There is a newer version of the New York Consolidated Laws
2012 New York Consolidated Laws
SOS - Social Services
Article 6 - CHILDREN
Title 1 - (371 - 392) CARE AND PROTECTION OF CHILDREN
384-B - Guardianship and custody of destitute or dependent children; commitment by court order; modification of commitment and restoration of parental rights.
NY Soc Serv L § 384-B (2012) What's This?
§ 384-b. Guardianship and custody of destitute or dependent children;
commitment by court order; modification of commitment and restoration of
parental rights.
1. Statement of legislative findings and intent.
(a) The legislature recognizes that the health and safety of children
is of paramount importance. To the extent it is consistent with the
health and safety of the child, the legislature further hereby finds
that:
(i) it is desirable for children to grow up with a normal family life
in a permanent home and that such circumstance offers the best
opportunity for children to develop and thrive;
(ii) it is generally desirable for the child to remain with or be
returned to the birth parent because the child's need for a normal
family life will usually best be met in the home of its birth parent,
and that parents are entitled to bring up their own children unless the
best interests of the child would be thereby endangered;
(iii) the state's first obligation is to help the family with services
to prevent its break-up or to reunite it if the child has already left
home; and
(iv) when it is clear that the birth parent cannot or will not provide
a normal family home for the child and when continued foster care is not
an appropriate plan for the child, then a permanent alternative home
should be sought for the child.
(b) The legislature further finds that many children who have been
placed in foster care experience unnecessarily protracted stays in such
care without being adopted or returned to their parents or other
custodians. Such unnecessary stays may deprive these children of
positive, nurturing family relationships and have deleterious effects on
their development into responsible, productive citizens. The legislature
further finds that provision of a timely procedure for the termination,
in appropriate cases, of the rights of the birth parents could reduce
such unnecessary stays.
It is the intent of the legislature in enacting this section to
provide procedures not only assuring that the rights of the birth parent
are protected, but also, where positive, nurturing parent-child
relationships no longer exist, furthering the best interests, needs, and
rights of the child by terminating parental rights and freeing the child
for adoption.
2. For the purposes of this section, (a) "child" shall mean a person
under the age of eighteen years; and, (b) "parent" shall include an
incarcerated parent unless otherwise qualified.
3. (a) The guardianship of the person and the custody of a destitute
or dependent child may be committed to an authorized agency, or to a
foster parent authorized pursuant to section one thousand eighty-nine of
the family court act to institute a proceeding under this section, or to
a relative with care and custody of the child, by order of a surrogate
or judge of the family court, as hereinafter provided. Where such
guardianship and custody is committed to a foster parent or to a
relative with care and custody of the child, the family court or
surrogate's court shall retain continuing jurisdiction over the parties
and the child and may, upon its own motion or the motion of any party,
revoke, modify or extend its order, if the foster parent or relative
fails to institute a proceeding for the adoption of the child within six
months after the entry of the order committing the guardianship and
custody of the child to such foster parent or relative. Where the foster
parent or relative institutes a proceeding for the adoption of the child
and the adoption petition is finally denied or dismissed, the court
which committed the guardianship and custody of the child to the foster
parent or relative shall revoke the order of commitment. Where the court
revokes an order committing the guardianship and custody of a child to a
foster parent or relative, it shall commit the guardianship and custody
of the child to an authorized agency.
(b) A proceeding under this section may be originated by an authorized
agency or by a foster parent authorized to do so pursuant to section one
thousand eighty-nine of the family court act or by a relative with care
and custody of the child or, if an authorized agency ordered by the
court to originate a proceeding under this section fails to do so within
the time fixed by the court, by the child's attorney or guardian ad
litem on the court's direction.
