NY State Assembly Bill 2009-A5462

Assembly Bill A5462

Signed By Governor

2009-2010 Legislative Session

Relates to the guardianship and custody of destitute or dependent children who have a parent incarcerated or in a residential substance abuse treatment program

download bill text pdf

Archive: Last Bill Status - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 15, 2010	signed chap.113
Jun 04, 2010	delivered to governor
May 17, 2010	returned to assembly passed senate
Feb 22, 2010	3rd reading cal.71 substituted for s2233a
Jan 26, 2010	referred to finance delivered to senate passed assembly
Jan 06, 2010	ordered to third reading cal.382 returned to assembly died in senate
Jun 04, 2009	referred to finance delivered to senate passed assembly
Jun 03, 2009	ordered to third reading rules cal.55 rules report cal.55 reported
Jun 02, 2009	reported referred to rules
May 28, 2009	print number 5462a
May 28, 2009	amend (t) and recommit to social services
Feb 13, 2009	referred to social services

Votes

- May 17, 2010 - Floor Vote
  A5462
  
  32
  
  Aye
  
  29
  
  Nay
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: May 17, 2010
      
      aye (32)
      
      Adams
      
      Addabbo Jr.
      
      Aubertine
      
      Breslin
      
      Diaz
      
      Dilan
      
      Duane
      
      Espada
      
      Foley
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Klein
      
      Krueger
      
      Kruger
      
      Montgomery
      
      Onorato
      
      Oppenheimer
      
      Parker
      
      Peralta
      
      Perkins
      
      Sampson
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Smith
      
      Squadron
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      nay (29)
      
      Alesi
      
      Bonacic
      
      DeFrancisco
      
      Farley
      
      Flanagan
      
      Fuschillo
      
      Golden
      
      Griffo
      
      Hannon
      
      Johnson
      
      LaValle
      
      Lanza
      
      Larkin
      
      Leibell
      
      Libous
      
      Little
      
      Marcellino
      
      Maziarz
      
      McDonald
      
      Nozzolio
      
      Padavan
      
      Ranzenhofer
      
      Robach
      
      Saland
      
      Seward
      
      Skelos
      
      Volker
      
      Winner
      
      Young
      
      excused (1)
      
      Morahan

Bill Amendments

Original

A (Active)

2009-A5462 - Details

Laws Affected:: Amd §§384-b & 409-e, Soc Serv L

2009-A5462 - Summary

Relates to the guardianship and custody of destitute or dependent children who have a parent or parents incarcerated or in a residential substance abuse treatment program.

2009-A5462 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

    S. 2233                                                  A. 5462

                       2009-2010 Regular Sessions

                      S E N A T E - A S S E M B L Y

                            February 13, 2009
                               ___________

IN  SENATE  --  Introduced  by Sen. MONTGOMERY -- read twice and ordered
  printed, and when printed to be committed to the Committee on Children
  and Families

IN ASSEMBLY -- Introduced by M. of A. AUBRY -- read once and referred to
  the Committee on Social Services

AN ACT to amend the social services law, in relation to the guardianship
  and custody of destitute or dependent children who have  a  parent  or
  parents incarcerated or in a court ordered residential substance abuse
  treatment program

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subparagraph (i) of  paragraph  (l)  of  subdivision  3  of
section  384-b  of the social services law, as amended by chapter 460 of
the laws of 2006, is amended and a new subparagraph (v) is added to read
as follows:
  (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 author-
ized 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 INCARCERATION OF THE PARENT OR PARENTS, OR THE PARTICIPATION  OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04430-02-9

