New York State Law
Family Court Law
Consolidated Laws of NY's FCA code
Article 10A - Family Court
PERMANENCY HEARINGS FOR CHILDREN PLACED OUT OF THEIR HOMES
| Section | Description |
|---|---|
| 1086 | Purpose. |
| 1087 | Definitions. |
| 1088 | Continuing court jurisdiction. |
| 1089 | Permanency hearings. |
| 1089-A | Custody or guardianship with relatives or suitable persons... |
| 1090 | Representation of parties. |
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 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; 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 1087. Definitions. When used in this article, the following terms shall have the following meanings: (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 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 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 department authorized to receive children as public charges. (b) "Child freed for adoption" shall mean a person whose custody and guardianship has been committed to an authorized agency pursuant to section three hundred eighty-three-c, three hundred eighty-four, or three hundred eighty-four-b of the social services law. Such category shall include a person whose parent or parents have died during the period in which the child was in foster care and for whom there is no surviving parent who would be entitled to notice or consent pursuant to section one hundred eleven or one hundred eleven-a of the domestic relations law. Such category shall not include a child who has been freed for adoption with respect to one parent but who has another parent whose consent to an adoption is required pursuant to section one hundred eleven of the domestic relations law. (c) "Foster care" shall mean care provided by an authorized agency to a child in a foster family, free or boarding home; agency boarding home; group home; child care institution, health care facility or any combination thereof. (d) "Agency" means an authorized agency as defined in paragraphs (a) and (b) of subdivision ten of section three hundred seventy-one of the social services law, to which the care and custody or custody and guardianship of a child has been transferred or committed. (e) "Permanency hearing report" shall mean a sworn report submitted by the social services district to the court and the parties prior to each permanency hearing regarding the health and well-being of the child, the reasonable efforts that have been made since the last hearing to promote permanency for the child, and the recommended permanency plan for the child. 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, 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 calendar 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 the custody of the local commissioner of social services or other officer, board or department authorized to receive children as public charges. S 1089. Permanency hearings. (a) Scheduling, commencement and completion of permanency hearings. (1) Children freed for adoption. (i) At the conclusion of the dispositional hearing at which the child was freed for adoption in a proceeding pursuant to section three hundred eighty-three-c, three hundred eighty-four or three hundred eighty-four-b of the social services law, the court shall set a date certain for the initial freed child permanency hearing and advise all parties in court of the date set, except for the respondent or respondents. The permanency hearing shall be commenced no later than thirty days after the hearing at which the child was freed and shall be completed within thirty days, unless the court determines to hold the permanency hearing immediately upon completion of the hearing at which the child was freed, provided adequate notice has been given. (ii) At the conclusion of the hearing pursuant to section one thousand ninety-one of this act where the court has granted the motion for a former foster care youth who was discharged from foster care due to a failure to consent to continuation of placement 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, the court shall set a date certain for a permanency hearing and advise all parties in court of the date set. The permanency hearing shall be commenced no later than thirty days after the hearing at which the former foster care youth was returned to foster care. (2) All other permanency hearings. At the conclusion of the hearing pursuant to section 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 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 scheduled 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. (3) Subsequent permanency hearings for a child who continues in out-of-home placement or who is freed for adoption shall be scheduled for a date certain which shall be no later than six months from the completion of the previous permanency hearing and such subsequent permanency hearings shall be completed within thirty days of the date certain set for such hearings. (b) Notice of permanency hearings. (1) No later than fourteen days before the date certain for a permanency hearing scheduled pursuant to this section, the local social services district shall serve the notice of the permanency hearing and the permanency hearing report by regular mail upon: (i) the child's parent, including any non-respondent parent, unless the parental rights of the parent have been terminated or surrendered and any other person legally responsible for the child's care at the most recent address or addresses known to the local social services district or agency, and the foster parent in whose home the child currently resides, each of whom shall be a party to the proceeding; and (ii) the agency supervising the care of the child on behalf of the social services district with whom the child was placed, the child's attorney, and the attorney for the respondent parent. (2) The notice and the permanency hearing report shall also be provided to any pre-adoptive parent or relative providing care for the child and shall be submitted to the court. The notice of the permanency hearing only shall be provided to a former foster parent in whose home the child previously had resided for a continuous period of twelve months in foster care, if any, unless the court, on motion of any party or on its own motion, dispenses with such notice on the basis that such notice would not be in the child's best