(c) Where a child was placed or continued in foster care pursuant to
article ten, ten-A or ten-C of the family court act or section three
hundred fifty-eight-a of this chapter, a proceeding under this section
shall be originated in the family court in the county in which the
proceeding pursuant to article ten, ten-A or ten-C of the family court
act or section three hundred fifty-eight-a of this chapter was last
heard and shall be assigned, wherever practicable, to the judge who last
heard such proceeding. Where multiple proceedings are commenced under
this section concerning a child and one or more siblings or
half-siblings of such child, placed or continued in foster care with the
same commissioner pursuant to section one thousand fifty-five, one
thousand eighty-nine or one thousand ninety-five of the family court
act, all of such proceedings may be commenced jointly in the family
court in any county which last heard a proceeding under article ten,
ten-A or ten-C of the family court act regarding any of the children who
are the subjects of the proceedings under this section. In such
instances, the case shall be assigned, wherever practicable, to the
judge who last presided over such proceeding. In any other case, a
proceeding under this section, including a proceeding brought in the
surrogate's court, shall be originated in the county where either of the
parents of the child reside at the time of the filing of the petition,
if known, or, if such residence is not known, in the county in which the
authorized agency has an office for the regular conduct of business or
in which the child resides at the time of the initiation of the
proceeding. To the extent possible, the court shall, when appointing an
attorney for the child, appoint an attorney who has previously
represented the child.
(c-1) Before hearing a petition under this section, the court in which
the termination of parental rights petition has been filed shall
ascertain whether the child is under the jurisdiction of a family court
pursuant to a placement in a child protective or foster care proceeding
or continuation in out-of-home care pursuant to a permanency hearing
and, if so, which court exercised jurisdiction over the most recent
proceeding. If the court determines that the child is under the
jurisdiction of a different family court, the court in which the
termination of parental rights petition was filed shall stay its
proceeding for not more than thirty days and shall communicate with the
court that exercised jurisdiction over the most recent proceeding. The
communication shall be recorded or summarized on the record by the court
in which the termination of parental rights petition was filed. Both
courts shall notify the parties and child's attorney, if any, in their
respective proceedings and shall give them an opportunity to present
facts and legal argument or to participate in the communication prior to
the issuance of a decision on jurisdiction. The court that exercised
jurisdiction over the most recent proceeding shall determine whether it
will accept or decline jurisdiction over the termination of parental
rights petition. This determination of jurisdiction shall be
incorporated into an order regarding jurisdiction that shall be issued
by the court in which the termination of parental rights petition was
filed within thirty days of such filing. If the court that exercised
jurisdiction over the most recent proceeding determines that it should
exercise jurisdiction over the termination of parental rights petition,
the order shall require that the petition shall be transferred to that
court forthwith but in no event more than thirty-five days after the
filing of the petition. The petition shall be assigned, wherever
practicable, to the judge who heard the most recent proceeding. If the
court that exercised jurisdiction over the most recent proceeding
declines to exercise jurisdiction over the adoption petition, the court
in which the termination of parental rights petition was filed shall
issue an order incorporating that determination and shall proceed
forthwith.
(d) The family court shall have exclusive, original jurisdiction over
any proceeding brought upon grounds specified in paragraph (c), (d) or
(e) of subdivision four of this section, and the family court and
surrogate's court shall have concurrent, original jurisdiction over any
proceeding brought upon grounds specified in paragraph (a) or (b) of
subdivision four of this section, except as provided in paragraphs (c)
and (c-1) of this subdivision.
(e) A proceeding under this section is originated by a petition on
notice served upon the child's parent or parents, the attorney for the
child's parent or parents and upon such other persons as the court may
in its discretion prescribe. Such notice shall inform the parents and
such other persons that the proceeding may result in an order freeing
the child for adoption without the consent of or notice to the parents
or such other persons. Such notice also shall inform the parents and
such other persons of their right to the assistance of counsel,
including any right they may have to have counsel assigned by the court
in any case where they are financially unable to obtain counsel. The
petition shall set forth the names and last known addresses of all
persons required to be given notice of the proceeding, pursuant to this
section and section three hundred eighty-four-c of this title, and there
shall be shown by the petition or by affidavit or other proof
satisfactory to the court that there are no persons other than those set
forth in the petition who are entitled to notice pursuant to the
provisions of this section or of section three hundred eighty-four-c of
this title. When the proceeding is initiated in family court service of
the petition and other process shall be made in accordance with the
provisions of section six hundred seventeen of the family court act, and
when the proceeding is initiated in surrogate's court, service shall be
made in accordance with the provisions of section three hundred seven of
the surrogate's court procedure act. When the proceeding is initiated on
the grounds of abandonment of a child less than one year of age at the
time of the transfer of the care and custody of such child to a local
social services official, the court shall take judicial notice of
efforts to locate the child's parents or other known relatives or other
persons legally responsible pursuant to paragraph (ii) of subdivision
(b) of section one thousand fifty-five of the family court act.