S. 2233                             2                            A. 5462

THE  PARENT  OR  PARENTS  IN  A  RESIDENTIAL  SUBSTANCE  ABUSE TREATMENT
PROGRAM, CONSTITUTES A SIGNIFICANT FACTOR IN THE  CHILD'S  PLACEMENT  IN
FOSTER  CARE  FOR  A  PERIOD  OF  FIFTEEN  OF THE MOST RECENT TWENTY-TWO
MONTHS,  PROVIDED  THAT  THE  AGENCY  HAS NOT DOCUMENTED A REASON WHY IT
WOULD OTHERWISE BE APPROPRIATE TO  FILE  A  PETITION  PURSUANT  TO  THIS
SECTION.
  (V) WHERE THE PARENT IS OR HAS BEEN INCARCERATED OR PARTICIPATING IN A
RESIDENTIAL  SUBSTANCE ABUSE TREATMENT PROGRAM, THE COURT SHALL CONSIDER
WHETHER THE AUTHORIZED AGENCY FULFILLED  ITS  RESPONSIBILITY  TO  DEMON-
STRATE  DILIGENT  EFFORTS,  AS  DEFINED  IN PARAGRAPH (F) OF SUBDIVISION
SEVEN OF THIS SECTION, UNLESS THE COURT HAS FOUND THAT SUCH EFFORTS  ARE
NOT  REQUIRED  AS  DEFINED IN PARAGRAPH (A) OF SUBDIVISION SEVEN OF THIS
SECTION. THE COURT MAY MAKE AN ORDER DIRECTING THE AUTHORIZED AGENCY  TO
UNDERTAKE  EFFORTS  AND TO GATHER INPUT FROM INDIVIDUALS IN A REASONABLE
POSITION TO AID IN ASSESSING WHETHER THE CONDITIONS SPECIFIED IN  CLAUSE
(D) OF SUBPARAGRAPH (I) OF THIS PARAGRAPH EXIST, SUCH THAT THE AGENCY IS
NOT REQUIRED TO FILE A PETITION FOR TERMINATION OF PARENTAL RIGHTS. SUCH
INDIVIDUALS  INCLUDE,  BUT  ARE NOT LIMITED TO, THE LAW GUARDIAN, CHILD,
PARENT, FAMILY MEMBERS OR OTHER INDIVIDUALS OF IMPORTANCE IN THE CHILD'S
LIFE, PARENT'S ATTORNEY, AND OTHER INDIVIDUALS PROVIDING SERVICES TO THE
PARENT, INCLUDING CORRECTIONAL, MENTAL HEALTH AND SUBSTANCE ABUSE TREAT-
MENT PROGRAM PERSONNEL.
  S 2. Paragraph (a) of subdivision 7 of section  384-b  of  the  social
services  law,  as  amended  by section 57 of part A of chapter 3 of the
laws of 2005, is amended to read as follows:
  (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 strength-
en  the  parental relationship when such efforts will not be detrimental
to the best interests of the child.  IN DETERMINING WHETHER A CHILD IS A
"PERMANENTLY NEGLECTED CHILD" AS DEFINED IN THIS  PARAGRAPH,  THE  COURT
MAY  CONSIDER  THE  SPECIAL  CIRCUMSTANCES  OF AN INCARCERATED PARENT OR
PARENTS, OR OF A  PARENT  OR  PARENTS  PARTICIPATING  IN  A  RESIDENTIAL
SUBSTANCE  ABUSE  TREATMENT PROGRAM.   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 thou-
sand 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,

S. 2233                             3                            A. 5462

such physical and financial ability of such parent may  be  presumed  by
the court.
  S  3.  Subparagraph  (i)  of paragraph (e) of subdivision 7 of section
384-b of the social services law, as amended by chapter 911 of the  laws
of 1983, is amended to read as follows:
  (i) The parent has failed for a period of six months to keep the agen-
cy 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
  S 4. Subparagraphs 4 and 5  of  paragraph  (f)  of  subdivision  7  of
section  384-b  of the social services law, as amended by chapter 911 of
the laws of 1983,  are amended and a new subparagraph 6 is added to read
as follows:
  (4) informing the parents at  appropriate  intervals  of  the  child's
progress, development and health; [and]
  (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 inter-
ests  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 transporta-
tion 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  RESIDEN-
TIAL  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  DEVEL-
OPMENT  OF A MEANINGFUL RELATIONSHIP BETWEEN THE PARENT AND CHILD. WHER-
EVER POSSIBLE, SUCH INFORMATION SHALL INCLUDE  TRANSITIONAL  AND  FAMILY
SUPPORT  SERVICES  LOCATED  IN  THE  COMMUNITY  TO WHICH AN INCARCERATED
PARENT SHALL BE RELEASED.
  S 5. The opening paragraph of  subdivision  2  and  subdivision  3  of
section  409-e  of the social services law, as amended by chapter 437 of
the laws of 2006, are amended to read as follows:
  Upon completion of any assessment provided for in subdivision  one  of
this  section, and not later than thirty days after placement of a child
in foster care pursuant to article three or seven of  the  family  court
act  or  not later than thirty days after a child is removed from his or
her home, the local social services district shall establish  or  update
and  maintain  a family service plan based on the assessment required by
subdivision one of this section. The plan shall be prepared in consulta-
tion with the child's parent or guardian, unless such person is unavail-

