Bill Text: NY S05457 | 2011-2012 | General Assembly | Introduced
Bill Title: Provides for the care and custody of destitute children.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-04 - REFERRED TO CHILDREN AND FAMILIES [S05457 Detail]
Download: New_York-2011-S05457-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 5457 2011-2012 Regular Sessions I N S E N A T E May 24, 2011 ___________ Introduced by Sen. SAVINO -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families AN ACT to amend the social services law and the family court act, in relation to the care and custody of destitute children; and to repeal paragraph (i) of subdivision 6 of section 398 of the social services law relating to providing care for destitute minors between sixteen and eighteen years of age THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subdivision 3 of section 371 of the social services law, as 2 amended by chapter 722 of the laws of 1978, paragraph (d) as amended and 3 paragraph (e) as added by chapter 342 of the laws of 2010, is amended to 4 read as follows: 5 3. "Destitute child" means a child who[, through no neglect on the 6 part of its parent, guardian or custodian, is] 7 (a) [destitute or homeless, or 8 (b)] IS NOT SUBJECT TO ARTICLE TEN OF THE FAMILY COURT ACT, IS UNAC- 9 COMPANIED BY A PARENT OR OTHER LEGALLY RESPONSIBLE PERSON, AND IS EITHER 10 in a state of want or suffering due to lack of sufficient food, cloth- 11 ing, [or] shelter, or medical or surgical care, or 12 [(c) a person under the age of eighteen years who is absent from his 13 legal residence without the consent of his parent, legal guardian or 14 custodian, or 15 (d) a person under the age of eighteen who] is without a place of 16 shelter where APPROPRIATE supervision and care are available, or 17 [(e)] (B) IS a former foster care youth under the age of twenty-one 18 who was previously placed in the care and custody or custody and guardi- 19 anship of the local commissioner of social services or other officer, 20 board or department authorized to receive children as public charges, 21 and who was discharged from foster care due to a failure to consent to 22 continuation in placement, who has returned to foster care pursuant to 23 section one thousand ninety-one of the family court act. 24 S 2. The social services law is amended by adding a new section 384-d 25 to read as follows: EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11267-01-1 S. 5457 2 1 S 384-D. CARE AND CUSTODY OF DESTITUTE CHILDREN. 1. SCOPE. THIS 2 SECTION PROVIDES A MECHANISM FOR A LOCAL COMMISSIONER OF SOCIAL SERVICES 3 TO OBTAIN AN ORDER OF CUSTODY FOR CERTAIN DESTITUTE CHILDREN FOR WHOM HE 4 OR SHE IS PROVIDING CARE AND FOR CONTINUED COURT REVIEW OF THE CARE OF 5 THESE CHILDREN. 6 2. INITIATION OF JUDICIAL PROCEEDING. A LOCAL COMMISSIONER OF SOCIAL 7 SERVICES SHALL, WITHIN THIRTY DAYS OF ACCEPTING THE CARE AS A PUBLIC 8 CHARGE OF A CHILD WHO APPEARS TO BE A DESTITUTE CHILD, AS DEFINED IN 9 PARAGRAPH (A) OF SUBDIVISION THREE OF SECTION THREE HUNDRED SEVENTY-ONE 10 OF THIS TITLE, FILE A PETITION IN THE FAMILY COURT ALLEGING THAT THE 11 CHILD IS A DESTITUTE CHILD AND REQUESTING THAT THE COURT PLACE THE CHILD 12 IN THE TEMPORARY CARE AND CUSTODY OF SUCH COMMISSIONER WHILE AN INVESTI- 13 GATION IS COMMENCED TO DETERMINE WHETHER THE CHILD IS AN ABUSED OR 14 NEGLECTED CHILD SUBJECT TO THE PROVISIONS OF ARTICLE TEN OF THE FAMILY 15 COURT ACT OR A DESTITUTE CHILD AS DEFINED IN PARAGRAPH (A) OF SUBDIVI- 16 SION THREE OF SECTION THREE HUNDRED SEVENTY-ONE OF THIS TITLE. 