New York State Law
Family Court Law
Consolidated Laws of NY's FCA code
Part 5 - Article 10 - Family Court
ORDERS
S 1051. Sustaining or dismissing petition. (a) If facts sufficient to sustain the petition are established in accord with part four of this article, or if all parties and the attorney for the child consent, the court shall, subject to the provisions of subdivision (c) of this section, enter an order finding that the child is an abused child or a neglected child and shall state the grounds for the finding. (b) If the proof does not conform to the specific allegations of the petition, the court may amend the allegations to conform to the proof; provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations. (c) If facts sufficient to sustain the petition under this article are not established, or if, in a case of alleged neglect, the court concludes that its aid is not required on the record before it, the court shall dismiss the petition and shall state on the record the grounds for the dismissal. (d) If the court makes a finding of abuse or neglect, it shall determine, based upon the facts adduced during the fact-finding hearing and any other additional facts presented to it, whether a preliminary order pursuant to section one thousand twenty-seven is required to protect the child's interests pending a final order of disposition. The court shall state the grounds for its determination. In addition, a child found to be abused or neglected may be removed and remanded to a place approved for such purpose by the local social services department or be placed in the custody of a suitable person, pending a final order of disposition, if the court finds that there is a substantial probability that the final order of disposition will be an order of placement under section one thousand fifty-five. In determining whether substantial probability exists, the court shall consider the requirements of subdivision (b) of section one thousand fifty-two. (e) If the court makes a finding of abuse, it shall specify the paragraph or paragraphs of subdivision (e) of section one thousand twelve of this act which it finds have been established. If the court makes a finding of abuse as defined in paragraph (iii) of subdivision (e) of section one thousand twelve of this act, it shall make a further finding of the specific sex offense as defined in article one hundred thirty of the penal law. In addition to a finding of abuse, the court may enter a finding of severe abuse or repeated abuse, as defined in subparagraphs (i), (ii) and (iii) of paragraph (a) or subparagraphs (i) and (ii) of paragraph (b) of subdivision eight of section three hundred eighty-four-b of the social services law, which shall be admissible in a proceeding to terminate parental rights pursuant to paragraph (e) of subdivision four of section three hundred eighty-four-b of the social services law. If the court makes such additional finding of severe abuse or repeated abuse, the court shall state the grounds for its determination, which shall be based upon clear and convincing evidence. (f) Prior to accepting an admission to an allegation or permitting a respondent to consent to a finding of neglect or abuse, the court shall inform the respondent that such an admission or consent will result in the court making a fact-finding order of neglect or abuse, as the case may be, and shall further inform the respondent of the potential consequences of such order, including but not limited to the following: (i) that the court will have the power to make an order of disposition, which may include an order placing the subject child or children in foster care until completion of the initial permanency hearing scheduled pursuant to section one thousand eighty-nine of this act and subject to successive extensions of placement at any subsequent permanency hearings; (ii) that the placement of the children in foster care may, if the parent fails to maintain contact with or plan for the future of the child, lead to proceedings for the termination of parental rights and to the possibility of adoption of the child 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; (iii) that the report made to the state central register of child abuse and maltreatment upon which the petition is based will remain on file until ten years after the eighteenth birthday of the youngest child named in such report, that the respondent will be unable to obtain expungement of such report, and that the existence of such report may be made known to employers seeking to screen employee applicants in the field of child care, and to child care agencies if the respondent applies to become a foster parent or adoptive parent. Any finding upon such an admission or consent made without such notice being given by the court shall be vacated upon motion of any party. In no event shall a person other than the respondent, either in person or in writing, make an admission or consent to a finding of neglect or abuse. S 1052. Disposition on adjudication. (a) At the conclusion of a dispositional hearing under this article, the court shall enter an order of disposition directing one or more of the following: (i) suspending judgment in accord with section one thousand fifty-three of this part; or (ii) releasing the child to the custody of his parents or other person legally responsible in accord with section one thousand fifty-four of this part; or (iii) placing the child in accord with section one thousand fifty-five of this part; or (iv) making an order of protection in accord with one thousand fifty-six of this part; or (v) placing the respondent under supervision in accord with section one thousand fifty-seven of this part; or (vi) granting custody of the child to relatives or suitable persons pursuant to section one thousand fifty-five-b of this part. However, the court shall not enter an order of disposition combining placement of the child under paragraph (iii) of this subdivision with a disposition under paragraph (i) or (ii) of this subdivision. An order granting custody of the child pursuant to paragraph (vi) of this subdivision shall not be combined with any other disposition under this subdivision. (b) (i) The order of the court shall state the grounds for any disposition made under this section. If the court places the child in accord with section one thousand fifty-five of this part, the court in its order shall determine: (A) whether continuation in the child's home would be contrary to the best interests of the child and where appropriate, that reasonable efforts were made prior to the date of the dispositional hearing held pursuant to this article to prevent or eliminate the need for removal of the child from his or her home and if the child was removed from the home prior to the date of such hearing, that such removal was in the child's best interests and, where appropriate, reasonable efforts were made to make it possible for the child to safely return home. 