(f) In any proceeding under this section in which the surrogate's
court has exercised jurisdiction, the provisions of the surrogate's
court procedure act shall apply to the extent that they do not conflict
with the specific provisions of this section. In any proceeding under
this section in which the family court has exercised jurisdiction, the
provisions of articles one, two and eleven of the family court act shall
apply to the extent that they do not conflict with the specific
provisions of this section. In any proceeding under this section, the
provisions and limitations of article thirty-one of the civil practice
law and rules shall apply to the extent that they do not conflict with
the specific provisions of this section. In determining any motion for a
protective order, the court shall consider the need of the party for the
discovery to assist in the preparation of the case and any potential
harm to the child from the discovery. The court shall set a schedule for
discovery to avoid unnecessary delay. Any proceeding originated in
family court upon the ground specified in paragraph (d) of subdivision
four of this section shall be conducted in accordance with the
provisions of part one of article six of the family court act.
(g) (i) An order committing the guardianship and custody of a child
pursuant to this section shall be granted only upon a finding that one
or more of the grounds specified in subdivision four of this section are
based upon clear and convincing proof.
(ii) Where a proceeding has been properly commenced under this section
by the filing of a petition before the eighteenth birthday of a child,
an order committing the guardianship and custody of a child pursuant to
this section upon a finding under subdivision four of this section shall
be granted after the eighteenth birthday of a child where the child
consents to such disposition.
(h) In any proceeding brought upon a ground set forth in paragraph (c)
of subdivision four, neither the privilege attaching to confidential
communications between husband and wife, as set forth in section
forty-five hundred two of the civil practice law and rules, nor the
physician-patient and related privileges, as set forth in section
forty-five hundred four of the civil practice law and rules, nor the
psychologist-client privilege, as set forth in section forty-five
hundred seven of the civil practice law and rules, nor the social
worker-client privilege, as set forth in section forty-five hundred
eight of the civil practice law and rules, shall be a ground for
excluding evidence which otherwise would be admissible.
(i) In a proceeding instituted by an authorized agency pursuant to the
provisions of this section, proof of the likelihood that the child will
be placed for adoption shall not be required in determining whether the
best interests of the child would be promoted by the commitment of the
guardianship and custody of the child to an authorized agency.
(j) The order and the papers upon which it was granted in a proceeding
under this section shall be filed in the court, and a certified copy of
such order shall also be filed in the office of the county clerk of the
county in which such court is located, there to be recorded and to be
inspected or examined in the same manner as a surrender instrument,
pursuant to the provisions of section three hundred eighty-four of this
chapter.
(k) Where the child is over fourteen years of age, the court may, in
its discretion, consider the wishes of the child in determining whether
the best interests of the child would be promoted by the commitment of
the guardianship and custody of the child.
(l) (i) Notwithstanding any other law to the contrary, whenever: the
child shall have been in foster care for fifteen months of the most
recent twenty-two months; or a court of competent jurisdiction has
determined the child to be an abandoned child; or the parent has been
convicted of a crime as set forth in subdivision eight of this section,
the authorized agency having care of the child shall file a petition
pursuant to this section unless based on a case by case determination:
(A) the child is being cared for by a relative or relatives; or (B) the
agency has documented in the most recent case plan, a copy of which has
been made available to the court, a compelling reason for determining
that the filing of a petition would not be in the best interest of the
child; or (C) the agency has not provided to the parent or parents of
the child such services as it deems necessary for the safe return of the
child to the parent or parents, unless such services are not legally
required; or (D) the parent or parents are incarcerated, or
participating in a residential substance abuse treatment program, or the
prior incarceration or participation of a parent or parents in a
residential substance abuse treatment program is a significant factor in
why the child has been in foster care for fifteen of the last twenty-two
months, provided that the parent maintains a meaningful role in the
child's life based on the criteria set forth in subparagraph (v) of this
paragraph and the agency has not documented a reason why it would
otherwise be appropriate to file a petition pursuant to this section.