17 3. CONTENTS OF PETITION. (A) THE PETITION SHALL SET FORTH: 18 (I) THE BASIS FOR THE BELIEF THAT THE CHILD IS A DESTITUTE CHILD; 19 (II) WHETHER THE WHEREABOUTS OF THE PARENT OR PARENTS, GUARDIAN OR 20 GUARDIANS, OR OTHER PERSON LEGALLY RESPONSIBLE ARE KNOWN, AND IF SO, THE 21 ALLEGED ADDRESS OF THAT PERSON; AND 22 (III) ANY OTHER KNOWN PERSONS LEGALLY RESPONSIBLE FOR THE CHILD, AND 23 ANY OTHER RELATIVES OF THE CHILD. 24 (B) THE PETITION SHALL CONTAIN A NOTICE IN CONSPICUOUS PRINT PROVIDING 25 THAT IF THE CHILD REMAINS IN FOSTER CARE FOR FIFTEEN OF THE TWENTY-TWO 26 MONTHS THAT FOLLOW, THE AGENCY MAY BE REQUIRED BY LAW TO FILE A PETITION 27 TO TERMINATE PARENTAL RIGHTS. 28 (C) THE PETITION SHALL ALSO SET FORTH THE EFFORTS THAT WERE MADE, 29 PRIOR TO THE PLACEMENT OF THE CHILD INTO FOSTER CARE, TO PREVENT REMOVAL 30 OF THE CHILD FROM HIS OR HER HOME AND THE EFFORTS WHICH WERE MADE, PRIOR 31 TO THE FILING OF THE PETITION, TO MAKE IT POSSIBLE FOR THE CHILD TO 32 RETURN SAFELY HOME. IF SUCH EFFORTS WERE NOT MADE, THE PETITION SHALL 33 SET FORTH THE REASONS WHY THESE EFFORTS WERE NOT MADE. 34 (D) THE PETITION SHALL REQUEST THAT A TEMPORARY ORDER BE MADE TRANS- 35 FERRING THE CARE AND CUSTODY OF THE CHILD TO THE LOCAL COMMISSIONER OF 36 SOCIAL SERVICES. 37 4. INITIAL APPEARANCE. AT THE INITIAL APPEARANCE: 38 (A) THE COURT SHALL APPOINT AN ATTORNEY TO REPRESENT THE CHILD; AND 39 (B) THE COURT SHALL CONSIDER THE FOLLOWING ISSUES AND INCLUDE ITS 40 FINDINGS IN ITS ORDER: 41 (I) WHETHER PLACEMENT OF THE CHILD IN THE TEMPORARY CARE AND CUSTODY 42 OF THE LOCAL COMMISSIONER OF SOCIAL SERVICES IS IN THE BEST INTEREST OF 43 THE CHILD; 44 (II) WHETHER IT WOULD BE CONTRARY TO THE WELFARE OF THE CHILD TO 45 CONTINUE IN HIS OR HER OWN HOME; 46 (III) WHETHER, WHERE APPROPRIATE, REASONABLE EFFORTS WERE MADE PRIOR 47 TO THE PLACEMENT OF THE CHILD INTO FOSTER CARE TO PREVENT REMOVAL FROM 48 HIS OR HER HOME; 49 (IV) WHETHER, PRIOR TO THE INITIATION OF THE COURT PROCEEDING REQUIRED 50 PURSUANT TO THIS SUBDIVISION, REASONABLE EFFORTS WERE MADE TO MAKE IT 51 POSSIBLE FOR THE CHILD TO RETURN SAFELY HOME; AND 52 (V) IF REASONABLE EFFORTS TO PREVENT THE NECESSITY FOR REMOVAL OF THE 53 CHILD FROM THE HOME WERE NOT MADE, WHETHER THE ABSENCE OF THOSE EFFORTS 54 WAS REASONABLE UNDER THE CIRCUMSTANCES. 55 (C) IF THE COURT PLACES THE CHILD IN THE TEMPORARY CUSTODY OF THE 56 LOCAL COMMISSIONER OF SOCIAL SERVICES, THE COURT SHALL: S. 5457 3 1 (I) ORDER AN INVESTIGATION INTO THE FAMILY CIRCUMSTANCES OF THE CHILD 2 IN ORDER TO DETERMINE WHAT ASSISTANCE AND CARE, SUPERVISION OR TREAT- 3 MENT, IF ANY, SUCH CHILD REQUIRES; 4 (II) SCHEDULE A RETURN DATE FOR AN INVESTIGATION REVIEW PROCEEDING 5 WITHIN SIXTY DAYS IN ACCORDANCE WITH SUBDIVISION SIX OF THIS SECTION; 6 (III) SCHEDULE A DATE CERTAIN FOR AN INITIAL PERMANENCY HEARING PURSU- 7 ANT TO PARAGRAPH TWO OF SUBDIVISION (A) OF SECTION ONE THOUSAND EIGHTY- 8 NINE OF THE FAMILY COURT ACT. THIS DATE SHALL BE NO LATER THAN EIGHT 9 MONTHS FROM THE DATE THE LOCAL COMMISSIONER OF SOCIAL SERVICES ACCEPTED 10 CARE OF THE CHILD. 