interests. However, such pre-adoptive parent, relative, or former foster parent, on the basis of such notice, shall have the right to be heard but shall not be a party to the permanency hearing. The failure of such pre-adoptive parent, relative or former foster parent to appear at a permanency hearing shall constitute a waiver of the right to be heard. Such failure to appear shall not cause a delay of the permanency hearing nor be a ground for the invalidation of any order issued by the court pursuant to this section. (c) Content of the permanency hearing report. The permanency hearing report shall include, but need not be limited to, up-to-date and accurate information regarding: (1) the child's current permanency goal, which may be: (i) return to the parent or parents; (ii) placement for adoption with the local social services official filing a petition for termination of parental rights; (iii) referral for legal guardianship; (iv) permanent placement with a fit and willing relative; or (v) placement in another planned permanent living arrangement that includes a significant connection to an adult who is willing to be a permanency resource for the child, including documentation of the compelling reason for determining that it would not be in the best interests of the child to be returned home, placed for adoption, placed with a legal guardian, or placed with a fit and willing relative; (2) the health, well-being, and status of the child since the last hearing including: (i) a description of the child's health and well-being; (ii) information regarding the child's current placement; (iii) an update on the educational and other progress the child has made since the last hearing including a description of the steps that have been taken by the local social services district or agency to enable prompt delivery of appropriate educational and vocational services to the child, including, but not be limited to: (A) where the child is subject to article sixty-five of the education law or elects to participate in an educational program leading to a high school diploma, the steps that the local social services district or agency has taken to promptly enable the child to be enrolled or to continue enrollment in an appropriate school or educational program leading to a high school diploma; (B) where the child is eligible to be enrolled in a pre-kindergarten program pursuant to section thirty-six hundred two-e of the education law, the steps that the local social services district or agency has taken to promptly enable the child to be enrolled in an appropriate pre-kindergarten program, if available; (C) where the child is under three years of age and is involved in an indicated case of child abuse or neglect, or where the local social services district suspects that the child may have a disability as defined in subdivision five of section twenty-five hundred forty-one of the public health law or if the child has been found eligible to receive early intervention or special educational services prior to or during the foster care placement, in accordance with title two-A of article twenty-five of the public health law or article eighty-nine of the education law, the steps that the local social services district or agency has taken to make any necessary referrals of the child for early intervention, pre-school special educational or special educational evaluations or services, as appropriate, and any available information regarding any evaluations and services which are being provided or are scheduled to be provided in accordance with applicable law; and (D) where the child is at least sixteen and not subject to article sixty-five of the education law and elects not to participate in an educational program leading to a high school diploma, the steps that the local social services district has taken to assist the child to become gainfully employed or enrolled in a vocational program; (iv) a description of the visitation plan or plans describing the persons with whom the child visits, including any siblings, and the frequency, duration and quality of the visits; (v) where a child has attained the age of fourteen, a description of the services and assistance that are being provided to enable the child to learn independent living skills; and (vi) a description of any other services being provided to the child; (3) the status of the parent, including: (i) the services that have been offered to the parent to enable the child to safely return home; (ii) the steps the parent has taken to use the services; (iii) any barriers encountered to the delivery of such services; (iv) the progress the parent has made toward reunification; and (v) a description of any other steps the parent has taken to comply with and achieve the permanency plan, if applicable. (4) a description of the reasonable efforts to achieve the child's permanency plan that have been taken by the local social services district or agency since the last hearing. The description shall include: (i) unless the child is freed for adoption or there has been a determination by a court that such efforts are not required pursuant to section one thousand thirty-nine-b of this act, the reasonable efforts that have been made by the local social services district or agency to eliminate the need for placement of the child and to enable the child to safely return home, including a description of any services that have been provided; (ii) where the permanency plan is adoption, guardianship, placement with a fit and willing relative or another planned permanent living arrangement other than return to parent, the reasonable efforts that have been made by the local social services district or agency to make and finalize such alternate permanent placement, including a description of any services that have been provided and a description of the consideration of appropriate in-state and out-of-state placements; (iii) where return home of the child is not likely, the reasonable efforts that have been made by the local social services district or agency to evaluate and plan for another permanent plan, including consideration of appropriate in-state and out-of-state placements, and any steps taken to further a permanent plan other than return to the child's parent; or (iv) where a child has been freed for adoption, a description of the reasonable efforts that