There is a newer version of the New York Consolidated Laws
2006 New York Code - Additional Powers And Duties Of Commissioners Of Public Welfare And Certain City Public Welfare Officers In Relation To Children.
§ 398. Additional powers and duties of commissioners of public welfare
and certain city public welfare officers in relation to children.
Commissioners of public welfare and city public welfare officers
responsible under the provisions of a special or local law for the
children hereinafter specified shall have powers and perform duties as
follows:
1. As to destitute children: Assume charge of and provide support for
any destitute child who cannot be properly cared for in his home.
2. As to neglected, abused or abandoned children:
(a) Investigate the alleged neglect, abuse or abandonment of a child,
offer protective social services to prevent injury to the child, to
safeguard his welfare, and to preserve and stabilize family life
wherever possible and, if necessary, bring the case before the family
court for adjudication and care for the child until the court acts in
the matter and, in the case of an abandoned child, shall promptly
petition the family court to obtain custody of such child.
(b) Receive and care for any child alleged to be neglected, abused or
abandoned who is temporarily placed in his care by the family court
pending adjudication by such court of the alleged neglect, abuse or
abandonment including the authority to establish, operate, maintain and
approve facilities for such purpose in accordance with the regulations
of the department; and receive and care for any neglected, abused or
abandoned child placed or discharged to his care by the family court.
(c) Any facility designated as of the effective date of this act shall
not be disapproved except after consultation with the designating
appellate division.
(d) The local social services department shall list all facilities
approved under this article for the temporary custody and care of
children remanded by the family court and shall file a copy of that list
periodically with the clerk of the family court in each county in the
judicial district in which the facility is located.
(e) Report to the local registrar of vital statistics of the district
in which the child was found the sex, color, approximate date of birth,
place of finding, and the name assigned to any child who may be found
whose parents are unknown, within ten days whenever possible after the
child is found, on a form prescribed therefor by the state commissioner
of health, and report the subsequent identification of any such child to
the state commissioner of health; provided, however, that in the city of
New York such form shall be prescribed by, and such report shall be made
to, the department of health.
(f) Report to the local criminal justice agency and to the statewide
central register for missing children as described in section eight
hundred thirty-seven-e of the executive law such information as required
on a form prescribed by the commissioner of the division of criminal
justice services within forty-eight hours after an abandoned child is
found.
3. As to delinquent children and persons in need of supervision:
(a) Investigate complaints as to alleged delinquency of a child.
(b) Bring such case of alleged delinquency when necessary before the
family court.
(c) Receive within fifteen days from the order of placement as a
public charge any delinquent child committed or placed or person in need
of supervision placed in his or her care by the family court provided,
however, that the commissioner of the social services district with whom
the child is placed may apply to the state commissioner or his or her
designee for approval of an additional fifteen days, upon written
documentation to the office of children and family services that the
youth is in need of specialized treatment or placement and the diligent
efforts by the commissioner of social services to locate an appropriate
placement.
4. As to mentally disabled and physically handicapped children:
(a) Obtain admission to state and other suitable schools, hospitals,
other institutions, or care in their own homes or in family free or
boarding homes or in agency boarding homes or group homes for such
children in accordance with the provisions of the mental hygiene law,
education law and acts relating to the family court.
(b) Maintain supervision over such disabled or physically handicapped
children as are not in institutions, hospitals or schools or under the
jurisdiction of the family court.