(ii) For the purposes of this section, a compelling reason whereby a
social services official is not required to file a petition for
termination of parental rights in accordance with subparagraph (i) of
this paragraph includes, but is not limited to, where:
(A) the child was placed into foster care pursuant to article three or
seven of the family court act and a review of the specific facts and
circumstances of the child's placement demonstrate that the appropriate
permanency goal for the child is either (1) return to his or her parent
or guardian or (2) discharge to independent living;
(B) the child has a permanency goal other than adoption;
(C) the child is fourteen years of age or older and will not consent
to his or her adoption;
(D) there are insufficient grounds for filing a petition to terminate
parental rights; or
(E) the child is the subject of a pending disposition under article
ten of the family court act, except where such child is already in the
custody of the commissioner of social services as a result of a
proceeding other than the pending article ten proceeding, and a review
of the specific facts and circumstances of the child's placement
demonstrate that the appropriate permanency goal for the child is
discharge to his or her parent or guardian.
(iii) For the purposes of this paragraph, the date of the child's
entry into foster care is the earlier of sixty days after the date on
which the child was removed from the home or the date the child was
found by a court to be an abused or neglected child pursuant to article
ten of the family court act.
(iv) In the event that the social services official or authorized
agency having care and custody of the child fails to file a petition to
terminate parental rights within sixty days of the time required by this
section, or within ninety days of a court direction to file a proceeding
not otherwise required by this section, such proceeding may be filed by
the foster parent of the child without further court order or by the
attorney for the child on the direction of the court. In the event of
such filing the social services official or authorized agency having
care and custody of the child shall be served with notice of the
proceeding and shall join the petition.
(v) For the purposes of clause (D) of subparagraph (i) of this
paragraph, an assessment of whether a parent maintains a meaningful role
in his or her child's life shall be based on evidence, which may include
the following: a parent's expressions or acts manifesting concern for
the child, such as letters, telephone calls, visits, and other forms of
communication with the child; efforts by the parent to communicate and
work with the authorized agency, law guardian, foster parent, the court,
and the parent's attorney or other individuals providing services to the
parent, including correctional, mental health and substance abuse
treatment program personnel for the purpose of complying with the
service plan and repairing, maintaining or building the parent-child
relationship; a positive response by the parent to the authorized
agency's diligent efforts as defined in paragraph (f) of subdivision
seven of this section; and whether the continued involvement of the
parent in the child's life is in the child's best interest. In assessing
whether a parent maintains a meaningful role in his or her child's life,
the authorized agency shall gather input from individuals and agencies
in a reasonable position to help make this assessment, including but not
limited to, the authorized agency, law guardian, parent, child, foster
parent or other individuals of importance in the child's life, and
parent's attorney or other individuals providing services to the parent,
including correctional, mental health and substance abuse treatment
program personnel. The court may make an order directing the authorized
agency to undertake further steps to aid in completing its assessment.
4. An order committing the guardianship and custody of a child
pursuant to this section shall be granted only upon one or more of the
following grounds:
(a) Both parents of the child are dead, and no guardian of the person
of such child has been lawfully appointed; or
(b) The parent or parents, whose consent to the adoption of the child
would otherwise be required in accordance with section one hundred
eleven of the domestic relations law, abandoned such child for the
period of six months immediately prior to the date on which the petition
is filed in the court; or
(c) The parent or parents, whose consent to the adoption of the child
would otherwise be required in accordance with section one hundred
eleven of the domestic relations law, are presently and for the
foreseeable future unable, by reason of mental illness or mental
retardation, to provide proper and adequate care for a child who has
been in the care of an authorized agency for the period of one year
immediately prior to the date on which the petition is filed in the
court; or
(d) The child is a permanently neglected child; or
(e) The parent or parents, whose consent to the adoption of the child
would otherwise be required in accordance with section one hundred
eleven of the domestic relations law, severely or repeatedly abused such
child. Where a court has determined that reasonable efforts to reunite
the child with his or her parent are not required, pursuant to the
family court act or this chapter, a petition to terminate parental
rights on the ground of severe abuse as set forth in subparagraph (iii)
of paragraph (a) of subdivision eight of this section may be filed
immediately upon such determination.
5. (a) For the purposes of this section, a child is "abandoned" by his
parent if such parent evinces an intent to forego his or her parental
rights and obligations as manifested by his or her failure to visit the
child and communicate with the child or agency, although able to do so
and not prevented or discouraged from doing so by the agency. In the
absence of evidence to the contrary, such ability to visit and
communicate shall be presumed.