will be taken to facilitate the adoption of the child; and (5) the recommended permanency plan including: (i) a recommendation regarding whether the child's current permanency goal should be continued or modified, the reasons therefor, and the anticipated date for meeting the goal; (ii) a recommendation regarding whether the child's placement should be extended and the reasons for the recommendation; (iii) any proposed changes in the child's current placement, trial discharge or discharge that may occur before the next permanency hearing; (iv) a description of the steps that will be taken by the local social services district or agency to continue to enable prompt delivery of appropriate educational and vocational services to the child in his or her current placement and during any potential change in the child's foster care placement, during any trial discharge, and after discharge of the child in accordance with the plans for the child's placement until the next permanency hearing; (v) whether any modification to the visitation plan or plans is recommended and the reasons therefor; (vi) where a child has attained the age of fourteen or will attain the age of fourteen before the next permanency hearing, a description of the services and assistance that will be provided to enable the child to learn independent living skills; (vii) where a child has been placed outside this state, whether the out-of-state placement continues to be appropriate, necessary and in the best interests of the child; (viii) where return home of the child is not likely, the efforts that will be made to evaluate or plan for another permanent plan, including consideration of appropriate in-state and out-of-state placements; and (ix) in the case of a child who has been freed for adoption: (A) a description of services and assistance that will be provided to the child and the prospective adoptive parent to expedite the adoption of the child; (B) information regarding the child's eligibility for adoption subsidy pursuant to title nine of article six of the social services law; and (C) if the child is over age fourteen and has voluntarily withheld his or her consent to an adoption, the facts and circumstances regarding the child's decision to withhold consent and the reasons therefor. (d) Evidence, court findings and order. The provisions of subdivisions (a) and (c) of section one thousand forty-six of this act shall apply to all proceedings under this article. At the conclusion of each permanency hearing, the court shall, upon the proof adduced, which shall include age-appropriate consultation with the child who is the subject of the permanency hearing, and in accordance with the best interests and safety of the child, including whether the child would be at risk of abuse or neglect if returned to the parent or other person legally responsible, determine and issue its findings, and enter an order of disposition in writing: (1) directing that the placement of the child be terminated and the child returned to the parent or other person legally responsible for the child's care with such further orders as the court deems appropriate; or (2) where the child is not returned to the parent or other person legally responsible: (i) whether the permanency goal for the child should be approved or modified and the anticipated date for achieving the goal. The permanency goal may be determined to be: (A) return to parent; (B) placement for adoption with the local social services official filing a petition for termination of parental rights; (C) referral for legal guardianship; (D) permanent placement with a fit and willing relative; or (E) placement in another planned permanent living arrangement that includes a significant connection to an adult willing to be a permanency resource for the child if the local social services official has documented to the court a compelling reason for determining that it would not be in the best interests of the child to return home, be referred for termination of parental rights and placed for adoption, placed with a fit and willing relative, or placed with a legal guardian; (ii) placing the child in the custody of a fit and willing relative or other suitable person, or continuing the placement of the child until the completion of the next permanency hearing, provided, however, that no placement may be continued under this section beyond the child's eighteenth birthday without his or her consent and in no event past the child's twenty-first birthday; provided, however, that a former foster youth who was previously discharged from foster care due to a failure to consent to continuation of placement may be returned to the custody of the local commissioner of social services or other officer, board or department authorized to receive children as public charges if the court has granted the motion of the former foster care youth or local social services official upon a finding that the youth has no reasonable alternative to foster care and has consented to enrollment in and attendance at a vocational or educational program in accordance with section one thousand ninety-one of this act; (iii) determining whether reasonable efforts have been made to effectuate the child's permanency plan as follows: (A) unless the child is freed for adoption or there has been a determination by a court that such efforts are not required pursuant to section one thousand thirty-nine-b of this act, whether reasonable efforts have been made to eliminate the need for placement of the child and to enable the child to safely return home; (B) where the permanency plan is adoption, guardianship, placement with a fit and willing relative or another planned permanent living arrangement other than return to parent, whether reasonable efforts have been made to make and finalize such alternate permanent placement, including consideration of appropriate in-state and out-of-state placements; (iv) where return home of the child is not likely, what efforts should be made to evaluate or plan for another permanent plan, including consideration of appropriate in-state and out-of-state placements; (v) the steps that must be taken by the local social services official or agency to implement the educational and vocational program components of the permanency hearing report submitted pursuant to subdivision (c) of this section, and