S T A T E O F N E W Y O R K
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8524
2009-2010 Regular Sessions
I N A S S E M B L Y
May 27, 2009
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Introduced by M. of A. SCARBOROUGH, WEINSTEIN, ESPAILLAT -- (at request
of the Office of Court Administration) -- read once and referred to
the Committee on Judiciary
AN ACT to amend the family court act and the social services law, in
relation to restoration of parental rights
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Article 6 of the family court act is amended by adding a
new part 1-A to read as follows:
PART 1-A
MODIFICATION OF DISPOSITION; RESTORATION OF PARENTAL RIGHTS
SECTION 635. PETITION TO RESTORE PARENTAL RIGHTS.
636. ORIGINATING A PROCEEDING TO RESTORE PARENTAL RIGHTS;
SERVICE AND VENUE.
637. BURDEN OF PROOF, DISPOSITION AND FINDINGS.
S 635. PETITION TO RESTORE PARENTAL RIGHTS. A PETITION TO MODIFY A
DISPOSITION ORDERED PURSUANT TO SUBDIVISION (C) OF SECTION SIX HUNDRED
THIRTY-ONE OF THIS ARTICLE OR PARAGRAPH (A) OF SUBDIVISION THREE OF
SECTION THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW IN ORDER
TO RESTORE PARENTAL RIGHTS MAY BE FILED IN ACCORDANCE WITH THIS PART
WHERE THE FOLLOWING CONDITIONS ARE MET:
(A) THE ORDER COMMITTING GUARDIANSHIP AND CUSTODY OF THE CHILD HAD
BEEN ISSUED TWO OR MORE YEARS PRIOR TO THE DATE OF FILING OF THE PETI-
TION UNDER THIS SECTION; AND
(B) THE ORDER COMMITTING GUARDIANSHIP AND CUSTODY OF THE CHILD HAD
BEEN BASED UPON AN ADJUDICATION UPON GROUNDS ENUMERATED IN PARAGRAPH
(B), (C) OR (D) OF SUBDIVISION FOUR OF SECTION THREE HUNDRED
EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW; AND
(C) THE PETITION ALLEGES THAT THE PETITIONER OR PETITIONERS AND THE
RESPONDENT OR RESPONDENTS IN THE PROCEEDING IN WHICH GUARDIANSHIP AND
CUSTODY HAD BEEN COMMITTED CONSENT TO THE RELIEF REQUESTED IN THE PETI-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10367-03-9
A. 8524 2
TION OR THAT THE PETITIONER OR PETITIONERS WITHHELD CONSENT TO THE
RELIEF REQUESTED IN THE PETITION WITHOUT GOOD CAUSE; AND
(D) THE CHILD IS FOURTEEN YEARS OF AGE OR OLDER, REMAINS UNDER THE
JURISDICTION OF THE FAMILY COURT, HAS NOT BEEN ADOPTED, DOES NOT HAVE A
PERMANENCY GOAL OF ADOPTION AND CONSENTS TO THE RELIEF REQUESTED IN THE
PETITION.
S 636. ORIGINATING A PROCEEDING TO RESTORE PARENTAL RIGHTS; SERVICE
AND VENUE. (A) A PROCEEDING TO MODIFY THE DISPOSITION IN ORDER TO
RESTORE PARENTAL RIGHTS MAY BE ORIGINATED BY THE FILING OF A PETITION BY
THE CHILD'S ATTORNEY, BY THE AGENCY OR INDIVIDUAL TO WHOM GUARDIANSHIP
AND CUSTODY OF THE CHILD HAD BEEN COMMITTED OR BY THE RESPONDENT OR
RESPONDENTS IN THE TERMINATION OF PARENTAL RIGHTS PROCEEDING. THE PETI-
TION SHALL BE SERVED UPON THE CHILD'S ATTORNEY, THE AGENCY OR INDIVIDUAL
TO WHOM GUARDIANSHIP AND CUSTODY OF THE CHILD HAD BEEN COMMITTED AND THE
RESPONDENT OR RESPONDENTS IN THE TERMINATION OF PARENTAL RIGHTS PROCEED-
ING, AS WELL AS THE ATTORNEY OR ATTORNEYS WHO REPRESENTED THE RESPONDENT
OR RESPONDENTS IN THE TERMINATION OF PARENTAL RIGHTS PROCEEDING. A
CERTIFIED COPY OF THE ORDER COMMITTING GUARDIANSHIP AND CUSTODY SHALL BE
ATTACHED TO THE PETITION.
