  appearance,  determine  whether the child may safely remain in or return
  to his or her home and, if appropriate, order  services  to  assist  the
  family  toward  that  end;  provided  however, that such order shall not
  include the provision of any service or assistance to the child and  his
  or  her  family which is not authorized or required to be made available
  pursuant to the comprehensive  annual  services  program  plan  then  in
  effect;
    (ii)  determine  whether  temporary care is necessary to avoid risk to
  the child's life or health and whether  it  would  be  contrary  to  the
  welfare  of  the child to continue in, or return to 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,  caretakers  or  interested adults 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
  permanency  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
  placement 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
  circumstances;  determine, where appropriate, if reasonable efforts were
  made to make it possible for the child to remain  in  or  return  safely
  home; and
    (5)  include the findings made pursuant to paragraphs one through four
  of this subdivision in a written order.
    (b) (1) Any parent or caretaker, or interested adult from  whose  care
  the  child  has  been  removed,  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; provided  however,  that  such  order
  shall  not  include  the  provision  of any service or assistance to the
  child and his or her family which is not authorized or  required  to  be
  made  available  pursuant  to  the comprehensive annual services program
  plan  then  in effect. 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.
    (2) In determining whether temporary removal of the child is necessary
  to avoid imminent risk to the child's life or health,  the  court  shall
  consider  and determine in its order whether continuation in the child's
  home would be contrary to the best interests  of  the  child  and  where
  appropriate,  whether  reasonable efforts were made prior to the date of
  the hearing to prevent or eliminate the need for removal  of  the  child
  from  the  home  and  where appropriate, whether reasonable efforts were
  made after removal of the child to make it possible  for  the  child  to
  safely return home.
    (3)  If  the  court  determines  that reasonable efforts to prevent or
  eliminate the need for removal of the child from the home were not  made
  but   that   the   lack  of  such  efforts  was  appropriate  under  the
  circumstances, the court order shall include  such  a  finding  and  the
  basis for such finding.
    (4)  If  the court determines that reasonable efforts to allow a child
  to safely return home were not made subsequent to  the  removal  of  the
  child  but  that  the  lack  of  such  efforts was appropriate under the
  circumstances, the court order shall include  such  a  finding  and  the
  basis for such finding.
    (c) (1) The court may upon its own motion or the motion of any person,
  deem a person not named in the petition who has a significant connection
  to the child alleged to be destitute, a party to the proceeding, if such
  person  consents  to  being  added  as  a  party,  and  such  action  is
  appropriate under the circumstances.
    (2) If the court deems a person a party pursuant to paragraph  (i)  of
  this  subdivision  and  such  person  is not before the court, the court
  shall cause a copy of the petition and a summons requiring  such  person
  to  appear  in  court  on  the  return  date be served on such person in
  accordance with subdivision (d) of section one thousand ninety-three  of
  this article.
    (d)  The  court  may,  if it deems appropriate, appoint counsel for an
  interested adult or another person named as a party  to  the  proceeding
  pursuant  to subdivision (c) of this section, if such adult or person is
  financially unable to obtain counsel.

  S 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;
    (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.

  S 1096. Custody  or  guardianship with relatives or suitable persons
  pursuant to article  six  of  this  act  or  article  seventeen  of  the
  surrogate's court procedure act. (a) At the conclusion of a hearing held
  pursuant  to section one thousand ninety-five of this article, the court
  may enter an order of disposition granting custody  or  guardianship  of
  the child to a relative or suitable person 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 if:
    (1) the relative or suitable person has filed a petition  for  custody
  or  guardianship  of  the  child  pursuant to article six of this act or
  guardianship  of  the  child  pursuant  to  article  seventeen  of   the
  surrogate's court procedure act; and
    (2) the court finds that granting custody or guardianship of the child
  to  the  relative  or  suitable  person  is in the best interests of the
  child; and
    (3) the court finds that granting custody or guardianship of the child
  to the relative or suitable person 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 will provide the child
  with a safe and permanent home; and
    (4) all parties to the  destitute  child  proceeding  consent  to  the
  granting  of  custody  or  guardianship under article six of this act or
  article seventeen of the surrogate's court procedure act; or
    (5) after a consolidated fact finding and dispositional hearing on the
  destitute child petition and the petition under article six of this  act
  or article seventeen of the surrogate's court procedure act:
    (i)  if a parent or parents fail to consent to the granting of custody
  or guardianship under article six of  this  act  or  guardianship  under
  article  seventeen  of  the  surrogate's  court procedure act, the court
  finds that extraordinary circumstances exist that  support  granting  an
  order  of  custody  or  guardianship  under  article  six of this act or
  guardianship under article seventeen of the surrogate's court  procedure
  act; or
    (ii)  if the parent or parents consent and a party other than a parent
  fails to consent to  the  granting  of  custody  or  guardianship  under
  article  six  of this act or guardianship under article seventeen of the
  surrogate's court procedure act, the court finds that  granting  custody
  or  guardianship  of  the child to the relative or suitable person is in
  the best interests of the child.
    (b) An order made in accordance with the provisions  of  this  section
  shall set forth the required findings as described in subdivision (a) of
  this section and shall constitute the final disposition of the destitute
  child  proceeding. Notwithstanding any other provision of law, the court
  shall not issue an order of supervision nor may the  court  require  the
  local  department  of social services to provide services to the parent,
  parents,  caretaker  or  interested  adult  when  granting  custody   or
  guardianship  pursuant  to article six of this act or guardianship under
  article seventeen of the surrogate's  court  procedure  act  under  this
  section.
    (c)  As part of the order granting custody or guardianship pursuant to
  article six of this act or guardianship pursuant to article seventeen of
  the surrogate's court procedure act, the  court  may  require  that  the
  local  department  of  social  services  and  the attorney for the child
  receive notice of and be made parties to any  subsequent  proceeding  to
  modify such order of custody or guardianship.
    (d)  An  order  entered in accordance with this section shall conclude
  the court's jurisdiction over  the  proceeding  held  pursuant  to  this
  article  and  the court shall not maintain jurisdiction over the parties
  for the purposes of permanency hearings held pursuant to  article  ten-A
  of this act.

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