any modifications that should be made to such plan; (vi) specifying the date certain for the next scheduled permanency hearing; (vii) where placement of the child is extended, such order shall also include: (A) a description of the visitation plan or plans; (B) where the child is not freed for adoption, a direction that the child's parent or parents, including any non-respondent parent or other person legally responsible for the child's care shall be notified of the planning conference or conferences to be held pursuant to subdivision three of section four hundred nine-e of the social services law and notification of their right to attend such conference or conferences and their right to have counsel or another representative with them; (C) where the child is not freed for adoption, a direction that the parent or other person legally responsible for the child's care keep the local social services district or agency apprised of his or her current whereabouts and a current mailing address; (D) where the child is not freed for adoption, a notice that if the child remains in foster care for fifteen of the most recent twenty-two months, the local social services district or agency may be required by law to file a petition to terminate parental rights; (E) where a child has been freed for adoption and is over age fourteen and has voluntarily withheld his or her consent to an adoption, the facts and circumstances with regard to the child's decision to withhold consent and the reasons therefor; (F) where a child has been placed outside of this state, whether the out-of-state placement continues to be appropriate, necessary and in the best interests of the child; (G) where a child has or will before the next permanency hearing reach the age of fourteen, the services and assistance necessary to assist the child in learning independent living skills; and (viii) any other findings or orders that the court deems appropriate, which may include: (A) Whether the court should issue any orders for services in the manner specified in section one thousand fifteen-a of this act in order to achieve the permanency plan and, if so, what services should be ordered. (B) Where a child has been freed for adoption, the order may also: (I) direct that such child be placed for adoption in the foster family home where he or she resides or has resided or with any other suitable person or persons; (II) direct the local social services district to provide services or assistance to the child and the prospective adoptive parent authorized or required to be made available pursuant to the comprehensive annual services program plan then in effect. Such order shall include, where appropriate, the evaluation of eligibility for adoption subsidy pursuant to title nine of article six of the social services law, but shall not require the provision of such subsidy. Violation of such an order shall be subject to punishment pursuant to section seven hundred fifty-three of the judiciary law; and (III) recommend that the office of children and family services investigate the facts and circumstances concerning the discharge of responsibilities for the care and welfare of such child by a local social services district pursuant to section three hundred ninety-five of the social services law; and (IV) recommend that the attorney for the child, local social services district or agency file a petition pursuant to part one-A of article six of this act to restore the parental rights of a child who has been freed for adoption. * (C) Where the permanency goal is return to parent and it is anticipated that the child may be returned home before the next scheduled permanency hearing, the court may provide the local social services district with authority to finally discharge the child to the parent without further court hearing, provided that ten days prior written notice is served upon the court and child's attorney. If the court on its own motion or the child's attorney on motion to the court does not request the matter to be brought for review before final discharge, no further permanency hearings will be required. The local social services district may also discharge the child on a trial basis to the parent unless the court has prohibited such trial discharge or unless the court has conditioned such trial discharge on another event. For the purposes of this section, trial discharge shall mean that the child is physically returned to the parent while the child remains in the care and custody of the local social services district. Permanency hearings shall continue to be held for any child who has returned to his or her parents on a trial discharge. Where the permanency goal for a child aging out of foster care is another planned permanent living arrangement that includes a significant connection to an adult willing to be a permanency resource for the child, the local social services district may also discharge the child on a trial basis to the planned permanent living arrangements, unless the court has prohibited or otherwise conditioned such a trial discharge. Trial discharge for a child aging out of foster care shall mean that a child is physically discharged but the local social services district retains care and custody or custody and guardianship of the child and there remains a date certain for the scheduled permanency hearing. * NB Sep amd; cannot be put together * (C) Where the permanency goal is return to parent and it is anticipated that the child may be returned home before the next scheduled permanency hearing, the court may provide the local social services district with authority to finally discharge the child to the parent without further court hearing, provided that ten days prior written notice is served upon the court and attorney for the child. If the court on its own motion or the attorney for the child on motion to the court does not request the matter to be brought for review before final discharge, no further permanency hearings will be required. The local social services district may also discharge the child on a trial basis to the parent unless the court has prohibited such trial discharge or unless the court has conditioned such trial discharge on another event. For the purposes of this section, trial discharge shall mean that the child is physically returned to the parent while the child remains in the care