(B) UPON THE FILING OF A PETITION UNDER THIS PART, THE COURT MAY CAUSE
A SUMMONS TO BE ISSUED TO THE CHILD, THE AGENCY OR INDIVIDUAL TO WHOM
GUARDIANSHIP AND CUSTODY OF THE CHILD HAD BEEN COMMITTED AND THE
RESPONDENT OR RESPONDENTS IN THE TERMINATION OF PARENTAL RIGHTS PROCEED-
ING. THE SUMMONS SHALL BE SERVED IN ACCORDANCE WITH SECTION SIX HUNDRED
SEVENTEEN OF THIS ARTICLE, ACCOMPANIED BY A COPY OF THE PETITION AND THE
CERTIFIED ORDER OF COMMITMENT SOUGHT TO BE MODIFIED.
(C) THE PETITION SHALL BE FILED BEFORE THE COURT THAT EXERCISED JURIS-
DICTION OVER THE MOST RECENT PERMANENCY PROCEEDING INVOLVING THE CHILD
AND SHALL BE ASSIGNED, WHEREVER PRACTICABLE, TO THE FAMILY COURT JUDGE
WHO PRESIDED OVER THAT PROCEEDING OR THE PROCEEDING TO TERMINATE
PARENTAL RIGHTS.
(D) WHEREVER PRACTICABLE, THE CHILD SHALL BE REPRESENTED BY THE SAME
ATTORNEY THAT REPRESENTED THE CHILD IN THE MOST RECENT PERMANENCY
PROCEEDING AND THE PARENT OR PARENTS SHALL BE REPRESENTED BY THE SAME
ATTORNEY OR ATTORNEYS WHO REPRESENTED THE PARENT OR PARENTS IN THE
TERMINATION OF PARENTAL RIGHTS PROCEEDING. WHERE THIS IS NOT PRACTICA-
BLE, OR WHERE THE COURT GRANTS A REQUEST BY THE ATTORNEY OR ATTORNEYS TO
BE RELIEVED, THE COURT SHALL IMMEDIATELY ASSIGN A NEW ATTORNEY OR ATTOR-
NEYS, AS APPLICABLE.
S 637. BURDEN OF PROOF, DISPOSITION AND FINDINGS. (A) THE PETITIONER
SHALL HAVE THE BURDEN OF PROOF BY CLEAR AND CONVINCING EVIDENCE THAT
RESTORATION OF PARENTAL RIGHTS IS IN THE CHILD'S BEST INTERESTS, THAT
THE REQUIREMENTS OF SECTION SIX HUNDRED THIRTY-FIVE OF THIS PART HAVE
BEEN MET AND THAT ALL OF THE PARTIES AND THE CHILD HAVE CONSENTED OR, IF
THE PETITIONER IN THE PROCEEDING IN WHICH GUARDIANSHIP AND CUSTODY HAVE
BEEN COMMITTED FAILED TO CONSENT TO THE RELIEF REQUESTED, THAT SUCH
FAILURE WAS WITHOUT GOOD CAUSE.