5. As to children born out of wedlock:
(a) Provide care in a family free or boarding home, in an agency
boarding home or group home or in an institution for any child born out
of wedlock and for his mother as for any other person in need of public
assistance and care during pregnancy and during and after delivery, when
in the judgment of such social services official needed care cannot be
provided in the mother's own home. However, nothing in this section or
elsewhere in this chapter contained shall be construed to make any such
child or his mother ineligible for such care away from home, regardless
of ability or liability to pay therefor; provided, however, that except
as hereinafter provided, it shall rest in the discretion of the social
services official, in view of all the facts and circumstances present in
each case, to determine whether or not to require such mother, or any
other person or persons liable by law to contribute to the support
thereof, to pay all or any part of such cost, pursuant to the provisions
of this section or any other section of this chapter. Any inconsistent
provision of law notwithstanding, the acceptance by a private authorized
adoption agency of an absolute surrender of a child born out of wedlock
from the mother of such child shall relieve her from any and all
liability for the support of such child. When in the judgment of a
social services official needed care cannot be provided in the home of a
minor pregnant with an out of wedlock child, and he has made a
determination pursuant to subdivision one of section one hundred
thirty-two of this chapter not to make an investigation of the
circumstances of such minor and not to require support from persons
liable therefor, the authorization of such social services official of
necessary medical care for such minor shall have the same force and
effect as a consent executed by a parent or guardian of such minor.
(b) Institute proceedings to establish paternity and secure the
support and education of any child born out of wedlock or make a
compromise with the father of such child, in accordance with the
provisions of law, relating to children born out of wedlock.
(c) Hold and disburse the money received from such a compromise or pay
it to the mother if she gives security for the support of the child.
(d) When practicable, require the mother to contribute to the support
of the child.
6. As to all foregoing classes of children:
(a) Investigate the family circumstances of each child reported to him
as destitute, neglected, abused, delinquent, disabled or physically
handicapped in order to determine what assistance and care, supervision
or treatment, if any, such child requires.
(b) Provide for expert mental and physical examination of any child
whom he has reason to suspect of mental or physical disability or
disease and pay for such examination from public funds, if necessary.
(c) Provide necessary medical or surgical care in a suitable hospital,
sanatorium, preventorium or other institution or in his own home for any
child needing such care and pay for such care from public funds, if
necessary. However, in the case of a child or minor who is eligible to
receive care as medical assistance for needy persons pursuant to title
eleven of article five of this chapter, such care shall be provided
pursuant to the provisions of that title.
(d) Ascertain the financial ability of the parents of children who
become public charges and collect toward the expense of such child's
care such sum as the parents are able to pay.
(e) Collect from parents whose children have been discharged to his
care by the family court such sums as they are ordered to pay for the
maintenance of such children and report any failure to comply with such
order to such court.
(f) When in his judgment it is advisable for the welfare of the child,
accept the surrender of a child by an instrument in writing in
accordance with the provisions of this chapter. Any inconsistent
provision of law notwithstanding, the acceptance by the social services
official of a surrender of a child born out of wedlock from the mother
or father of such child shall relieve the parent executing such
surrender from any and all liability for the support of such child.
(g) (1) Place children in suitable instances in family homes, agency
boarding homes or group homes or institutions under the proper
safeguards, either directly or through an authorized agency, except
that, direct placements in agency boarding homes or group homes may be
made by the social services official only if the department shall have
authorized him or her to operate such homes in accordance with the
provisions of section three hundred seventy-four-b of this chapter and
only if suitable care is not otherwise available through an authorized
agency under the control of persons of the same religious faith as the
child. Where such official places a child in an agency boarding home,
group home or institution, either directly or through an authorized
agency, the official shall certify in writing to the department that
such placement was made because it offers the most appropriate and least
restrictive level of care and is more appropriate than a family foster
home placement or that such placement is necessary because there are no
qualified foster families available to the district. If the number of
placements in agency boarding homes, group homes or institutions because
of a lack of foster parents so warrants in any district, the department
shall assist such district to recruit and train foster parents.
Placements shall be made only in institutions located in this state or
in such institutions located in an adjoining state as are maintained by
a corporation organized under the laws of this state and having
authority to maintain an institution for the care of children. However,
all placements shall be made in institutions visited, inspected and
supervised in accordance with title three of article seven of this
chapter and conducted in conformity with the applicable regulations of
the supervising state agency in accordance with title three of article
seven of this chapter. With the approval of the department, a social
services district may place a child in its care and custody or its
custody and guardianship in a federally funded job corps program and may
receive reimbursement for the approved costs of appropriate program
administration and supervision pursuant to a plan developed by the
department and approved by the director of the budget.