11 5. NOTICE. AT THE INITIAL APPEARANCE AND AT ANY HEARING THEREAFTER, 12 THE COURT MAY DIRECT THAT SERVICE OF A NOTICE OF THE PROCEEDING AND A 13 COPY OF THE PETITION SHALL BE MADE UPON THE PARENT OR PARENTS, GUARDIAN 14 OR GUARDIANS OR OTHER LEGALLY RESPONSIBLE PERSON IN SUCH MANNER AS THE 15 COURT MAY DIRECT. IF THE COURT ORDERS SERVICE BY PUBLICATION, SERVICE 16 SHALL BE MADE PURSUANT TO RULE THREE HUNDRED SIXTEEN OF THE CIVIL PRAC- 17 TICE LAW AND RULES, PROVIDED THAT A SINGLE PUBLICATION OF THE SUMMONS OR 18 OTHER PROCESS WITH A NOTICE IN ONLY ONE NEWSPAPER DESIGNATED IN THE 19 ORDER SHALL BE SUFFICIENT. IN NO EVENT SHALL THE ENTIRE PETITION BE 20 PUBLISHED. THE NOTICE TO BE PUBLISHED WITH THE SUMMONS OR OTHER PROCESS 21 SHALL STATE THE DATE, TIME, PLACE AND PURPOSE OF THE PROCEEDING. 22 6. INVESTIGATION REVIEW PROCEEDING. AT THE INVESTIGATION REVIEW 23 PROCEEDING, THE COURT SHALL: 24 (A) REVIEW THE RESULT OF THE INVESTIGATION CONDUCTED BY THE LOCAL 25 COMMISSIONER OF SOCIAL SERVICES OF THE FAMILY CIRCUMSTANCES OF THE 26 CHILD; 27 (B) DETERMINE WHETHER: 28 (I) FURTHER INVESTIGATION IS NECESSARY, AND IF SO, SCHEDULE A DATE FOR 29 SUCH PROCEEDING; 30 (II) NOTICE SHALL BE MADE UPON ANY PARENT, GUARDIAN OR OTHER LEGALLY 31 RESPONSIBLE PERSON AND THE METHOD OF SUCH NOTICE; 32 (III) A PETITION UNDER ARTICLE TEN OF THE FAMILY COURT ACT SHOULD BE 33 SUBSTITUTED FOR THE PROCEEDING DESCRIBED BY THIS SECTION; AND 34 (IV) THE CHILD IS A DESTITUTE CHILD AS DEFINED IN PARAGRAPH (A) OF 35 SUBDIVISION THREE OF SECTION THREE HUNDRED SEVENTY-ONE OF THIS TITLE. 36 7. DISPOSITION AND ORDER. IF THE COURT DETERMINES THAT THE CHILD IS A 37 DESTITUTE CHILD, THE COURT SHALL ISSUE AN ORDER PLACING THE CHILD IN THE 38 CARE AND CUSTODY OF THE LOCAL COMMISSIONER OF SOCIAL SERVICES. 39 (A) SUCH ORDER SHALL CONTAIN THE DATE SCHEDULED FOR THE INITIAL 40 PERMANENCY HEARING. 41 (B) SUCH ORDER SHALL REQUIRE THAT THE PLACEMENT CONTINUE UNTIL THE 42 COMPLETION OF THE INITIAL PERMANENCY HEARING. 43 (C) IF THE COURT DETERMINES THAT PLACEMENT SHOULD CONTINUE AFTER 44 COMPLETION OF THE INITIAL PERMANENCY HEARING, SUBSEQUENT PERMANENCY 45 HEARINGS SHALL BE SCHEDULED PURSUANT TO PARAGRAPH TWO OF SUBDIVISION (A) 46 OF SECTION ONE THOUSAND EIGHTY-NINE OF THE FAMILY COURT ACT. 47 S 3. Subdivision 1 of section 398 of the social services law is 48 amended to read as follows: 49 1. As to destitute children: Assume charge of, and provide CARE AND 50 support for, any destitute child who cannot be properly cared for in his 51 OR HER home, AND FILE A PETITION TO OBTAIN CUSTODY OF A DESTITUTE CHILD 52 AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION THREE OF SECTION THREE 53 HUNDRED SEVENTY-ONE OF THIS ARTICLE PURSUANT TO SECTION THREE HUNDRED 54 EIGHTY-FOUR-D OF THIS ARTICLE. 55 4. The opening paragraph and paragraphs (a), (b) and (f) of subdivi- 56 sion 2 of section 398 of the social services law, the opening paragraph S. 5457 4 1 and paragraph (a) as amended by chapter 880 of the laws of 1976, para- 2 graph (b) as amended by chapter 555 of the laws of 1978 and paragraph 3 (f) as added by chapter 627 of the laws of 1984, are amended to read as 4 follows: 5 As to neglected, abused [or], abandoned, OR DESTITUTE children: 6 (a) Investigate [the] ANY alleged neglect, abuse or abandonment of a 7 child[,]; offer protective social services to prevent injury to the 8 child, to safeguard his OR HER welfare, and to preserve and stabilize 9 family life wherever possible [and,]; if necessary, bring the case 10 before the family court for adjudication and care for the child until 11 the court acts in the matter; and, in the case of an abandoned OR A 12 DESTITUTE child, AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION THREE OF 13 SECTION THREE HUNDRED SEVENTY-ONE OF THIS ARTICLE, [shall] promptly 14 petition the family court to obtain custody of such child. 