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, or if the permanency plan for the child is adoption, guardianship or another permanent living arrangement other than reunification with the parent or parents of the child, the court order shall include a finding that reasonable efforts, including consideration of appropriate in-state and out-of-state placements, are being made to make and finalize such alternate permanent placement. For the purpose of this section, reasonable efforts to prevent or eliminate the need for removing the child from the home of the child or to make it possible for the child to return safely to the home of the child shall not be required where, upon motion with notice by the social services official, the court determines that: (1) the parent of such child has subjected the child to aggravated circumstances, as defined in subdivision (j) of section one thousand twelve of this article; (2) the parent of such child has been convicted of (i) murder in the first degree as defined in section 125.27 or murder in the second degree as defined in section 125.25 of the penal law and the victim was another child of the parent; or (ii) manslaughter in the first degree as defined in section 125.20 or manslaughter in the second degree as defined in section 125.15 of the penal law and the victim was another child of the parent, provided, however, that the parent must have acted voluntarily in committing such crime; (3) the parent of such child has been convicted of an attempt to commit any of the foregoing crimes, and the victim or intended victim was the child or another child of the parent; or has been convicted of criminal solicitation as defined in article one hundred, conspiracy as defined in article one hundred five or criminal facilitation as defined in article one hundred fifteen of the penal law for conspiring, soliciting or facilitating any of the foregoing crimes, and the victim or intended victim was the child or another child of the parent; (4) the parent of such child has been convicted of assault in the second degree as defined in section 120.05, assault in the first degree as defined in section 120.10 or aggravated assault upon a person less than eleven years old as defined in section 120.12 of the penal law, and the commission of one of the foregoing crimes resulted in serious physical injury to the child or another child of the parent; (5) the parent of such child has been convicted in any other jurisdiction of an offense which includes all of the essential elements of any crime specified in clause two, three or four of this subparagraph, and the victim of such offense was the child or another child of the parent; or (6) the parental rights of the parent to a sibling of such child have been involuntarily terminated; unless the court determines that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future. The court shall state such findings in its order. (7) If the court determines that reasonable efforts are not to be required because of one of the grounds set forth above, a permanency hearing shall be held within thirty days of the finding of the court that such efforts are not required. At the permanency hearing, the court shall determine the appropriateness of the permanency plan prepared by the social services official which shall include whether or when the child: (i) will be returned to the parent; (ii) should be placed for adoption with the social services official filing a petition for termination of parental rights; (iii) should be referred for legal guardianship; (iv) should be placed permanently with a fit and willing relative; or (v) should be placed 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, if the social services official has documented to the court a compelling reason for determining that it would not be in the best interest 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. The social services official shall thereafter make reasonable efforts to place the child in a timely manner, including consideration of appropriate in-state and out-of-state placements, and to complete whatever steps are necessary to finalize the permanent placement of the child as set forth in the permanency plan approved by the court. If reasonable efforts are determined by the court not to be required because of one of the grounds set forth in this paragraph, the social services official may file a petition for termination of parental rights in accordance with section three hundred eighty-four-b of the social services law. For the purpose of this section, in determining reasonable effort to be made with respect to a child, and in making such reasonable efforts, the child's health and safety shall be the paramount concern. For the purpose of this section, a sibling shall include a half-sibling; (B) if the child has attained the age of sixteen, the services needed, if any, to assist the child to make the transition from foster care to independent living. Where the court finds that the local department of social services has not made reasonable efforts to prevent or eliminate the need for placement, and that such efforts would be appropriate, it shall direct the local department of social services to make such efforts pursuant to section one thousand fifteen-a of this article, and shall adjourn the hearing for a reasonable period of time for such purpose when the court determines that additional time is necessary and appropriate