(2) A social services district may place a child in its care and
custody or its custody and guardianship in a home or facility operated
or licensed by any office of the department of mental hygiene, subject
to the relevant provisions of the mental hygiene law and the admission
criteria of the facility. The director of the budget may authorize such
transfers of appropriations under the provisions of section fifty of the
state finance law as may be necessary to secure federal reimbursement
for such placements.
(3) (i) Effective sixty days after the enactment of this subparagraph,
there is hereby established within a social services district with a
population in excess of two million a two-year demonstration project
which affords authorized agencies with which foster children are placed
enhanced administrative flexibility. Pursuant to such demonstration
project, an authorized agency with which the social services district
has placed a child shall have the authority to:
(A) give all necessary consents to the discharge of the child from
foster care when such authorized agency has submitted a written request
for approval of such discharge to the social services official and the
social services official has not disapproved such discharge within
thirty days of receiving such request;
(B) change a goal for the child when such authorized agency has
submitted a written request for approval of such change of goal to the
social services official and the social services official has not
disapproved such goal within thirty days of receiving such request;
(C) commence a proceeding to free the child for adoption when such
authorized agency has submitted a written request for approval of the
commencement of such proceeding to the social services official, if the
social services official has not disapproved such commencement within
thirty days of receiving such request, in which case such a request
shall be deemed approved; and
(D) consent to the adoption of a child whose custody and guardianship,
or of a child where such child's parents are both deceased, or where one
parent is deceased and the other parent is not entitled to notice
pursuant to sections one hundred eleven and one hundred eleven-a of the
domestic relations law, and whose care and custody, has been transferred
to a social services district and who has been placed by the social
services official with the authorized agency when the authorized agency
has submitted a written request for approval to consent to the adoption,
if the social services district has not disapproved the request to
consent to adoption within sixty days after its submission, in which
case such request shall be deemed approved and the authorized agency may
give all necessary consent to the adoption of the child.
(ii) Nothing herein shall result in the transfer of care and custody
or custody and guardianship of a child from the social services official
to the authorized agency.
(iii) Within three months of the conclusion of the demonstration
project, such social services district shall issue a report to the
department regarding the effectiveness of the demonstration project.
Such report shall include recommendations for possible statutory and
regulatory amendments in relation to the administration of foster care.
(4) A social services district may place a child in its care and
custody or its custody and guardianship in a family home certified by
the division for youth, which shall not include a group home. Such
placements shall be subject to the relevant provisions of this chapter,
the executive law and the admission criteria of the home.
(h) Supervise children who have been cared for away from their
families until such children become twenty-one years of age or until
they are discharged to their own parents, relatives within the third
degree or guardians, or adopted, provided, however, that in the case of
a child who is developmentally disabled as such term is defined in
section 1.03 of the mental hygiene law, emotionally disturbed or
physically handicapped, and who is receiving care in a group home,
agency boarding home or any child care facility operated by an
authorized agency with a capacity of thirteen or more children, and who
is in receipt of educational services and under the care and custody of
a local department of social services, the commissioner of the office of
children and family services shall allow such child who reaches the age
of twenty-one during the period commencing on the first day of September
and ending on the thirtieth day of June to be entitled to continue in
such program until the thirtieth day of June or until the termination of
the school year, whichever shall first occur.
(i) Provide care in an institution, agency boarding home, or family
free or boarding home for any destitute minor between sixteen and
eighteen years of age who cannot be properly cared for in his own home,
either directly or through authorized agencies, except that, direct
placements in agency boarding homes may be made by the social services
official only if the department shall have authorized him to operate
such homes in accordance with the provisions of section three hundred
seventy-four-b of this chapter and only if suitable care is not
otherwise available through an authorized agency under the control of
persons of the same religious faith as the child. Such care may be
continued after the eighteenth birthday of the minor and until he is
discharged from care or becomes twenty-one years of age.