(b) The subjective intent of the parent, whether expressed or
otherwise, unsupported by evidence of the foregoing parental acts
manifesting such intent, shall not preclude a determination that such
parent has abandoned his or her child. In making such determination, the
court shall not require a showing of diligent efforts, if any, by an
authorized agency to encourage the parent to perform the acts specified
in paragraph (a) of this subdivision.
6. (a) For the purposes of this section, "mental illness" means an
affliction with a mental disease or mental condition which is manifested
by a disorder or disturbance in behavior, feeling, thinking or judgment
to such an extent that if such child were placed in or returned to the
custody of the parent, the child would be in danger of becoming a
neglected child as defined in the family court act.
(b) For the purposes of this section, "mental retardation" means
subaverage intellectual functioning which originates during the
developmental period and is associated with impairment in adaptive
behavior to such an extent that if such child were placed in or returned
to the custody of the parent, the child would be in danger of becoming a
neglected child as defined in the family court act.
(c) The legal sufficiency of the proof in a proceeding upon the ground
set forth in paragraph (c) of subdivision four of this section shall not
be determined until the judge has taken the testimony of a psychologist,
or psychiatrist, in accordance with paragraph (e) of this subdivision.
(d) A determination or order upon a ground set forth in paragraph (c)
of subdivision four shall in no way affect any other right, or
constitute an adjudication of the legal status of the parent.
(e) In every proceeding upon a ground set forth in paragraph (c) of
subdivision four the judge shall order the parent to be examined by, and
shall take the testimony of, a qualified psychiatrist or a psychologist
licensed pursuant to article one hundred fifty-three of the education
law as defined in section 730.10 of the criminal procedure law in the
case of a parent alleged to be mentally ill or retarded, such
psychologist or psychiatrist to be appointed by the court pursuant to
section thirty-five of the judiciary law. The parent and the authorized
agency shall have the right to submit other psychiatric, psychological
or medical evidence. If the parent refuses to submit to such
court-ordered examination, or if the parent renders himself unavailable
therefor whether before or after the initiation of a proceeding under
this section, by departing from the state or by concealing himself
therein, the appointed psychologist or psychiatrist, upon the basis of
other available information, including, but not limited to, agency,
hospital or clinic records, may testify without an examination of such
parent, provided that such other information affords a reasonable basis
for his opinion.
7. (a) For the purposes of this section, "permanently neglected
child" shall mean a child who is in the care of an authorized agency and
whose parent or custodian has failed for a period of either at least one
year or fifteen out of the most recent twenty-two months following the
date such child came into the care of an authorized agency substantially
and continuously or repeatedly to maintain contact with or plan for the
future of the child, although physically and financially able to do so,
notwithstanding the agency's diligent efforts to encourage and
strengthen the parental relationship when such efforts will not be
detrimental to the best interests of the child. The court shall consider
the special circumstances of an incarcerated parent or parents, or of a
parent or parents participating in a residential substance abuse
treatment program, when determining whether a child is a "permanently
neglected child" as defined in this paragraph. In such cases, the court
also shall consider the particular constraints, including but not
limited to, limitations placed on family contact and the unavailability
of social or rehabilitative services to aid in the development of a
meaningful relationship between the parent and his or her child, that
may impact the parent's ability to substantially and continuously or
repeatedly maintain contact with his or her child and to plan for the
future of his or her child as defined in paragraph (c) of this
subdivision. Where a court has previously determined in accordance with
paragraph (b) of subdivision three of section three hundred
fifty-eight-a of this chapter or section one thousand thirty-nine-b,
subparagraph (A) of paragraph (i) of subdivision (b) of section one
thousand fifty-two, paragraph (b) of subdivision two of section seven
hundred fifty-four or paragraph (c) of subdivision two of section 352.2
of the family court act that reasonable efforts to make it possible for
the child to return safely to his or her home are not required, the
agency shall not be required to demonstrate diligent efforts as defined
in this section. In the event that the parent defaults after due notice
of a proceeding to determine such neglect, such physical and financial
ability of such parent may be presumed by the court.
(b) For the purposes of paragraph (a) of this subdivision, evidence of
insubstantial or infrequent contacts by a parent with his or her child
shall not, of itself, be sufficient as a matter of law to preclude a
determination that such child is a permanently neglected child. A visit
or communication by a parent with the child which is of such character
as to overtly demonstrate a lack of affectionate and concerned
parenthood shall not be deemed a substantial contact.