and custody of the local social services district. Permanency hearings shall continue to be held for any child who has returned to his or her parents on a trial discharge. Where the permanency goal for a youth aging out of foster care is another planned permanent living arrangement that includes a significant connection to an adult willing to be a permanency resource for the youth, the local social services district may also discharge the youth on a trial basis to the planned permanent living arrangements, unless the court has prohibited or otherwise conditioned such a trial discharge. Trial discharge for a youth aging out of foster care shall mean that the youth is physically discharged but the local social services district retains care and custody or custody and guardianship of the child and there remains a date certain for the scheduled permanency hearing. Trial discharge for a youth aging out of foster care may be extended at each scheduled permanency hearing, until the youth reaches the age of twenty-one, if a youth over the age of eighteen consents to such extension. Prior to finally discharging a youth aging out of foster care to another planned permanent living arrangement, the local social services official shall give the youth notice of the right to apply to reenter foster care within the earlier of twenty-four months of the final discharge or the youth's twenty-first birthday in accordance with article ten-B of this act. Such notice shall also advise the youth that reentry into foster care will only be available where the former foster care youth has no reasonable alternative to foster care and consents to enrollment in and attendance at an appropriate educational or vocational program in accordance with paragraph two of subdivision (a) of section one thousand ninety-one of this act. * NB Sep amd; cannot be put together (D) The court may make an order of protection in the manner specified by section one thousand fifty-six of this act in assistance or as a condition of any other order made under this section. The order of protection may set forth reasonable conditions of behavior to be observed for a specified period of time by a person before the court. (E) Where the court finds reasonable cause to believe that grounds for termination of parental rights exist, the court may direct the local social services district or other agency to institute a proceeding to legally free the child for adoption pursuant to section three hundred eighty-four-b of the social services law. Upon a failure by such agency to institute such proceeding within ninety days after entry of such order, the court shall permit the foster parent or parents in whose home the child resides to institute such a proceeding unless the local social services district or other agency, for good cause shown and upon due notice to all the parties to the proceeding, has obtained a modification or extension of such order, or unless the court has reasonable cause to believe that such foster parent or parents would not obtain approval of their petition to adopt the child in a subsequent adoption proceeding. (F) The court may make an order directing a local social services district or agency to undertake diligent efforts to encourage and strengthen the parental relationship when it finds such efforts will not be detrimental to the best interests of the child and there has been no prior court finding that such efforts are not required. Such efforts shall include encouraging and facilitating visitation with the child by the parent or other person legally responsible for the child's care. Such order may include a specific plan of action for the local social services district or agency including, but not limited to, requirements that such agency assist the parent or other person legally responsible for the child's care in obtaining adequate housing, employment, counseling, medical care or psychiatric treatment. Such order shall also include encouraging and facilitating visitation with the child by the noncustodial parent and grandparents who have the right to visitation pursuant to section one thousand eighty-one of this act, and may include encouraging and facilitating visitation with the child by the child's siblings. Nothing in this subdivision shall be deemed to limit the authority of the court to make an order pursuant to section two hundred fifty-five of this act. (G) Except as provided for herein, in any order issued pursuant to this section, the court may require the local social services district or agency to make progress reports to the court, the parties, and the child's attorney on the implementation of such order. (H) Where a child freed for adoption has not been placed in a prospective adoptive home and the court has entered an order of disposition directing that the child be placed for adoption or directing the provision of services or assistance to the child and the agency charged with the guardianship and custody of the child fails, prior to the next scheduled permanency hearing, to comply with such order, the court at the time of such hearing may, in the best interests of the child, enter an order committing the guardianship and custody of the child to another authorized agency or may make any other order authorized pursuant to section two hundred fifty-five of this act. (e) Service of court order and permanency hearing report. A copy of the court order which includes the date certain for the next permanency hearing and the permanency hearing report as approved, adjusted, or modified by the court, shall be given to the parent or other person legally responsible for the child. S 1089-a. Custody or guardianship with relatives or suitable persons pursuant to article six of this act or guardianship pursuant to article seventeen of the surrogate's court procedure act. (a) Where the permanency plan is placement with a fit and willing relative, the court may issue an order of custody or guardianship in response to a petition filed by a relative or suitable person seeking custody or guardianship of the child under article six of this act or an order of guardianship of the child under article seventeen of the surrogate's court procedure act at a permanency hearing held pursuant to this article and terminate all pending orders issued pursuant to article ten of this act if: (i) 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 