to make such efforts; and (C) whether the local social services district made a reasonable search to locate relatives of the child as required pursuant to section one thousand seventeen of this article. In making such determination, the court shall consider whether the local social services district engaged in a search to locate any non-respondent parent and whether the local social services district attempted to locate all of the child's grandparents, all suitable relatives identified by any respondent parent and any non-respondent parent and all relatives identified by a child over the age of five as relatives who play or have played a significant positive role in the child's life. (ii) The court shall also consider and determine whether the need for placement of the child would be eliminated by the issuance of an order of protection, as provided for in paragraph (iv) of subdivision (a) of this section, directing the removal of a person or persons from the child's residence. Such determination shall consider the occurrence, if any, of domestic violence in the child's residence. (c) Prior to granting an order of disposition pursuant to subdivision (a) of this section following an adjudication of child abuse, as defined in paragraph (i) of subdivision (e) of section ten hundred twelve of this act or a finding of a felony sex offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65 and 130.70 of the penal law, the court shall advise the respondent that any subsequent adjudication of child abuse, as defined in paragraph (i) of subdivision (e) of section one thousand twelve of this act or any subsequent finding of a felony sex offense as defined in those sections of the penal law herein enumerated, arising out of acts of the respondent may result in the commitment of the guardianship and custody of the child or another child pursuant to section three hundred eighty-four-b of the social services law. The order in such cases shall contain a statement that any subsequent adjudication of child abuse or finding of a felony sex offense as described herein may result in the commitment of the guardianship and custody of the child, or another child pursuant to section three hundred eighty-four-b of the social services law. S 1052-a. Post-dispositional procedures. The local child protective service shall notify the child's attorney of an indicated report of child abuse or maltreatment in which the respondent is a subject of the report or another person named in the report, as such terms are defined in section four hundred twelve of the social services law, while any order issued pursuant to paragraph (i), (iii), (iv) or (v) of subdivision (a) of section one thousand fifty-two remains in effect against the respondent. S 1052-b. Duties of counsel. 1. If the court has entered a dispositional order pursuant to section one thousand fifty-two it shall be the duty of the respondent's counsel promptly to advise such respondent in writing of his or her right to appeal to the appropriate appellate division of the supreme court, the time limitations involved, the manner of instituting an appeal and obtaining a transcript of the testimony and the right to apply for leave to appeal as a poor person if the respondent is unable to pay the cost of an appeal. It shall be the further duty of such counsel to explain to the respondent the procedures for instituting an appeal, the possible reasons upon which an appeal may be based and the nature and possible consequences of the appellate process. 2. It also shall be the duty of such counsel to ascertain whether the respondent wishes to appeal and, if so, to serve and file the necessary notice of appeal. S 1052-c. Duty to report investigations to locate non-respondent parents or relatives. Upon a determination by the court to enter an order of disposition placing the child in accordance with section one thousand fifty-five of this part, the court shall immediately require the local social services district to report to the court the results of any investigation to locate any non-respondent parent or relatives of the child, including all of the child's grandparents, all suitable relatives identified by any respondent parent and any non-respondent parent and all relatives identified by a child over the age of five as relatives who play or have played a significant positive role in the child's life, as required pursuant to section one thousand seventeen of the article. Such report shall include whether any non-respondent parent has expressed an interest in seeking custody of the child or whether any relative who has been located has expressed an interest in becoming a foster parent for the child or in seeking custody or care of the child. S 1053. Suspended judgment. (a) Rules of court shall define permissible terms and conditions of a suspended judgment. These terms and conditions shall relate to the acts or omissions of the parent or other person legally responsible for the care of the child. (b) The maximum duration of any term or condition of a suspended judgment is one year, unless the court finds at the conclusion of that period, upon a hearing, that exceptional circumstances require an extension thereof for an additional year. (c) Except as provided for herein, in any order issued pursuant to this section, the court may require the child protective agency to make progress reports to the court, the parties, and the child's attorney on the implementation of such order. Where the order of disposition is issued upon the consent of the parties and the child's attorney, such agency shall report to the court, the parties and the child's attorney no later than ninety days after the issuance of the order, unless the court determines that the facts and circumstances of the case do not require such report to be made. S 1054. Release to custody of parent or other person responsible for care; supervision or order of protection. (a) If the order of disposition releases the child to the custody of his or her parent or other person legally responsible for his or her care at the time of the filing of the petition, the court may place the person to whose custody the child is released under supervision of a child