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Legislation and Regulations

Chapter 3 of the Laws of 2005: Governor's Permanency Bill

Effective December 21, 2005, except those provisions marked with an asterisk (**) which are effective November 21, 2005

General Issues:

  • Provides specific authority for conferencing and mediation in Family Court Act (FCA) Article 10 proceedings.
    FCA §1018
  • Expedites processing of appeals in all child welfare proceedings.
    FCA §§1112, 1115, 1118, 1120, 1121; Civil Practice Law & Rules (CPLR) §§1101, 5521

Child Protective Services (CPS) Investigations:

  • Requires mandated reporters to provide records regarding a mandated report necessary for a CPS investigation, irrespective of HIPAA proscriptions or any other privilege.
    Social Services Law (SSL) §415 **
  • Permits a pre-petition application to a court for disclosure of substance abuse treatment records necessary for a CPS investigation, pursuant to federal law and regulations.
    SSL §415 **

Entry into Foster Care:

  • Changes the time frames for filing of a petition and the hearing when a child is removed from his or her home.
    FCA §§1021, 1022, 1026, 1027, 1035
  • Requires a court to hold a hearing within one court day of the filing of an Article 10 petition where a child has been removed from his or her home without court order or where the parent was not represented and did not waive his or her right to counsel in a FCA §1022 hearing, to determine the appropriateness of the removal, including determination of imminent risk, best interests and reasonable efforts, without requiring that the parent to affirmatively request such a hearing.
    FCA §§1021, 1022, 1026, 1027, 1035
  • Requires a court to calendar a FCA §1022 or §1027 hearing immediately and continue the hearing until a determination is made regarding the appropriateness of the removal, including determination of imminent risk, best interests and reasonable efforts.
    FCA §§1022(a)(ii), 1027(a)(i)
  • Defines a non-respondent parent for purposes of notice of the Article 10 proceeding and the immediate investigation required by FCA §1017.
    FCA §1017(1)
  • Requires certain information regarding any non-respondent parent(s) and other relatives be investigated and recorded in the UCR.
    FCA §1017; SSL §§ 384-a, 383-c, 384
  • Requires a court to set a date certain for the first permanency hearing at the removal hearing or the hearing approving the voluntary placement agreement or surrender of a child, if the child remains in foster care. Requires the date certain set for the permanency hearing to be included in the written order issued by the court and served upon the parents.
    FCA §§1022, 1027, 1089
  • Allows a court to make an Article 6 custody placement of a child removed from his or her home under FCA Article 10 with a relative or other suitable person without the need to commence a separate proceeding (file another petition).
    FCA §1017(2)(a)(i)
  • Clarifies the authority for the court to order a direct placement of a child removed from his or her home under FCA Article 10 with a relative or other suitable person.
    FCA §1017(2)(a)(ii)
  • Provides a court with continuing jurisdiction over the parties in proceedings where a child is placed in foster care whether under Article 10 or voluntarily placed, until all orders expire or all appeals are decided. Does not apply to Article 3 (Juvenile Delinquency [JD]) or Article 7 (Person In Need of Supervision [PINS]) proceedings.
    FCA §1088; SSL §358-a
  • Requires the court to maintain the case on the court's calendar until all orders expire or all appeals are decided.
    FCA §1088
  • All actions under FCA Article 10 and regarding a child voluntarily placed or surrender which previously required a new proceeding be initiated with a petition and jurisdiction obtained over the parties may now be commenced by motion.
    FCA §§1062-1066; SSL §§358-a, 384-a
  • Requires a local social services district (ldss) to assess a child and his or her family or update an assessment and develop a services plan for the child and his or her family within 30 days of removal from his or her home for all foster care and Article 10 direct custody placements.
    SSL §409-e

While a Child is Placed:

  • Provides that a child is placed until completion of the next scheduled permanency hearing scheduled pursuant to FCA Article 10-A.
    FCA §§1055(b)(i), 1089(d)(2)(ii); SSL §384-a(2)(h)(iii)
  • Provides eligible parents with an appointed attorney to represent them while their child remains in foster care (the same attorney, until replaced upon application to the court), until all appeals are finally determined or all orders expire.
    FCA §§262, 1090
  • Provides a one-year time limit for a parent to apply to re-open a default judgment in an Article 10 proceeding. Requires the parent to allege a meritorious defense to the underlying Article 10 petition.
    FCA §1042 **
  • Creates a new Article 10-A of the FCA pertaining to all permanency hearings for freed children, children placed under Article 10, children voluntarily placed, and youth between the ages of 18 and 21 who consent to remain in foster care.
    FCA §§1086 - 1090
  • Requires the first permanency hearing after a child is removed from home be commenced on the date certain set by the court within 8 months of removal from home (date of removal plus 60 days, plus 6 months). Requires the hearing to be completed within 30 days of the date certain.
    FCA §1089(a)(2)
  • Requires subsequent permanency hearings be commenced at least every six months thereafter if the child remains in foster care, on a date certain set by the court at the completion of the previous permanency hearing. Requires the hearing to be completed within 30 days of the date certain.
    FCA 1089(a)(3)
  • Requires permanency hearings for youth ages 18 to 21 who consent to continued foster care.
    FCA §1087(a)
  • Requires that a ldss file with the court and serve the parties by regular mail 14 days prior to the date certain set for the permanency hearing, a report containing specific information regarding a child's well being, including health, educational progress, and current placement; visitation plans; parent status and progress, services offered to the parent and any barriers to the delivery of appropriate services; and reasonable efforts made by the ldss to effectuate the permanency plan. Requires specific recommendations for changes to the permanency plan. No petition is required.
    FCA §§1087(e), 1089(b)
  • Requires concurrent planning efforts for an alternative permanency plan for a child be included in the permanency hearing report where it is likely that the child will not return home.
    FCA §1089(c)(4)(iii)
  • Changes the permanency goal "another planned permanent living arrangement" to "another planned permanent living arrangement that includes a significant connection to an adult willing to be a permanency resource for the child".
    FCA §§1089(c)(1)(v), 1089(d)(2)(i)(E)
  • Requires the provision of assistance and services regarding independent living skills begin at age 14.
    FCA §§1089 (c)(5)(vi), 1089(d)(2)(vii)(G); SSL §358-a(3)(f)
  • Requires a court to make specific findings, based upon the best interests and safety of a child, including determining whether placement should be terminated and the child returned home and if not, whether the permanency goal should be approved or modified, and whether reasonable efforts have been made to finalize the permanency plan.
  • Permits a court to provide a ldss with authority to discharge a child to his or her parent upon 10 days prior written notice to the court and the law guardian without further court hearing, where the permanency plan is return to parent.
    FCA §1089(d)(2)(viii)(C)

Aggravated Circumstances:

  • Permits the ldss to ask the court for permission to cease efforts to reunify a child with his or her parent where:
    • a child has been found to have been abused within five years after being returned home from a foster care placement due to a neglect finding;
    • an infant five days old or less has been abandoned; or
    • the parent(s) have stated under oath that they will not engage in services necessary to eliminate the risk of abuse or neglect and there are no barriers to engagement in services.
    FCA §1012(j); SSL §358-a(12) **

Termination of Parental Rights (TPR) Issues:

  • Eliminates the requirement that a child remain in foster care for a consecutive 12 months immediately preceding commencement of a TPR proceeding where a court has determined that the child was severely abused or repeatedly abused and reasonable efforts toward reunification of the child with his or her parent are no longer required and permits the hearing on the TPR to commence immediately.
    SSL §384-b(4)(e)
  • Permits commencement of a permanent neglect TPR proceeding where a child has been in foster care either at least one year or 15 out of the most recent 22 months.
    FCA §614(d); SSL§384-b(7)(a)
  • Requires the TPR petition to also be served on the respondent parent's attorney.
    SSL §384-b(3)(e)
  • Clarifies and limits suspended judgments in permanent neglect TPRs.
    FCA §§633

Freed Child/Adoption Issues:

  • Defines child freed for adoption to exclude "half-freed" children (children for whom only one parent's parental rights have been terminated).
    FCA §1087(b)
  • Provides enforcement procedures for post adoption contact agreements, based upon the best interests of the child.
    FCA §1055-a; DRL §112-b
  • Provides that failure to comply with the terms of a post adoption contact agreement cannot disrupt an adoption.
    FCA §1055-a
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