S. 2233                             4                            A. 5462

able or unwilling to participate, or such participation would be harmful
to the child, and with the child if the child is ten  years  of  age  or
older, and, where appropriate, with the child's siblings. Such consulta-
tion  shall  be  done  in person, OR WHERE THE PARENT IS INCARCERATED OR
RESIDING IN  A  RESIDENTIAL  SUBSTANCE  ABUSE  TREATMENT  PROGRAM,  SUCH
CONSULTATION  MAY  ALSO BE DONE THROUGH THE USE OF TECHNOLOGY, INCLUDING
BUT NOT LIMITED TO VIDEOCONFERENCE AND TELECONFERENCE TECHNOLOGY, unless
such a meeting is impracticable or would be harmful to the  child.    IF
THE  PARENT  IS INCARCERATED OR RESIDING IN A RESIDENTIAL DRUG TREATMENT
FACILITY, THE PLAN SHALL REFLECT THE SPECIAL CIRCUMSTANCES AND NEEDS  OF
THE CHILD AND THE FAMILY. The plan shall include at least the following:
  3.  The  plan  shall  be  reviewed and revised, in accordance with the
procedures and standards in subdivision two of this  section,  at  least
within  the  first  ninety  days  following the date the child was first
considered for placement in foster care, and,  if  the  child  has  been
placed  in  foster care pursuant to article three or seven of the family
court act or removed from his or her home, within the first ninety  days
following  the  date  of placement or removal. The plan shall be further
reviewed and revised not later than one hundred twenty  days  from  this
initial  review  and  at  least  every  six months thereafter; provided,
however, that if a sibling or half-sibling of the child  has  previously
been  considered  for placement or removed from the home, the plan shall
be further reviewed and revised on  the  schedule  established  for  the
family based on the earliest of those events. Such revisions shall indi-
cate  the  types,  dates and sources of services that have actually been
provided and an evaluation of the efficacy of  such  services,  and  any
necessary  or  desirable  revisions  in  goals  or planned services. The
review and revision of the plan shall be prepared in  consultation  with
the  child's  parent  or  guardian, unless such person is unavailable or
unwilling to participate, or such participation would be harmful to  the
child,  and  with  the  child if the child is ten years of age or older,
and, where appropriate, with the  child's  siblings.  Such  consultation
shall be done in person, OR WHERE THE PARENT IS INCARCERATED OR RESIDING
IN  A  RESIDENTIAL  SUBSTANCE ABUSE TREATMENT PROGRAM, SUCH CONSULTATION
MAY ALSO BE DONE THROUGH THE USE OF TECHNOLOGY, INCLUDING BUT NOT LIMIT-
ED TO VIDEOCONFERENCE AND TELECONFERENCE TECHNOLOGY, unless such a meet-
ing [is impracticable or] would be harmful to the child.
  S 6. This act shall take effect immediately.

co-Sponsors

multi-Sponsors

2009-A5462A (ACTIVE) - Details

Laws Affected:: Amd §§384-b & 409-e, Soc Serv L

2009-A5462A (ACTIVE) - Summary

Relates to the guardianship and custody of destitute or dependent children who have a parent or parents incarcerated or in a residential substance abuse treatment program.

2009-A5462A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A5462A

TITLE OF BILL:  An act to amend the social services law, in relation to
the guardianship and custody of destitute or dependent children who have
a parent or parents incarcerated or in a residential substance abuse
treatment program

PURPOSE OR GENERAL IDEA OF BILL: This legislation would allow a foster
care agency to delay the filing of a petition to terminate the parental
rights of a parent who is incarcerated or participating in a residential
substance abuse treatment program when such agency believes that filing
a termination petition is not in the best interests of the child.