protective agency or of a social services official or duly authorized agency, or may enter an order of protection under section one thousand fifty-six, or both. An order of supervision entered under this section shall set forth the terms and conditions of such supervision that the respondent must meet and the actions that the child protective agency, social services official or duly authorized agency must take to exercise such supervision. Except as provided for herein, in any order issued pursuant to this section, the court may require the child protective agency to make progress reports to the court, the parties, and the child's attorney on the implementation of such order. Where the order of disposition is issued upon the consent of the parties and the child's attorney, such agency shall report to the court, the parties and the child's attorney no later than ninety days after the issuance of the order, unless the court determines that the facts and circumstances of the case do not require such report to be made. (b) Rules of court shall define permissible terms and conditions of supervision under this section. The duration of any period of supervision shall be for an initial period of no more than one year and the court may at the expiration of that period, upon a hearing and for good cause shown, make successive extensions of such supervision of up to one year each. S 1055. Placement. (a) (i) For purposes of section one thousand fifty-two of this part the court may place the child in the custody of a relative or other suitable person pursuant to this article, or of the local commissioner of social services or of such other officer, board or department as may be authorized to receive children as public charges, or a duly authorized association, agency, society or in an institution suitable for the placement of a child. The court may also place a child who it finds to be a sexually exploited child as defined in subdivision one of section four hundred forty-seven-a of the social services law with the local commissioner of social services for placement in an available long-term safe house. The court may also place the child in the custody of the local commissioner of social services and may direct such commissioner to have the child reside with a relative or other suitable person who has indicated a desire to become a foster parent for the child and further direct such commissioner, pursuant to regulations of the office of children and family services, to commence an investigation of the home of such relative or other suitable person within twenty-four hours and thereafter expedite approval or certification of such relative or other suitable person, if qualified, as a foster parent. If such home is found to be unqualified for approval or certification, the local commissioner shall report such fact to the court forthwith so that the court may make a placement determination that is in the best interests of the child. (ii) An order placing a child directly with a relative or other suitable person pursuant to this part may not be granted unless the relative or other suitable person consents to the jurisdiction of the court. The court may place the person with whom the child has been directly placed under supervision of a child protective agency, social services official or duly authorized agency during the pendency of the proceeding. The court also may issue an order of protection under section one thousand fifty-six of this part. An order of supervision issued pursuant to this subdivision shall set forth the terms and conditions that the relative or suitable person must meet and the actions that the child protective agency, social services official or duly authorized agency must take to exercise such supervision. (b) (i) The court shall state on the record its findings supporting the placement in any order of placement made under this section. The order of placement shall include, but not be limited to: (A) a description of the visitation plan; (B) a direction that the respondent or respondents 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, of their right to attend the conference, and of their right to have counsel or another representative or companion with them; (C) a date certain for the permanency hearing, which may be the previously-scheduled date certain, but in no event more than eight months from the date of removal of the child from his or her home. Provided, however, that if there is a sibling or half-sibling of the child who was previously removed from the home pursuant to this article, the date certain for the permanency hearing shall be the date certain previously scheduled for the sibling or half-sibling of the child who was the first child removed from the home, where such sibling or half-sibling has a permanency hearing date certain scheduled within the next eight months, but in no event later than eight months from the date of removal of the child from his or her home; (D) 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. A copy of the court's order and the service plan shall be given to the respondent; and * (E) where the permanency goal is return to the parent and it is anticipated that the child may be finally discharged to his or her parent 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. Children placed under this section shall be placed until the court completes the initial permanency hearing scheduled pursuant to article ten-A of this act. Should the court determine pursuant to article ten-A of this act that placement shall be extended beyond completion of the scheduled permanency hearing, such extended placement and any such successive extensions of placement shall expire at the completion of the next scheduled permanency hearing, unless the court shall determine, pursuant to article ten-A of this act, to continue to extend such placement. * NB Sep amd; cannot be together * (E) where the permanency goal is return to the parent and it is anticipated that the child may be finally discharged to his or her parent 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 the 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 a youth is physically discharged but the local social services