that the termination of the order placing the child pursuant to article ten of this act will not jeopardize the safety of the child. In determining whether the best interests of the child will be promoted by the granting of guardianship of the child to a relative who has cared for the child as a foster parent, the court shall give due consideration to the permanency goal of the child, the relationship between the child and the relative, and whether the relative and the local department of social services have entered into an agreement to provide kinship guardianship assistance payments for the child to the relative under title ten of article six of the social services law, and, if so, whether a fact-finding hearing pursuant to section one thousand fifty-one of this chapter has occurred, and whether compelling reasons exist for determining that the return home of the child and the adoption of the child are not in the best interests of the child and are, therefore, not appropriate permanency options; and (ii) the court finds that granting custody or guardianship of the child to the relative or suitable person will provide the child with a safe and permanent home; and (iii) the parents, the attorney for the child, the local department of social services, and the foster parent of the child who has been the foster parent for the child for one year or more consent to the issuance of an order of custody or guardianship under article six of this act or the granting of guardianship under article seventeen of the surrogate's court procedure act and the termination of the order of placement pursuant to article ten of this act; or (iv) after a consolidated hearing on the permanency of the child and the petition under article six of this act or article seventeen of the surrogate's court procedure act; (A) if a parent or parents fail to consent to the granting of custody or guardianship under article six of this act or the granting of 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 the granting of guardianship under article seventeen of the surrogate's court procedure act; or (B) if the local department of social services, the attorney for the child, or the foster parent of the child who has been the foster parent for the child for one year or more fail to consent to the granting of custody or guardianship under article six of this act or the granting of 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 including, if the guardian and local department of social services have entered into an agreement to provide kinship guardianship assistance payments for the child to the relative under title ten of article six of the social services law, that a fact-finding hearing pursuant to section one thousand fifty-one of this chapter has occurred, and the compelling reasons that exist for determining that the return home of the child are not in the best interests of the child and are, therefore, not appropriate permanency options for the child, and shall result in the termination of any orders in effect pursuant to article ten of this act or pursuant to this article. 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 respondent or respondents when granting custody or guardianship pursuant to article six of this act or the granting of guardianship under article seventeen of the surrogate's court procedure act in accordance with this section. (c) As part of the order granting custody or guardianship to the relative or suitable person pursuant to article six of this act or the granting of guardianship under 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 the order of custody or guardianship granted pursuant to the article six proceeding; provided, however, if the guardian and the local department of social services have entered into an agreement to provide kinship guardianship assistance payments for the child to the relative under title ten of article six of the social services law, the order must require that the local department of social services and the attorney for the child receive notice of, and be made parties to, any such subsequent proceeding involving custody or guardianship of the child. (d) Any order entered pursuant to this section shall conclude the court's jurisdiction over the article ten proceeding and the court shall not maintain jurisdiction over the proceeding for further permanency hearings. (e) The court shall hold age appropriate consultation with the child, however, if the youth has attained fourteen years of age, the court shall ascertain his or her preference for a suitable guardian or custodian. Notwithstanding any other section of law, where the youth is over the age of eighteen, he or she shall consent to the appointment of a suitable guardian or custodian. S 1090. Representation of parties. (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 such attorney. The 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. (b) The appointment of an attorney for the respondent parent or parents pursuant to section two hundred sixty-two of this act shall continue without further order of the court. The appointment shall expire upon the expiration of the time for appeal of an order of disposition against the respondent parent committing custody and guardianship of the child pursuant to section three hundred eighty-four-b of the social services law or upon final determination of any appeal or subsequent appeals authorized by law, or upon entry of an order approving a surrender pursuant to the provisions of section three hundred eighty-three-c of the social services law. All notices, reports and motions required by law shall be served upon the attorney for the respondent parent or parents. The attorney may be relieved of his or her representation upon application to the court for termination of the appointment. If the application is approved, the court shall immediately appoint another attorney for the respondent parent or parents pursuant to section two hundred sixty-two of this act upon whom all notices, reports, and motions required by law shall be provided. Top of Page
Index | Article 1 |
Article 2 | Article 3 |
Article 4 | Article 5 |
Article 5A | Article 5B |
Article 6 | Article 7 |
Article 8 | Article 9 |
Article 10 | Article 10A |
Article 10B | Article 10C |
Article 11 | Article 12
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