(c) As used in paragraph (a) of this subdivision, "to plan for the
future of the child" shall mean to take such steps as may be necessary
to provide an adequate, stable home and parental care for the child
within a period of time which is reasonable under the financial
circumstances available to the parent. The plan must be realistic and
feasible, and good faith effort shall not, of itself, be determinative.
In determining whether a parent has planned for the future of the child,
the court may consider the failure of the parent to utilize medical,
psychiatric, psychological and other social and rehabilitative services
and material resources made available to such parent.
(d) For the purposes of this subdivision:
(i) A parent shall not be deemed unable to maintain contact with or
plan for the future of the child by reason of such parent's use of drugs
or alcohol, except while the parent is actually hospitalized or
institutionalized therefor; and
(ii) The time during which a parent is actually hospitalized or
institutionalized shall not interrupt, but shall not be part of, a
period of failure to maintain contact with or plan for the future of a
child.
(e) Notwithstanding the provisions of paragraph (a) of this
subdivision, evidence of diligent efforts by an agency to encourage and
strengthen the parental relationship shall not be required when:
(i) The parent has failed for a period of six months to keep the
agency apprised of his or her location, provided that the court may
consider the particular delays or barriers an incarcerated parent or
parents, or a parent or parents participating in a residential substance
abuse treatment program, may experience in keeping the agency apprised
of his or her location; or
(ii) An incarcerated parent has failed on more than one occasion while
incarcerated to cooperate with an authorized agency in its efforts to
assist such parent to plan for the future of the child, as such phrase
is defined in paragraph (c) of this subdivision, or in such agency's
efforts to plan and arrange visits with the child as described in
subparagraph five of paragraph (f) of this subdivision.
(f) As used in this subdivision, "diligent efforts" shall mean
reasonable attempts by an authorized agency to assist, develop and
encourage a meaningful relationship between the parent and child,
including but not limited to:
(1) consultation and cooperation with the parents in developing a plan
for appropriate services to the child and his family;
(2) making suitable arrangements for the parents to visit the child
except that with respect to an incarcerated parent, arrangements for the
incarcerated parent to visit the child outside the correctional facility
shall not be required unless reasonably feasible and in the best
interest of the child;
(3) provision of services and other assistance to the parents, except
incarcerated parents, so that problems preventing the discharge of the
child from care may be resolved or ameliorated;
(4) informing the parents at appropriate intervals of the child's
progress, development and health;
(5) making suitable arrangements with a correctional facility and
other appropriate persons for an incarcerated parent to visit the child
within the correctional facility, if such visiting is in the best
interests of the child. When no visitation between child and
incarcerated parent has been arranged for or permitted by the authorized
agency because such visitation is determined not to be in the best
interest of the child, then no permanent neglect proceeding under this
subdivision shall be initiated on the basis of the lack of such
visitation. Such arrangements shall include, but shall not be limited
to, the transportation of the child to the correctional facility, and
providing or suggesting social or rehabilitative services to resolve or
correct the problems other than incarceration itself which impair the
incarcerated parent's ability to maintain contact with the child. When
the parent is incarcerated in a correctional facility located outside
the state, the provisions of this subparagraph shall be construed to
require that an authorized agency make such arrangements with the
correctional facility only if reasonably feasible and permissible in
accordance with the laws and regulations applicable to such facility;
and
(6) providing information which the authorized agency shall obtain
from the office of children and family services, outlining the legal
rights and obligations of a parent who is incarcerated or in a
residential substance abuse treatment program whose child is in custody
of an authorized agency, and on social or rehabilitative services
available in the community, including family visiting services, to aid
in the development of a meaningful relationship between the parent and
child. Wherever possible, such information shall include transitional
and family support services located in the community to which an
incarcerated parent or parent participating in a residential substance
abuse treatment program shall return.