(j) Permit children and minors who are being cared for away from their
own homes as public charges to retain the maximum amount of their
monthly earned income for future identifiable needs in accordance with
the regulations of the department and consistent with the federal law
applicable to the treatment of income and resources under the aid to
families with dependent children program.
(k) In accordance with regulations of the department, provide suitable
vocational training through any institution licensed or approved by the
state education department, for any minor in his care who demonstrates
to his satisfaction the possession of talent, aptitude and ability
necessary to benefit therefrom, provided such minor could not otherwise
obtain such training. Expenditures may be made for tuition, books,
supplies, and all other necessary items to enable such minor to obtain
such training.
(l) In accordance with regulations of the department, provide
maintenance in a summer camp for children and minors who are being cared
for away from their own homes as public charges, when in his judgment it
is advisable for the welfare of such children and minors.
(n) When it is in the best interest of the child, place a child who is
being returned to foster care, following an interruption in care, or a
child who is being returned to a family boarding home following
placement in a foster care facility with the foster care parents with
whom that child was last placed, notwithstanding the provisions of
subdivisions three and four of section three hundred seventy-eight of
this chapter. When it is in the best interests of the minor parent and
the minor parent's child or children, place the minor parent who is
being returned to foster care following an interruption in care, and the
minor parent's child or children or the minor parent who is being
returned to a family boarding home following placement in a foster care
facility and the minor parent's child or children with the foster care
parents with whom the minor parent was last placed, notwithstanding the
provisions of subdivisions three and four of section three hundred
seventy-eight of this chapter.
(o) Compliance with a court order enforcing visitation rights of a
non-custodial parent or grandparent pursuant to part eight of article
ten of the family court act, subdivision ten of section three hundred
fifty-eight-a or paragraph (d) of subdivision two of section three
hundred eighty-four-a of this chapter, and responsibility for the return
of such child after visitation so ordered.
* (p) Provide respite care for children who have special needs as
described in subdivision fifteen of this section including, but not
limited to, those children who are diagnosed as having AIDS or HIV
related disease. For the purposes of this paragraph, respite care shall
mean the provision of temporary care and supervision of children on
behalf of a foster parent of a child with such special needs. Such care
may be provided by a foster family boarding home, an agency operated
boarding home, a group home, an institution or by an authorized staff
member of such programs or other provider approved by the local district
based on the individual circumstances of the caregiver and the needs of
the child, for up to three consecutive weeks but no more than seven
weeks in a calendar year. The department shall, by regulation, establish
standards for respite care and training for the providers of such care.
* NB There are 2 par (p)'s
* (p) Consistent with the provisions of this chapter, provide
necessary care, services and supervision including medical care, to a
child placed in foster care pursuant to subparagraph (ii) of paragraph
(a) of subdivision two of section ten hundred seventeen of the family
court act, and reimbursement therefor to relatives of such child as
approved foster parents with whom such child is residing.
* NB There are 2 par. (p)'s
7. Notwithstanding any inconsistent provisions of law, no city forming
part of a county public welfare district may hereafter assume any of the
powers, duties and responsibilties mentioned in this section. However,
this subdivision shall not be deemed or construed to prohibit a public
welfare officer of a city forming part of a county public welfare
district from exercising and performing on behalf of the county
commissioner of public welfare, pursuant to the provisions of title
three-a of article three, any of the powers and duties mentioned in this
section. A city forming part of a county public welfare district which
heretofore assumed or upon which was heretofore imposed the
responsibility for providing any or all of the assistance, care and
service mentioned in this section, shall hereafter continue to have such
responsibility, provided, however, that the continuance of such
responsibility shall be consistent with the powers, duties and
responsibilities of such city under and pursuant to the provisions of
title three-a of article three.