15 (b) Receive and care for any child alleged to be neglected, abused 16 [or], abandoned, OR DESTITUTE who is temporarily placed in [his] THE 17 care OF THE LOCAL COMMISSIONER OF SOCIAL SERVICES by the family court 18 pending adjudication by such court of the alleged neglect, abuse or 19 abandonment, OR FINDING THAT THE CHILD IS A DESTITUTE CHILD, including 20 the authority to establish, operate, maintain and approve facilities for 21 such purpose in accordance with the regulations of the [department] 22 OFFICE OF CHILDREN AND FAMILY SERVICES; and receive and care for any 23 neglected, abused [or], abandoned, OR DESTITUTE child placed or 24 discharged to [his] THE care OF THE LOCAL COMMISSIONER OF SOCIAL 25 SERVICES by the family court. 26 (f) Report to the local criminal justice agency and to the statewide 27 central register for missing children as described in section eight 28 hundred thirty-seven-e of the executive law such information as required 29 on a form prescribed by the commissioner of the division of criminal 30 justice services within forty-eight hours after an abandoned OR DESTI- 31 TUTE child is found. 32 S 5. Paragraph (i) of subdivision 6 of section 398 of the social 33 services law is REPEALED. 34 S 6. Subdivision (a) of section 249 of the family court act, as 35 amended by chapter 41 of the laws of 2010, is amended to read as 36 follows: 37 (a) In a proceeding under article three, seven, ten or ten-A of this 38 act or where a revocation of an adoption consent is opposed under 39 section one hundred fifteen-b of the domestic relations law or in any 40 proceeding under section three hundred fifty-eight-a, three hundred 41 eighty-three-c, three hundred eighty-four [or], three hundred eighty- 42 four-b, OR THREE HUNDRED EIGHTY-FOUR-D of the social services law or 43 when a minor is sought to be placed in protective custody under section 44 one hundred fifty-eight of this act, the family court shall appoint an 45 attorney to represent a minor who is the subject of the proceeding or 46 who is sought to be placed in protective custody, if independent legal 47 representation is not available to such minor. In any proceeding to 48 extend or continue the placement of a juvenile delinquent or person in 49 need of supervision pursuant to section seven hundred fifty-six or 353.3 50 of this act or any proceeding to extend or continue a commitment to the 51 custody of the commissioner of mental health or the commissioner of 52 mental retardation and developmental disabilities pursuant to section 53 322.2 of this act, the court shall not permit the respondent to waive 54 the right to be represented by counsel chosen by the respondent, 55 respondent's parent, or other person legally responsible for the 56 respondent's care, or by assigned counsel. In any other proceeding in S. 5457 5 1 which the court has jurisdiction, the court may appoint an attorney to 2 represent the child, when, in the opinion of the family court judge, 3 such representation will serve the purposes of this act, if independent 4 legal counsel is not available to the child. The family court on its own 5 motion may make such appointment. 