New York State Law
Family Court Law
Consolidated Laws of NY's FCA code
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. 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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