(B) THE COURT SHALL STATE ON THE RECORD THE REASON OR REASONS FOR ITS
DISPOSITION OF THE PETITION. THE COURT MAY MAKE THE FOLLOWING ORDERS OF
DISPOSITION:
(I) THE COURT MAY GRANT THE PETITION, MODIFY THE ORDER OF DISPOSITION
PREVIOUSLY ENTERED IN THE TERMINATION OF PARENTAL RIGHTS PROCEEDING AND
TRANSFER GUARDIANSHIP AND CUSTODY OF THE CHILD TO THE BIRTH PARENT OR
PARENTS, PROVIDED, HOWEVER, THAT THE FINDINGS OF FACT RENDERED PURSUANT
TO SECTION SIX HUNDRED TWENTY-TWO OF THIS ARTICLE OR SUBDIVISION FOUR OF
SECTION THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW THAT
A. 8524 3
FORMED THE BASIS FOR THE ADJUDICATION TERMINATING PARENTAL RIGHTS SHALL
REMAIN; OR
(II) THE COURT MAY DISMISS THE PETITION, IN WHICH CASE THE COMMITMENT
OF GUARDIANSHIP AND CUSTODY OF THE CHILD TO THE AUTHORIZED AGENCY OR
INDIVIDUAL WOULD CONTINUE AND A PERMANENCY HEARING WOULD BE REQUIRED TO
BE HELD AS SCHEDULED IN ACCORDANCE WITH ARTICLE TEN-A OF THIS ACT; OR
(III) THE COURT MAY GRANT THE PETITION CONDITIONALLY FOR A DESIGNATED
PERIOD OF UP TO SIX MONTHS, DURING WHICH TIME GUARDIANSHIP AND CUSTODY
OF THE CHILD SHALL REMAIN WITH THE LOCAL SOCIAL SERVICES DISTRICT OR
AUTHORIZED AGENCY WHILE THE CHILD MAY VISIT WITH, OR BE PLACED ON A
TRIAL DISCHARGE WITH, THE BIRTH PARENT OR PARENTS. THE COURT SHALL
DIRECT THE DISTRICT OR AGENCY TO SUPERVISE THE CHILD'S BIRTH PARENT OR
PARENTS, DEVELOP A REUNIFICATION PLAN AND PROVIDE APPROPRIATE TRANSI-
TIONAL SERVICES TO THE CHILD AND BIRTH PARENT OR PARENTS AND REPORT TO
THE PARTIES, ATTORNEY FOR THE CHILD AND THE COURT NOT LATER THAN THIRTY
DAYS PRIOR TO THE EXPIRATION OF THE DESIGNATED PERIOD. THE COURT SHALL
SCHEDULE THE PROCEEDING TO BE HEARD PRIOR TO THE EXPIRATION OF THE
DESIGNATED PERIOD AND SHALL DETERMINE WHETHER TO GRANT THE PETITION
PERMANENTLY IN ACCORDANCE WITH PARAGRAPH (I) OF THIS SUBDIVISION OR
DISMISS THE PETITION IN ACCORDANCE WITH PARAGRAPH (II) OF THIS SUBDIVI-
SION. THE COURT SHALL STATE ITS REASONS FOR ITS DETERMINATION. IF THE
PETITION IS PERMANENTLY GRANTED, THE CHILD'S CUSTODY AND GUARDIANSHIP
SHALL BE TRANSFERRED TO THE BIRTH PARENT OR PARENTS. IF THE CHILD HAS
BEEN REMOVED FROM THE CUSTODY OF THE BIRTH PARENT OR PARENTS PRIOR TO
THE EXPIRATION OF THE DESIGNATED PERIOD BY REASON OF A REPORT OF
SUSPECTED CHILD ABUSE OR MALTREATMENT, THE COURT SHALL SCHEDULE THE
PROCEEDING TO BE HEARD ON NOTICE TO THE PARTIES AND ATTORNEY FOR THE
CHILD, MAY TERMINATE THE TRIAL DISCHARGE AND MAY DISMISS THE PETITION IN
ACCORDANCE WITH PARAGRAPH (II) OF THIS SUBDIVISION.
S 2. Item (III) of clause (B) of subparagraph (viii) of paragraph 2 of
subdivision (d) of section 1089 of the family court act, as added by
section 27 of part A of chapter 3 of the laws of 2005, is amended and a
new item (IV) is added to read as follows:
(III) recommend that the office of children and family services inves-
tigate the facts and circumstances concerning the discharge of responsi-
bilities for the care and welfare of such child by a local social
services district pursuant to section three hundred ninety-five of the
social services law[.]; AND
(IV) RECOMMEND THAT THE ATTORNEY FOR THE CHILD, LOCAL SOCIAL SERVICES
DISTRICT OR AGENCY FILE A PETITION PURSUANT TO PART ONE-A OF ARTICLE SIX
OF THIS ACT TO RESTORE THE PARENTAL RIGHTS OF A CHILD WHO HAS BEEN FREED
FOR ADOPTION.
S 3. The section heading of section 384-b of the social services law,
as added by chapter 666 of the laws of 1976, is amended and a new subdi-
vision 13 is added to read as follows:
Guardianship and custody of destitute or dependent children; commit-
ment by court order; MODIFICATION OF COMMITMENT AND RESTORATION OF
PARENTAL RIGHTS.
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.
S 4. This act shall take effect on the ninetieth day after it shall
have become a law.