2006 New York Code - Hearing And Preliminary Orders After Filing Of Petition.

 
    §  1027.  Hearing and preliminary orders after filing of petition. (a)
  (i) In any case where the child has been removed without court order  or
  where  there  has  been  a  hearing  pursuant  to  section  one thousand
  twenty-two of this part at which the respondent was not present, or  was
  not  represented  by  counsel  and  did  not  waive  his or her right to
  counsel, the family court shall hold a hearing. Such  hearing  shall  be
  held  no later than the next court day after the filing of a petition to
  determine whether the child's interests  require  protection,  including
  whether  the  child  should  be  returned  to the parent or other person
  legally responsible, pending a final  order  of  disposition  and  shall
  continue  on  successive  court  days, if necessary, until a decision is
  made by the court.
    (ii) In any such case where the child has  been  removed,  any  person
  originating  a  proceeding under this article shall, or the law guardian
  may apply for, or the court on its own motion may order,  a  hearing  at
  any  time  after  the petition is filed to determine whether the child's
  interests require protection pending a final order of disposition.  Such
  hearing must be scheduled for no later than the next court day after the
  application for such hearing has been made.
    (iii)  In  any  case  under this article in which a child has not been
  removed from his or her parent or other person legally responsible,  any
  person  originating  a proceeding under this article or the law guardian
  may apply for, or the court on its own motion may order,  a  hearing  at
  any  time  after  the petition is filed to determine whether the child's
  interests require protection, including  whether  the  child  should  be
  removed  from  his  or  her  parent or other person legally responsible,
  pending a final order of disposition. Such hearing must be scheduled for
  no later than the next court day after the application for such  hearing
  has been made.
    (iv)  Notice  of  a  hearing shall be provided pursuant to section one
  thousand twenty-three of this part.
    (b) (i) Upon  such  hearing,  if  the  court  finds  that  removal  is
  necessary to avoid imminent risk to the child's life or health, it shall
  remove  or  continue the removal of the child. If the court makes such a
  determination that removal is necessary,  the  court  shall  immediately
  inquire  as  to  the  status  of  any  efforts  made by the local social
  services district to  locate  relatives  of  the  child,  including  any
  non-respondent  parent  and all of the child's grandparents, as required
  pursuant to section one thousand seventeen of this  article.  The  court
  shall also inquire as to whether the child, if over the age of five, has
  identified  any relatives who play or have played a significant positive
  role in his or her  life  and  whether  any  respondent  parent  or  any
  non-respondent  parent  has  identified  any  suitable  relatives.  Such
  inquiry shall include 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. Upon completion of  such  inquiry,
  the court shall remand or place the child:
    (A)  with  the local commissioner of social services and the court 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;
    (B)  to  a  place  approved  for  such  purpose by the social services
  district; or
    (C) in the custody of a relative or suitable  person  other  than  the
  respondent.
    (ii)  Such  order  shall  state the court's findings which support the
  necessity of such removal, whether the respondent  was  present  at  the
  hearing  and,  if  not,  what  notice  the  respondent  was given of the
  hearing, and, where a pre-petition removal has  occurred,  whether  such
  removal  took  place  pursuant  to  section one thousand twenty-one, one
  thousand twenty-two or one thousand twenty-four of  this  part.  If  the
  parent  or  other  person  legally  responsible  for the child's care is
  physically present at the  time  the  child  is  removed,  and  has  not
  previously  been  served  with the summons and petition, the summons and
  petition shall be served upon such parent or person coincident with such
  removal. If such parent or person is not physically present at the  time
  the  child  is  removed,  service  of  the summons and petition shall be
  governed  by  section  one  thousand  thirty-six  of  this  article.  In
  determining  whether  removal  or  continuing  the removal of a 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  held  under  subdivision  (a) of this section to
  prevent or eliminate the need for removal of the  child  from  the  home
  and,  if the child was removed from his or her home prior to the date of
  the  hearing  held  under  subdivision  (a)  of  this   section,   where
  appropriate,  that  reasonable efforts were made to make it possible for
  the child to safely return home.
    (iii) 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.
    (iv)  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  such  efforts  were  appropriate under the circumstances, the
  court shall order the child protective agency to provide or arrange  for
  the provision of appropriate services or assistance to the child and the
  child's  family  pursuant  to  section  one  thousand  fifteen-a  or  as
  enumerated in subdivision (c) of section one thousand twenty-two of this
  article, notwithstanding the fact that a petition has been filed.
    (v) The court shall also consider and determine whether imminent  risk
  to the child would be eliminated by the issuance of a temporary order of
  protection,  pursuant  to section one thousand twenty-nine of this part,
  directing the removal of a person or persons from the child's residence.
    (c) Upon such hearing, the court may, for good cause  shown,  issue  a
  preliminary  order of protection which may contain any of the provisions
  authorized on the making of an order of  protection  under  section  one
  thousand fifty-six of this act.
    (d)  Upon  such  hearing, the court may, for good cause shown, release
  the child  to  the  custody  of  his  parent  or  other  person  legally
  responsible  for  his  care,  pending  a  final order of disposition, in
  accord with section one thousand fifty-four.
    (e) Upon such hearing, the court may authorize a physician or hospital
  to provide  medical  or  surgical  procedures  if  such  procedures  are
  necessary to safeguard the child's life or health.


    (f)  If  the  court  grants  or  denies  a preliminary order requested
  pursuant to this section, it shall state the grounds for such decision.
    (g)  In  all  cases  involving abuse the court shall order, and in all
  cases involving neglect the court may order, an examination of the child
  pursuant to section two hundred fifty-one of this act or by a  physician
  appointed  or  designated  for the purpose by the court. As part of such
  examination, the physician shall arrange  to  have  colored  photographs
  taken  as soon as practical of the areas of trauma visible on such child
  and may, if  indicated,  arrange  to  have  a  radiological  examination
  performed  on  the  child.  The  physician,  on  the  completion of such
  examination, shall forward the results thereof together with  the  color
  photographs  to  the  court  ordering  such  examination.  The court may
  dispense with such examination in those cases which  were  commenced  on
  the  basis  of  a  physical  examination  by a physician. Unless colored
  photographs have already been taken or unless  there  are  no  areas  of
  visible  trauma,  the  court  shall  arrange to have colored photographs
  taken even if the examination is dispensed with.
    (h) At the conclusion of a hearing where it has been determined that a
  child should be removed from his or her parent or other  person  legally
  responsible,  the  court  shall  set  a  date  certain  for  an  initial
  permanency hearing pursuant to  paragraph  two  of  subdivision  (a)  of
  section  one thousand eighty-nine of this act. The date certain shall be
  included in the written order issued pursuant to subdivision (b) of this
  section  and  shall  set  forth  the  date  certain  scheduled  for  the
  permanency hearing. A copy of such order shall be provided to the parent
  or other person legally responsible for the child's care.