SUMMARY OF SPECIFIC PROVISIONS: Section 1 of the bill amends the social
services law to allow a foster care agency to delay the filing of a
termination petition when the parent or parents are incarcerated or
participating in a residential substance abuse treatment program, or
when 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 care for 15 of the last 22 months, provided
that the parent maintains a meaningful role in the child's life, and the
agency has not documented a reason why it would otherwise be appropriate
to file.

Section 2 of the bill amends the social services law to allow the court
to consider the special circumstances of an incarcerated parent or a

parent in a residential substance abuse treatment program in determining
whether a child is a "permanently neglected child" as defined in the
social services law.

Section 3 of the bill amends the social services law to allow the court
to consider the circumstances of an incarcerated parent or a parent in a
residential substance abuse treatment program when determining whether
such parent has failed to keep the social service agency apprised of
their location.

Section 4 of the bill amends social services law to require social
services agencies to provide parents who are incarcerated or in a resi-
dential substance abuse treatment program with information about and
referrals to rehabilitative services available to such parent to aid in
the development of a meaningful relationship between such parent and the
child.

Section 5 of the bill amends the social service law to allow meetings to
create and review family service plans to be done through the use of
technology, including video-conference and teleconference technology,
where an in-person meeting is impracticable.

Section 6 is the effective date.

JUSTIFICATION:  New York law almost always requires social services
agencies to begin proceedings to terminate parental rights when a child

has been in foster care for fifteen of the most recent twenty-two
months. This law was established pursuant to the federal Adoption and
Safe Families Act (ASFA). ASFA's stated goals are laudable: to prevent
children from languishing in foster care and to find permanent homes
quickly for children who cannot be reunified with their families. In
practice, however, ASFA is often a blunt instrument that causes serious
damage.  Under ASFA, whenever a child has lived in foster care for 15 of
the most recent 22 months, the foster care agency is almost always
required to file a petition to terminate parental rights.

Parents in prison are required to fulfill the same responsibilities as
non-incarcerated parents. Unlike other mothers, however, mothers in
prison have limited family visiting opportunities; can only place
collect calls at certain times; are often restricted from participating
in foster care planning meetings; and have difficulty speaking with
their lawyers and being produced for family court. Notwithstanding these
obstacles, if an incarcerated mother fails to maintain consistent
contact with or find a non-foster care home for her child, the foster
care agency can file a petition to terminate her parental rights.

Considering that the median sentence for women in New York's prisons is
36 months, incarcerated mothers are at serious and disproportionate risk
of losing their parental rights. Because more children of incarcerated
mothers are placed in foster homes and agencies than children of incar-
cerated fathers, ASFA has a disproportionate impact on incarcerated
mothers.

Preliminary research suggests that ASFA's rigid requirements have had a
negative effect on incarcerated parents and their children. Termination
of parental rights proceedings involving incarcerated parents nationwide
increased by an estimated 108% from ASFA's enactment in 1997 to 2002. In
contrast, in the five years preceding the implementation of ASFA, the
number of termination proceedings involving incarcerated parents
increased by only 67"/o.

Many children would prefer to remain in foster care with the goal of
reunification than to "terminate" their ties to their parents.  Further-
more, thousands of children in New York State continue to languish in
foster care even after being' "freed" for adoption, Of the roughly
21,000 children who were freed for adoption in New York City from 2000
to 2004, about 14,000 were adopted and more than 7,000 were not. ASFA's
time-frames allow little space for case-specific determinations, despite
the unique circumstances of children with incarcerated parents.

This bill will make New York law more responsive to the unique circum-
stances of families separated by incarceration. Other states' ASFA laws
lessen ASFA's negative impact incarcerated parents and their children:
Nebraska and New Mexico exclude incarcerated parents from ASFA's time
frame if the only reason for filing a termination petition is because a
parent is incarcerated; Colorado makes an exception if a child has been
in foster care for longer than the prescribed 15-month period for

circumstances beyond the parent's control, such as incarceration for a
reasonable period of time.

Providing expanded discretion would empower foster care agencies to meet
the special challenges of families involved in the criminal justice
system. In appropriate circumstances, caseworkers would have more time
to work toward reunification or other permanent placements that do not
involve serving family bonds forever.