8. A public welfare official who is authorized to place children or
minors in homes or institutions pursuant to provisions of this section
shall have the power to place children or minors in a public institution
for children.
9. A social services official shall have the same authority as a peace
officer to remove a child from his home without an order of the family
court and without the consent of the parent or person responsible for
such child's care if the child is in such condition that his continuing
in the home presents an imminent danger to the child's life or health.
When a child is removed from his home pursuant to the provisions of this
subdivision, the social services official shall promptly inform the
parent or person responsible for such child's care and the family court
of his action.
10. Any provision of this chapter or any other law notwithstanding,
where a foster child for whom a social services official has been making
foster care payments is in attendance at a college or university away
from his foster family boarding home, group home, agency boarding home
or institution, a social services official may make foster payments, not
to exceed the amount which would have been paid to a foster parent on
behalf of said child had the child been cared for in a foster family
boarding home, to such college or university in lieu of payment to the
foster parents or authorized agency, for the purpose of room and board,
if not otherwise provided.
11. In the case of a child who is adjudicated a person in need of
supervision or a juvenile delinquent and is placed by the family court
with the division for youth and who is placed by the division for youth
with an authorized agency pursuant to court order, the social services
official shall make expenditures in accordance with the regulations of
the department for the care and maintenance of such child during the
term of such placement subject to state reimbursement pursuant to this
title, or article nineteen-G of the executive law in applicable cases.
12. A social services official shall be permitted to place persons
adjudicated in need of supervision or delinquent, and in cities having a
population of one million or more alleged persons to be in need of
supervision and persons adjudicated in need of supervision in detention
pending transfer to a placement, in the same foster care facilities as
are providing care to destitute, neglected, abused or abandoned
children. Such foster care facilities shall not provide care to a youth
in the care of a social services official as a convicted juvenile
offender.
13. (a) In the case of a child with a handicapping condition who is
placed, pursuant to this chapter, in a foster care agency or institution
located outside the state, and who attains the age of eighteen, the
social services official shall:
(i) determine whether such child will need services after the age of
twenty-one, and, if such need exists;
(ii) assess the nature of the services required;
(iii) notify the parent or guardian of such child's need for services;
and
(iv) upon the written consent of the parent or guardian, and
notwithstanding section three hundred seventy-two of this article,
submit a report on the child's need for services after age twenty-one to
the department for planning purposes.
(b) Upon the written consent of the parent or guardian, the department
shall submit the report received pursuant to paragraph (a) of this
subdivision to the council on children and families.
(c) When a child's report is submitted to the council on children and
families pursuant to this subdivision, the council shall cooperate with
adult service providers, such as the department of social services, the
office of mental retardation and developmental disabilities, the office
of mental health and the office of vocational rehabilitation of the
education department in planning and coordinating such child's return to
New York state for adult services. The council shall arrange with the
appropriate state agency for the development of a recommendation of all
appropriate in-state programs operated, licensed, certified or
authorized by such agency and which may be available when such child
attains the age of twenty-one. Such recommendation of all programs shall
be made available to the parent or guardian of such child at least six
months before such child attains the age of twenty-one. All records,
reports and information received, compiled or maintained by the council
pursuant to this subdivision shall be subject to the confidentiality
requirements of the department.