district retains care and custody or custody and guardianship of the youth 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 child reaches the age of twenty-one, if a child 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. Children placed under this section shall be placed until the court completes the initial permanency hearing scheduled pursuant to article ten-A of this act. Should the court determine pursuant to article ten-A of this act that placement shall be extended beyond completion of the scheduled permanency hearing, such extended placement and any such successive extensions of placement shall expire at the completion of the next scheduled permanency hearing, unless the court shall determine, pursuant to article ten-A of this act, to continue to extend such placement. * NB Sep amd; cannot be put together (ii) Upon placing a child under the age of one, who has been abandoned, with a local commissioner of social services, the court shall, where either of the parents do not appear after due notice, include in its order of disposition pursuant to section one thousand fifty-two of this part, a direction that such commissioner shall promptly commence a diligent search to locate the child's non-appearing parent or parents or other known relatives who are legally responsible for the child, and to commence a proceeding to commit the guardianship and custody of such child to an authorized agency pursuant to section three hundred eighty-four-b of the social services law, six months from the date that care and custody of the child was transferred to the commissioner, unless there has been communication and visitation between such child and such parent or parents or other known relatives or persons legally responsible for the child. In addition to such diligent search the local commissioner of social services shall provide written notice to the child's parent or parents or other known relatives or persons legally responsible as provided for in this paragraph. Such notice shall be served upon such parent or parents or other known relatives or persons legally responsible in the manner required for service of process pursuant to section six hundred seventeen of this act. Information regarding such diligent search, including, but not limited to, the name, last known address, social security number, employer's address and any other identifying information to the extent known regarding the non-appearing parent, shall be recorded in the uniform case record maintained pursuant to section four hundred nine-f of the social services law. (iii) Notice as required by paragraph (ii) of this subdivision shall state: (A) that the local commissioner of social services shall initiate a proceeding to commit the guardianship and custody of the subject child to an authorized agency and that such proceeding shall be commenced six months from the date the child was placed in the care and custody of such commissioner with such date to be specified in the notice; (B) that there has been no visitation and communication between the parent and the child since the child has been placed with the local commissioner of social services and that if no such visitation and communication with the child occurs within six months of the date the child was placed with such commissioner the child will be deemed an abandoned child as defined in section three hundred eighty-four-b of the social services law and a proceeding will be commenced to commit the guardianship and custody of the subject child to an authorized agency; (C) that it is the legal responsibility of the local commissioner of social services to reunite and reconcile families whenever possible and to offer services and assistance for that purpose; (D) the name, address and telephone number of the caseworker assigned to the subject child who can provide information, services and assistance with respect to reuniting the family; (E) that it is the responsibility of the parent, relative or other person legally responsible for the child to visit and communicate with the child and that such visitation and communication may avoid the necessity of initiating a petition for the transfer of custody and guardianship of the child. Such notice shall be printed in both Spanish and English and contain in conspicuous print and in plain language the information set forth in this paragraph. (c) In addition to or in lieu of an order of placement made pursuant to subdivision (b) of this section, the court may make an order directing a child protective agency, social services official or other duly authorized 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. 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 such agency or official including, but not limited to, requirements that such agency or official assist the parent or other person 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 non-custodial parent and grandparents who have obtained orders pursuant to part eight of this article, 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. (d) In addition to or in lieu of an order of placement made pursuant to subdivision (b) of this section, the court may make an order directing a social services official or other duly authorized agency to institute a proceeding to legally free the child for adoption, if the court finds reasonable cause to believe that grounds therefor exist. Upon a failure by such official or agency to institute such a 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 social services official or other duly authorized agency caring for the child, for good cause shown and upon due notice to all 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 children in a subsequent adoption proceeding. (e) No placement may be made or continued under this section beyond the child's eighteenth birthday without his or her consent and in no event past his or her twenty-first birthday. However, a former foster care youth under the age of twenty-one who was previously discharged from foster care due to a failure to consent to continuation of placement may make a motion pursuant to section one thousand ninety-one of this act 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. In such