The bill contains protections to ensure appropriate use of this
discretion: before delaying, agencies must document that the parent
plays a meaningful role in his or her child's life and that the contin-
ued involvement of the parent in the child's life is in the child's best
interest. In addition, the bill does not limit agency discretion to file
termination proceedings either after 15 months if grounds exist or at
any point if the court has determined that the parent severely or
repeatedly abused the child. Rather, the bill would allow a caseworker
to avoid prematurely filing a termination before he or she has had an
adequate opportunity to evaluate the parent's efforts, the parent-child
bond, and the possibility for reunification or other non-adoptive perma-
nent placements.

This bill will amend New York's law to reflect the specific circum-
stances of incarcerated parents and their children, aid Family Courts in
making more informed decisions about children whose lives are impacted
by prison, and assist and guide foster care agencies in their efforts to
make child-centered and family-specific permanency decisions in cases
involving parental incarceration.

PRIOR LEGISLATIVE HISTORY: A8465 passed Assembly in 2008.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  Given that termi-
nation of parental rights proceedings are the most extensively litigated
phase of child protective cases, requiring dozens of hours of time from
agency attorneys, law guardians, agency personnel, foster care casework-
ers, judges, court personnel, and parents' attorneys, it is very likely
that this bill will save the state funds.

EFFECTIVE DATE: This legislation would take effect immediately.

2009-A5462A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

    S. 2233--A                                            A. 5462--A

                       2009-2010 Regular Sessions

                      S E N A T E - A S S E M B L Y

                            February 13, 2009
                               ___________

IN  SENATE -- Introduced by Sens. MONTGOMERY, HASSELL-THOMPSON, KRUEGER,
  MONSERRATE -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Children and Families -- reported favor-
  ably  from said committee and committed to the Committee on Finance --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

IN ASSEMBLY -- Introduced by M. of A. AUBRY, PERRY, CAMARA, ROSENTHAL --
  read  once and referred to the Committee on Social Services -- commit-
  tee discharged, bill amended, ordered reprinted as amended and  recom-
  mitted to said committee

AN ACT to amend the social services law, in relation to the guardianship
  and  custody  of  destitute or dependent children who have a parent or
  parents incarcerated or in a  residential  substance  abuse  treatment
  program

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subparagraph (i) of  paragraph  (l)  of  subdivision  3  of
section  384-b  of the social services law, as amended by chapter 460 of
the laws of 2006, is amended and a new subparagraph (v) is added to read
as follows:
  (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 author-
ized 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04430-06-9

S. 2233--A                          2                         A. 5462--A

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 RESI-
DENTIAL 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.
  (V)  FOR  THE PURPOSES OF CLAUSE (D) OF SUBPARAGRAPH (I) OF THIS PARA-
GRAPH, 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 TREAT-
MENT  PROGRAM  PERSONNEL  FOR  THE PURPOSE OF COMPLYING WITH THE SERVICE
PLAN AND REPAIRING, MAINTAINING OR BUILDING THE  PARENT-CHILD  RELATION-
SHIP; A POSITIVE RESPONSE BY THE PARENT TO THE AUTHORIZED AGENCY'S DILI-
GENT  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.
  S  2.  Paragraph  (a)  of subdivision 7 of section 384-b of the social
services law, as amended by section 57 of part A of  chapter  3  of  the
laws of 2005, is amended to read as follows:
  (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 strength-
en 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 TREAT-
MENT 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 LIMIT-
ED TO, LIMITATIONS PLACED ON FAMILY CONTACT AND  THE  UNAVAILABILITY  OF