14. (a) In the case of a child who is developmentally disabled as such
term is defined in section 1.03 of the mental hygiene law, emotionally
disturbed or physically handicapped and who is receiving care in a group
home, agency boarding home, or any child care facility operated by an
authorized agency with a capacity of thirteen or more children, who
attains the age of eighteen and who will continue in such care after the
age of eighteen, or who is placed in such care after the age of
eighteen, the social services official shall notify the parent or
guardian of such child that such care will terminate when such child
attains the age of twenty-one provided, however, that any such child in
receipt of educational services and under the care and custody of a
local department of social services who reaches the age of twenty-one
during the period commencing on the first day of September and ending on
the thirtieth day of June shall be entitled to continue in such program
until the thirtieth day of June or until the termination of the school
year, whichever shall first occur. Such notice shall be in writing and
shall describe in detail the parent's or guardian's opportunity to
consent to having such child's name and other information forwarded in a
report to the commissioner of mental health, commissioner of mental
retardation and developmental disabilities, commissioner of education or
commissioner of the office of children and family services or their
designees for the purpose of determining whether such child will likely
need services after the age of twenty-one and, if so, recommending
possible adult services.
(b) Upon the written consent of the parent or guardian, and
notwithstanding section three hundred seventy-two of this article, the
social services official shall submit a report on such child's possible
need for services after age twenty-one to the commissioner of mental
health, commissioner of mental retardation and developmental
disabilities, commissioner of social services or commissioner of
education or their designees for the development of a recommendation
pursuant to section 7.37 or 13.37 of the mental hygiene law, section
three hundred ninety-eight-c of this article or subdivision ten of
section four thousand four hundred three of the education law. The
social services official shall determine which commissioner shall
receive the report by considering the child's handicapping condition. If
the social services official determines that the child will need adult
services from the department and such social services official is the
commissioner's designee pursuant to this subdivision and section three
hundred ninety-eight-c of this article, such social services official
shall perform the services described in section three hundred
ninety-eight-c of this article.
(c) A copy of such report shall also be submitted to the department at
the same time that such report is submitted to the commissioner of
mental health, commissioner of mental retardation and developmental
disabilities or commissioner of education or their designees.
(d) When the social services official is notified by the commissioner
who received the report that such state agency is not responsible for
determining and recommending adult services for the child, the social
services official shall forward the report to another commissioner; or,
if the social services official determines that there exists a dispute
between state agencies as to which state agency has the responsibility
for determining and recommending adult services, the social services
official may forward the report to the council on children and families
for a resolution of such dispute.
(e) The social services official shall prepare and submit an annual
report to the department on October first, nineteen hundred eighty-four
and thereafter on or before October first of each year. Such annual
report shall contain the number of cases submitted to each commissioner
pursuant to paragraph (b) of this subdivision, the type and severity of
the handicapping condition of each such case, the number of notices
received which deny responsibility for determining and recommending
adult services, and other information necessary for the department and
the council on children and families to monitor the need for adult
services, but shall not contain personally identifying information. The
department shall forward copies of such annual reports to the council on
children and families. All information received by the council on
children and families pursuant to this paragraph shall be subject to the
confidentiality requirements of the department.
15. (a) In the case of a child who has special needs due to a high
level of disturbed behavior, emotional disturbance or physical or health
needs as determined by the district in accordance with the rules and
regulations of the department and who has been placed with a therapeutic
foster parent, the social services official shall make available
periodic respite care services for such parent, necessary consultation
services between the therapeutic foster care parent and professionals
familiar with the special needs of the child and such other support
services as are reasonably necessary to prevent placement of the child
in a group home, an agency operated boarding home or an institution.
(b) Prior to placement of a child who has been determined to have
special needs with a therapeutic foster parent, the social services
official shall require such foster parent to complete an approved
training program. The department shall not provide enhanced
reimbursement for such placement unless the social services official
certifies that the foster parent has successfully completed an approved
training program.
(c) A social services official shall require that the family services
plan developed pursuant to section four hundred nine-e of this article
for a child placed with a therapeutic foster parent include a treatment
plan prepared in consultation with the therapeutic foster parent and
approved by the social services official.
16. Notwithstanding any provision of law to the contrary, with regard
to the placement of all categories of foster children, the social
services official or the voluntary authorized agency under contract with
such official must consider giving preference to placement of a child
with an adult relative over a non-related caregiver, provided that the
relative caregiver meets relevant child welfare standards.
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