6 S 7. Section 1086 of the family court act, as added by section 27 of 7 part A of chapter 3 of the laws of 2005, is amended to read as follows: 8 S 1086. Purpose. The purpose of this article is to establish uniform 9 procedures for permanency hearings for all children who are placed in 10 foster care pursuant to section three hundred fifty-eight-a, three 11 hundred eighty-four [or], three hundred eighty-four-a, OR THREE HUNDRED 12 EIGHTY-FOUR-D of the social services law or pursuant to section one 13 thousand twenty-two, one thousand twenty-seven, or one thousand fifty- 14 two of this act; children who are directly placed with a relative pursu- 15 ant to section one thousand seventeen or one thousand fifty-five of this 16 act; and children who are freed for adoption. It is meant to provide 17 children placed out of their homes timely and effective judicial review 18 that promotes permanency, safety and well-being in their lives. 19 S 8. Subdivision (a) of section 1087 of the family court act, as 20 amended by chapter 342 of the laws of 2010, is amended to read as 21 follows: 22 (a) "Child" shall mean a person under the age of eighteen who is 23 placed in foster care pursuant to section three hundred fifty-eight-a, 24 three hundred eighty-four [or], three hundred eighty-four-a, OR THREE 25 HUNDRED EIGHTY-FOUR-D of the social services law or pursuant to section 26 one thousand twenty-two, one thousand twenty-seven, or one thousand 27 fifty-two of this act; or directly placed with a relative pursuant to 28 section one thousand seventeen or one thousand fifty-five of this act; 29 or who has been freed for adoption or a person between the ages of eigh- 30 teen and twenty-one who has consented to continuation in foster care or 31 trial discharge status; or a former foster care youth under the age of 32 twenty-one for whom a court has granted a motion to permit the former 33 foster care youth to return to the custody of the local commissioner of 34 social services or other officer, board or department authorized to 35 receive children as public charges. 36 S 9. Section 1088 of the family court act, as separately amended by 37 chapters 41 and 342 of the laws of 2010, is amended to read as follows: 38 S 1088. Continuing court jurisdiction. If a child is placed pursuant 39 to section three hundred fifty-eight-a, three hundred eighty-four, [or] 40 three hundred eighty-four-a OR THREE HUNDRED EIGHTY-FOUR-D of the social 41 services law, or pursuant to section one thousand seventeen, one thou- 42 sand twenty-two, one thousand twenty-seven or one thousand fifty-two of 43 this act, or directly placed with a relative pursuant to section one 44 thousand seventeen or one thousand fifty-five of this act; or if the 45 child is freed for adoption pursuant to section three hundred eighty- 46 three-c, three hundred eighty-four or three hundred eighty-four-b of the 47 social services law, the case shall remain on the court's calendar and 48 the court shall maintain jurisdiction over the case until the child is 49 discharged from placement and all orders regarding supervision, 50 protection or services have expired. The court shall rehear the matter 51 whenever it deems necessary or desirable, or upon motion by any party 52 entitled to notice in proceedings under this article, or by the attorney 53 for the child, and whenever a permanency hearing is required by this 54 article. While the court maintains jurisdiction over the case, the 55 provisions of section one thousand thirty-eight of this act shall 56 continue to apply. The court shall also maintain jurisdiction over a S. 5457 6 1 case for purposes of hearing a motion to permit a former foster care 2 youth under the age of twenty-one who was discharged from foster care 3 due to a failure to consent