motion, the youth must consent to enrollment in and attendance at a vocational or educational program in accordance with paragraph two of subdivision (a) of section one thousand ninety-one of this act. (f) If a child is placed in the custody of the local commissioner of social services or other officer, board or department authorized to receive children as public charges, such person shall provide for such child as authorized by law, including, but not limited to section three hundred ninety-eight of the social services law. (g) If the parent or person legally responsible for the care of any such child or with whom such child resides receives public assistance and care, any portion of which is attributable to such child, a copy of the order of the court providing for the placement of such child from his or her home shall be furnished to the appropriate social services official, who shall reduce the public assistance and care furnished such parent or other person by the amount attributable to such child, provided, however, that when the child service plan prepared pursuant to section four hundred nine-e of the social services law includes a goal of discharge of the child to the parent or person legally responsible for the care of the child or other member of the household, such social services official shall not, to the extent that federal reimbursement is available therefor, reduce the portion attributable to such child which is intended to meet the cost of shelter and fuel for heating. (h) Any order made under this section shall be suspended upon the entry of an order of disposition with respect to a child whose custody and guardianship have been committed pursuant to section three hundred eighty-four-b of the social services law, and shall expire upon the expiration of the time for appeal of such order or upon the final determination of any such appeal and any subsequent appeals authorized by law; provided, however, that where custody and guardianship have been committed pursuant to section three hundred eighty-four-b of the social services law or where the child has been surrendered pursuant to section three hundred eighty-three-c or three hundred eighty-four of the social services law, the child shall nonetheless be deemed to continue in foster care until such time as an adoption or other alternative living arrangement is finalized. A permanency hearing or hearings regarding such child shall be conducted in accordance with article ten-A of this act. Nothing in this subdivision shall cause such order of placement to be suspended or to expire with respect to any parent or other person whose consent is required for an adoption against whom an order of disposition committing guardianship and custody of the child has not been made. (i) In making an order under this section, the court may direct a local commissioner of social services to place the subject child together with minor siblings or half-siblings who have been placed in the custody of the commissioner, or to provide or arrange for regular visitation and other forms of communication between such child and siblings where the court finds that such placement or visitation and communication is in the child's best interests. Placement or regular visitation and communication with siblings or half-siblings shall be presumptively in the child's best interests unless such placement or visitation and communication would be contrary to the child's health, safety or welfare, or the lack of geographic proximity precludes or prevents visitation. S 1055-a. Substantial failure of a material condition of surrender; enforcement of a contact agreement. (a) In case of a substantial failure of a material condition in a surrender executed pursuant to section three hundred eighty-three-c of the social services law prior to finalization of the adoption of the child, the court shall possess continuing jurisdiction in accordance with subdivision six of such section to rehear the matter upon the filing of a petition by the authorized agency, the parent or the attorney for the child or whenever the court deems necessary. In such case, the authorized agency shall notify the parent, unless such notice is expressly waived by a statement written by the parent and appended to or included in such instrument, the attorney for the child and the court that approved the surrender within twenty days of any substantial failure to comply with a material condition of the surrender prior to the finalization of the adoption of the child. In such case, the authorized agency shall file a petition on notice to the parent unless notice is expressly waived by a statement written by the parent and appended to or included in such instrument and the attorney for the child in accordance with this section within thirty days of such failure, except for good cause shown, in order for the court to review such failure and, where necessary, to hold a hearing; provided, however, that in the absence of such filing, the parent and/or attorney for the child may file such a petition at any time up to sixty days after notification of the failure. Such petition filed by a parent or child's attorney must be filed prior to the adoption of the child. (b) If an agreement for continuing contact and communication pursuant to paragraph (b) of subdivision two of section three hundred eighty-three-c of the social services law is approved by the court, and the child who is the subject of the approved agreement has not yet been adopted, any party to the approved agreement may file a petition with the family court in the county where the agreement was approved to enforce such agreement. A copy of the approved agreement shall be annexed to such petition. The court shall enter an order enforcing communication or contact pursuant to the terms and conditions of the agreement unless the court finds that enforcement would not be in the best interests of the child. (c) Nothing in this section shall limit the rights and remedies available to the parties and the attorney for the child pursuant to section one hundred twelve-b of the domestic relations law with respect to a failure to comply with a material condition of a surrender subsequent to the