8. (a) For the purposes of this section a child is "severely abused"
by his or her parent if (i) the child has been found to be an abused
child as a result of reckless or intentional acts of the parent
committed under circumstances evincing a depraved indifference to human
life, which result in serious physical injury to the child as defined in
subdivision ten of section 10.00 of the penal law; or
(ii) the child has been found to be an abused child, as defined in
paragraph (iii) of subdivision (e) of section ten hundred twelve of the
family court act, as a result of such parent's acts; provided, however,
the respondent must have committed or knowingly allowed to be committed
a felony sex offense as defined in sections 130.25, 130.30, 130.35,
130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75 and 130.80 of the
penal law and, for the purposes of this section the corroboration
requirements contained in the penal law shall not apply to proceedings
under this section; or
(iii) (A) the parent of such child has been convicted of murder in the
first degree as defined in section 125.27, murder in the second degree
as defined in section 125.25, manslaughter in the first degree as
defined in section 125.20, or manslaughter in the second degree as
defined in section 125.15, and the victim of any such crime was another
child of the parent or another child for whose care such parent is or
has been legally responsible as defined in subdivision (g) of section
one thousand twelve of the family court act, or another parent of the
child, unless the convicted parent was a victim of physical, sexual or
psychological abuse by the decedent parent and such abuse was a factor
in causing the homicide; or 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 another child for whose care
such parent is or has been legally responsible as defined in subdivision
(g) of section one thousand twelve of the family court act, or another
parent of the child, unless the convicted parent was a victim of
physical, sexual or psychological abuse by the decedent parent and such
abuse was a factor in causing the attempted homicide; (B) the parent of
such child 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 or another child for whose care such parent
is or has been legally responsible; (C) 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 victim of any such crime was
the child or another child of the parent or another child for whose care
such parent is or has been legally responsible; or 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 another
child for whose care such parent is or has been legally responsible; or
(D) the parent of such child has been convicted under the law in any
other jurisdiction of an offense which includes all of the essential
elements of any crime specified in clause (A), (B) or (C) of this
subparagraph; and
(iv) the agency has made diligent efforts to encourage and strengthen
the parental relationship, including efforts to rehabilitate the
respondent, when such efforts will not be detrimental to the best
interests of the child, and such efforts have been unsuccessful and are
unlikely to be successful in the foreseeable future. Where a court has
previously determined in accordance with this chapter or the family
court act that reasonable efforts to make it possible for the child to
return safely to his or her home are not required, the agency shall not
be required to demonstrate diligent efforts as set forth in this
section.
(b) For the purposes of this section a child is "repeatedly abused" by
his or her parent if:
(i) the child has been found to be an abused child, (A) as defined in
paragraph (i) of subdivision (e) of section ten hundred twelve of the
family court act, as a result of such parent's acts; or (B) as defined
in paragraph (iii) of subdivision (e) of section ten hundred twelve of
the family court act, as a result of such parent's acts; provided,
however, the respondent must have committed or knowingly allowed to be
committed a felony sex offense as defined in sections 130.25, 130.30,
130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75 and
130.80 of the penal law; and
(ii) (A) the child or another child for whose care such parent is or
has been legally responsible has been previously found, within the five
years immediately preceding the initiation of the proceeding in which
such abuse is found, to be an abused child, as defined in paragraph (i)
or (iii) of subdivision (e) of section ten hundred twelve of the family
court act, as a result of such parent's acts; provided, however, in the
case of a finding of abuse as defined in paragraph (iii) of subdivision
(e) of section ten hundred twelve of the family court act the respondent
must have committed or knowingly allowed to be committed a felony sex
offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45,
130.50, 130.65, 130.67, 130.70, 130.75 and 130.80 of the penal law, or
(B) the parent has been convicted of a crime under section 130.25,
130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75
or 130.80 of the penal law against the child, a sibling of the child or
another child for whose care such parent is or has been legally
responsible, within the five year period immediately preceding the
initiation of the proceeding in which abuse is found; and
(iii) the agency has made diligent efforts, to encourage and
strengthen the parental relationship, including efforts to rehabilitate
the respondent, when such efforts will not be detrimental to the best
interests of the child, and such efforts have been unsuccessful and are
unlikely to be successful in the foreseeable future. Where a court has
previously determined in accordance with this chapter or the family
court act that reasonable efforts to make it possible for the child to
return safely to his or her home are not required, the agency shall not
be required to demonstrate diligent efforts as set forth in this
section.
(c) Notwithstanding any other provision of law, the requirements of
paragraph (g) of subdivision three of this section shall be satisfied if
one of the findings of abuse pursuant to subparagraph (i) or (ii) of
paragraph (b) of this subdivision is found to be based on clear and
convincing evidence.