S. 2233--A                          3                         A. 5462--A

SOCIAL  OR  REHABILITATIVE SERVICES TO AID IN THE DEVELOPMENT OF A MEAN-
INGFUL RELATIONSHIP BETWEEN THE PARENT AND HIS OR HER  CHILD,  THAT  MAY
IMPACT THE PARENT'S ABILITY TO SUBSTANTIALLY AND CONTINUOUSLY OR REPEAT-
EDLY  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 para-
graph (i) of subdivision (b) of section one  thousand  fifty-two,  para-
graph  (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.
  S 3. Subparagraph (i) of paragraph (e) of  subdivision  7  of  section
384-b  of the social services law, as amended by chapter 911 of the laws
of 1983, is amended to read as follows:
  (i) The parent has failed for a period of six months to keep the agen-
cy 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
  S  4.  Subparagraphs  4  and  5  of  paragraph (f) of subdivision 7 of
section 384-b of the social services law, as amended by chapter  911  of
the laws of 1983,  are amended and a new subparagraph 6 is added to read
as follows:
  (4)  informing  the  parents  at  appropriate intervals of the child's
progress, development and health; [and]
  (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 inter-
ests 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 transporta-
tion  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 RESIDEN-
TIAL 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 DEVEL-

S. 2233--A                          4                         A. 5462--A

OPMENT OF A MEANINGFUL RELATIONSHIP BETWEEN THE PARENT AND CHILD.  WHER-
EVER  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 TREAT-
MENT PROGRAM SHALL RETURN.
  S 5. The opening paragraph of  subdivision  2  and  subdivision  3  of
section  409-e  of the social services law, as amended by chapter 437 of
the laws of 2006, are amended to read as follows:
  Upon completion of any assessment provided for in subdivision  one  of
this  section, and not later than thirty days after placement of a child
in foster care pursuant to article three or seven of  the  family  court
act  or  not later than thirty days after a child is removed from his or
her home, the local social services district shall establish  or  update
and  maintain  a family service plan based on the assessment required by
subdivision one of this section. The plan shall be prepared in consulta-
tion with the child's parent or guardian, unless such person is unavail-
able or unwilling to participate, or such participation would be harmful
to the child, and with the child if the child is ten  years  of  age  or
older, and, where appropriate, with the child's siblings. Such consulta-
tion  shall be done in person, unless such a meeting is impracticable or
would be harmful to the child.   IF IT IS  IMPRACTICABLE  TO  HOLD  SUCH
CONSULTATION IN PERSON, SUCH CONSULTATION MAY BE DONE THROUGH THE USE OF
TECHNOLOGY, INCLUDING BUT NOT LIMITED TO, VIDEOCONFERENCING AND TELECON-
FERENCE  TECHNOLOGY.    IF  THE  PARENT IS INCARCERATED OR RESIDING IN A
RESIDENTIAL DRUG TREATMENT FACILITY, THE PLAN SHALL REFLECT THE  SPECIAL
CIRCUMSTANCES  AND  NEEDS  OF  THE  CHILD AND THE FAMILY. The plan shall
include at least the following:
  3. The plan shall be reviewed and  revised,  in  accordance  with  the
procedures  and  standards  in subdivision two of this section, at least
within the first ninety days following the  date  the  child  was  first
considered  for  placement  in  foster  care, and, if the child has been
placed in foster care pursuant to article three or seven of  the  family
court  act or removed from his or her home, within the first ninety days
following the date of placement or removal. The plan  shall  be  further
reviewed  and  revised  not later than one hundred twenty days from this
initial review and at  least  every  six  months  thereafter;  provided,
however,  that  if a sibling or half-sibling of the child has previously
been considered for placement or removed from the home, the  plan  shall
be  further  reviewed  and  revised  on the schedule established for the
family based on the earliest of those events. Such revisions shall indi-
cate the types, dates and sources of services that  have  actually  been
provided  and  an  evaluation  of the efficacy of such services, and any
necessary or desirable revisions  in  goals  or  planned  services.  The
review  and  revision of the plan shall be prepared in consultation with
the child's parent or guardian, unless such  person  is  unavailable  or
unwilling  to participate, or such participation would be harmful to the
child, and with the child if the child is ten years  of  age  or  older,
and,  where  appropriate,  with  the child's siblings. Such consultation
shall be done in person, unless such a meeting is impracticable or would
be harmful to the child.  IF IT IS IMPRACTICABLE TO HOLD SUCH  CONSULTA-
TION  IN  PERSON, SUCH CONSULTATION MAY BE DONE THROUGH THE USE OF TECH-
NOLOGY, INCLUDING BUT NOT LIMITED TO, VIDEOCONFERENCING AND  TELECONFER-
ENCE TECHNOLOGY.
  S 6. This act shall take effect immediately.

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Assembly Bill A5462

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