to continuation of placement to return to 4 the custody of the local commissioner of social services or other offi- 5 cer, board or department authorized to receive children as public charg- 6 es. 7 S 10. Paragraph 2 of subdivision (a) of section 1089 of the family 8 court act, as amended by chapter 437 of the laws of 2006, is amended to 9 read as follows: 10 (2) All other permanency hearings. At the conclusion of the hearing 11 pursuant to section one thousand twenty-two, one thousand twenty-seven, 12 or one thousand fifty-two of this act, OR SECTION THREE HUNDRED EIGHTY- 13 FOUR-D OF THE SOCIAL SERVICES LAW, at which the child was remanded or 14 placed and upon the court's approval of a voluntary placement instrument 15 pursuant to section three hundred fifty-eight-a of the social services 16 law, the court shall set a date certain for an initial permanency hear- 17 ing, advise all parties in court of the date set and include the date in 18 the order. Orders issued in subsequent court hearings prior to the 19 permanency hearing, including, but not limited to, the order of place- 20 ment issued pursuant to section one thousand fifty-five of this act, OR 21 PURSUANT TO SECTION THREE HUNDRED EIGHTY-FOUR-D OF THE SOCIAL SERVICES 22 LAW, shall include the date certain for the permanency hearing. The 23 initial permanency hearing shall be commenced no later than six months 24 from the date which is sixty days after the child was removed from his 25 or her home; provided, however, that if a sibling or half-sibling of the 26 child has previously been removed from the home and has a permanency 27 hearing date certain scheduled within the next eight months, the perman- 28 ency hearing for each child subsequently removed from the home shall be 29 scheduled on the same date certain that has been set for the first child 30 removed from the home, unless such sibling or half-sibling has been 31 removed from the home pursuant to article three or seven of this act. 32 The permanency hearing shall be completed within thirty days of the 33 scheduled date certain. 34 S 11. Subdivision (a) of section 1090 of the family court act, as 35 separately amended by chapters 41 and 342 of the laws of 2010, is 36 amended to read as follows: 37 (a) If an attorney for the child has been appointed by the family 38 court in a proceeding pursuant to section three hundred fifty-eight-a, 39 three hundred eighty-three-c, three hundred eighty-four, [or] three 40 hundred eighty-four-b, OR THREE HUNDRED EIGHTY-FOUR-D of the social 41 services law, or article ten of this act, the appointment of the attor- 42 ney for the child shall continue without further court order or appoint- 43 ment, unless another appointment of an attorney for the child has been 44 made by the court, until the child is discharged from placement and all 45 orders regarding supervision, protection or services have expired. The 46 attorney shall also represent the child without further order or 47 appointment in any proceedings under article ten-B of this act. All 48 notices, reports and motions required by law shall be provided to the 49 child's attorney. The child's attorney may be relieved of his or her 50 representation upon application to the court for termination of the 51 appointment. Upon approval of the application, the court shall imme- 52 diately appoint another attorney to whom all notices, reports, and 53 motions required by law shall be provided. 54 S 12. This act shall take effect immediately.