(d) A determination by the court in accordance with article ten of the
family court act based upon clear and convincing evidence that the child
was a severely abused child as defined in subparagraphs (i) and (ii) of
paragraph (a) of this subdivision shall establish that the child was a
severely abused child in accordance with this section. Such a
determination by the court in accordance with article ten of the family
court act based upon a fair preponderance of evidence shall be
admissible in any proceeding commenced in accordance with this section.
(e) A determination by the court in accordance with article ten of the
family court act based upon clear and convincing evidence that a child
was abused as defined in paragraph (i) of subdivision (e) of section ten
hundred twelve of the family court act, as a result of such parent's
acts; or (B) as defined in paragraph (iii) of subdivision (e) of section
ten hundred twelve of the family court act, as a result of such parent's
acts; provided, however, the respondent must have committed or knowingly
allowed to be committed a felony sex offense as defined in sections
130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70,
130.75 and 130.80 of the penal law shall establish that the child was an
abused child for the purpose of a determination as required by
subparagraph (i) or (ii) of paragraph (b) of this subdivision. Such a
determination by the court in accordance with article ten of the family
court act based upon a fair preponderance of evidence shall be
admissible in any proceeding commenced in accordance with this section.
(f) Upon a finding pursuant to paragraph (a) or (b) of this
subdivision that the child has been severely or repeatedly abused by his
or her parent, the court shall enter an order of disposition either (i)
committing the guardianship and custody of the child, pursuant to this
section, or (ii) suspending judgment in accordance with section six
hundred thirty-three of the family court act, upon a further finding,
based on clear and convincing, competent, material and relevant evidence
introduced in a dispositional hearing, that the best interests of the
child require such commitment or suspension of judgment. Where the
disposition ordered is the commitment of guardianship and custody
pursuant to this section, an initial freed child permanency hearing
shall be completed pursuant to section one thousand eighty-nine of the
family court act.
9. Nothing in this section shall be construed to terminate, upon
commitment of the guardianship and custody of a child to an authorized
agency or foster parent, any rights and benefits, including but not
limited to rights relating to inheritance, succession, social security,
insurance and wrongful death action claims, possessed by or available to
the child pursuant to any other provision of law. Notwithstanding any
other provision of law, a child committed to the custody and
guardianship of an authorized agency pursuant to this section shall be
deemed to continue in foster care until such time as an adoption or
another planned permanent living arrangement is finalized. Where the
disposition ordered is the commitment of guardianship and custody
pursuant to this section, an initial freed child permanency hearing
shall be held pursuant to section one thousand eighty-nine of the family
court act.
10. Upon the court's order transferring custody and guardianship to
the commissioner, the attorney for the petitioning authorized agency
shall promptly serve upon the persons who have been approved by such
agency as the child's adoptive parents, notice of entry of such order
and advise such persons that an adoption proceeding may be commenced. In
accordance with the regulations of the department, the authorized agency
shall advise such persons of the procedures necessary for adoption of
the child. The authorized agency shall cooperate with such persons in
the provision of necessary documentation.
11. Upon the entry of an order committing the guardianship and custody
of a child pursuant to this section, the court shall inquire whether any
foster parent or parents with whom the child resides, or any relative of
the child, or other person, seeks to adopt such child. If such person or
persons do seek to adopt such child, such person or persons may submit,
and the court shall accept, all such petitions for the adoption of the
child, together with an adoption home study, if any, completed by an
authorized agency or disinterested person as such term is defined in
subdivision three of section one hundred sixteen of the domestic
relations law. The court shall thereafter establish a schedule for
completion of other inquiries and investigations necessary to complete
review of the adoption of the child and shall immediately set a schedule
for completion of the adoption.
12. If the court determines to commit the custody and guardianship of
the child pursuant to this section, or if the court determines to
suspend judgement pursuant to section six hundred thirty-three of the
family court act, the court in its order shall determine if there is any
parent to whom notice of an adoption would be required pursuant to
section one hundred eleven-a of the domestic relations law. In its order
the court shall indicate whether such person or persons were given
notice of the proceeding and whether such person or persons appeared.
Such determinations shall be conclusive in all subsequent proceedings
relating to the custody, guardianship or adoption of the child.
13. A petition to modify a disposition of commitment of guardianship
and custody in order to restore parental rights may be brought in
accordance with part one-A of article six of the family court act where
the conditions enumerated in section six hundred thirty-five of such part have been met.
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