finalization of the adoption of the child. S 1055-b. Custody or guardianship with relatives or suitable persons pursuant to article six of this act or guardianship with such a person pursuant to article seventeen of the surrogate's court procedure act. (a) At the conclusion of the dispositional hearing under this article, the court may enter an order of disposition granting custody or guardianship of the child to a relative or other suitable person under article six of this act or an order of guardianship of the child to such a person under article seventeen of the surrogate's court procedure act if: (i) the relative or suitable person has filed a petition for custody or guardianship of the child pursuant to article six of this act or a petition for guardianship of the child under article seventeen of the surrogate's court procedure act; and (ii) 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 safety of the child will not be jeopardized if the respondent or respondents under the child protective proceeding are no longer under supervision or receiving services. 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 social services district 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 the fact-finding hearing pursuant to section one thousand fifty-one of this part and a permanency hearing pursuant to section one thousand eighty-nine 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 (iii) the court finds that granting custody or guardianship of the child to the relative or suitable person under article six of this act or granting guardianship of the child to the relative or other suitable person under article seventeen of the surrogate's court procedure act will provide the child with a safe and permanent home; and (iv) all parties to the child protective proceeding 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; or (v) after a consolidated dispositional hearing on the child protective petition and the petition under article six of this act or under 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; or (B) if a party other than the 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 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 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, that a fact-finding hearing pursuant to section one thousand fifty-one of this part and a permanency hearing pursuant to section one thousand eighty-nine of this chapter has occurred, and the compelling reasons that 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 for the child, and shall constitute the final disposition of the child protective 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 respondent or respondents when granting custody or guardianship pursuant to article six of this act under this section or granting guardianship under article seventeen of the surrogate's court procedure act. (c) As part of the order granting custody or guardianship pursuant to article six of this act or granting 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 or the order of guardianship granted pursuant to article seventeen of the surrogate's court procedure act; provided, however, if the guardian and the local department of social services had 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 regarding custody or guardianship of the child. (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. (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. 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. S 1056. Order of protection. 1. The court may make an order of protection in assistance or as a condition of any other order made under this part. Such order of protection shall remain in effect concurrently with, shall expire no later than the expiration date of, and may be extended concurrently with, such other order made under this part, except as provided in subdivision four of this section. The order of protection may set forth reasonable conditions of behavior to be observed for a specified time by a person who is before the court and is a parent or a person legally responsible for the child's care or the spouse of the parent or other person legally responsible for the child's care, or both. Such an order may require any such person (a) to stay away from the home, school, business or place of employment of the other spouse, parent or person legally responsible for the child's care or the child, and to stay away from any other specific location designated by the court; (b) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods; (c) to refrain from committing a family offense, as defined in subdivision one of section eight hundred twelve of this act, or any criminal offense against the child or against the other parent or against any person to whom custody of the child is awarded, or from harassing, intimidating or threatening such persons; (d) to permit a designated party to enter the residence during a specified period of time in order to remove personal belongings not in issue in this proceeding or in any other proceeding or action under this act or the domestic relations law; (e) to refrain from acts of commission or omission that create an unreasonable risk to the health, safety and welfare of a child; (f) to provide, either directly or by means of medical and health insurance, for expenses incurred for medical care and treatment arising from the incident or incidents forming the basis for the issuance of the order; (g) 1. to refrain from intentionally injuring or killing, without justification, any companion animal the respondent knows to be owned, possessed, leased, kept or held by the person protected by the order or a minor child residing in such person's household. 2. "Companion animal", as used in this section, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law; (h) 1. to promptly return specified identification documents to the protected party, in whose favor the order of protection or temporary order of protection is issued; provided, however, that such order may: (A) include any appropriate provision designed to ensure that any such document is available for use as evidence in this proceeding, and available if necessary for legitimate use by the party against whom such order is issued; and (B) specify the manner in which such return shall be accomplished. 2. For purposes of this paragraph, "identification document" shall mean any of the following: (A) exclusively in the name of the protected party: birth certificate, passport, social security card, health insurance or other benefits card, a card or document used to access bank, credit or other financial accounts or records, tax returns, any driver's license, and immigration documents including but not limited to a United States permanent resident card and employment authorization document; and (B) upon motion and after notice and an opportunity to be heard, any of the following, including those that may reflect joint use or ownership, that the court determines are necessary and are appropriately transferred to the protected party: any card or document used to access bank, credit or other financial accounts or records, tax returns, and any other identifying cards and documents; and (i) to observe such other conditions as are necessary to further the purposes of protection. 2. The court may also award custody of the child, during the term of the order of protection to either parent, or to an appropriate relative within the second degree. Nothing in this section gives the court power to place or board out any child or to commit a child to an institution or agency. In making orders of protection, the court shall so act as to insure that in the care, protection, discipline and guardianship of the child his religious faith shall be preserved and protected. 3. Notwithstanding the foregoing provisions, an order of protection, or temporary order of protection where applicable, may be entered against a former spouse and persons who have a child in common, regardless of whether such persons have been married or have lived together at any time, or against a member of the same family or household as defined in subdivision one of section eight hundred twelve of this act. 4. The court may enter an order of protection independently of any other order made under this part, against a person who was a member of the child's household or a person legally responsible as defined in section one thousand twelve of this chapter, and who is no longer a member of such household at the time of the disposition and who is not related by blood or marriage to the child or a member of the child's household. An order of protection entered pursuant to this subdivision may be for any period of time up to the child's eighteenth birthday and upon such conditions as the court deems necessary and proper to protect the health and safety of the child and the child's caretaker. 5. The court may issue an order, pursuant to section two hundred twenty-seven-c of the real property law, authorizing the party for whose benefit any order of protection has been issued to terminate a lease or rental agreement pursuant to section two hundred twenty-seven-c of the real property law. 6. In any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss an application for such an order, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the application or the conclusion of the action. The duration of any temporary order shall not by itself be a factor in determining the length or issuance of any final order. 7. The protected party in whose favor the order of protection or temporary order of protection is issued may not be held to violate an order issued in his or her favor nor may such protected party be arrested for violating such order. S 1056-a. Firearms; surrender and license suspension, revocation and ineligibility. Upon the issuance of an order of protection or temporary order of protection, or upon a violation of such order, the court shall make an order in accordance with section eight hundred forty-two-a of this act. S 1057. Supervision. The court may place the respondent under supervision of a child protective agency or of a social services official or duly authorized agency. An order of supervision entered under this section shall set forth the terms and conditions of such supervision that the respondent must meet and the actions that the child protective agency, social services official or duly authorized agency must take to exercise such supervision. Except as provided for herein, in any order issued pursuant to this section, the court may require the child protective agency to make progress reports to the court, the parties, and the child's attorney on the implementation of such order. Where the order of disposition is issued upon the consent of the parties and the child's attorney, such agency shall report to the court, the parties and the child's attorney no later than ninety days after the issuance of the order, unless the court determines that the facts and circumstances of the case do not require such report to be made. Rules of court shall define permissible terms and conditions of supervision under this section. The duration of any period of supervision shall be for an initial period of no more than one year and the court may at the expiration of that period, upon a hearing and for good cause shown, make successive extensions of such supervision of up to one year each. S 1058. Expiration of orders. No later than sixty days prior to the expiration of an order issued pursuant to paragraph (i), (ii), (iv), or (v) of subdivision (a) of section one thousand fifty-two of this part or prior to the conclusion of the period of an adjournment in contemplation of dismissal pursuant to section one thousand thirty-nine of this article, where no application has been made seeking extension of such orders or adjournments and, with respect to an adjournment in contemplation of dismissal, no violations of the court's order are before the court, the child protective agency shall, whether or not the child has been or will be returned to the family, report to the court, the parties, including any non-respondent parent and the child's attorney on the status and circumstances of the child and family and any actions taken or contemplated by such agency with respect to such child and family. 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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