§ 358-a. Dependent children in foster care. (1) Initiation of judicial
proceeding. (a) A social services official who accepts or proposes to
accept the custody and guardianship of a child by means of an instrument
executed pursuant to the provisions of section three hundred eighty-four
of this chapter, or the care and custody of a child as a public charge
by means of an instrument executed pursuant to the provisions of section
three hundred eighty-four-a of this chapter, shall determine whether
such child is likely to remain in the care of such official for a period
in excess of thirty consecutive days. If such official determines that
the child is likely to remain in care for a period in excess of thirty
consecutive days, such official shall petition the family court judge of
the county or city in which the social services official has his or her
office, to approve such instrument upon a determination that the
placement of the child is in the best interest of the child, that it
would be contrary to the welfare of the child to continue in his or her
own home and, that where appropriate, reasonable efforts were made prior
to the placement of the child into foster care to prevent or eliminate
the need for removal of the child from his or her home and that prior to
the initiation of the court proceeding required to be held by this
subdivision, reasonable efforts were made to make it possible for the
child to return safely home. In the case of a child whose care and
custody have been transferred to a social services official by means of
an instrument executed pursuant to the provisions of section three
hundred eighty-four-a of this chapter, approval of the instrument shall
only be made upon an additional determination that all of the
requirements of such section have been satisfied.

* (b) The social services official shall initiate the proceeding by
filing the petition as soon as practicable, but in no event later than
thirty days following removal of the child from the home provided,
however, that the court shall receive, hear and determine petitions
filed later than thirty days following removal of the child from his or
her home, but state reimbursement shall not be available to the social
services district for care and maintenance provided to such child. The
social services official shall diligently pursue such proceeding. Where
the care and custody of a child as a public charge has been transferred
to a social services official by means of an instrument executed
pursuant to the provisions of section three hundred eighty-four-a of
this chapter for a period of thirty days or less for an indeterminate
period which such official deems unlikely to exceed thirty days, and
thereafter such official determines that such child will remain in his
or her care and custody for a period in excess of thirty days, such
official shall, as soon as practicable but in no event later than thirty
days following such determination, execute with the child's parent,
parents or guardian a new instrument pursuant to the provision of
section three hundred eighty-four or three hundred eighty-four-a of this
chapter and shall file a petition in family court, pursuant to this
section, for approval of such instrument. In such cases involving a
social services official, expenditures for the care and maintenance of
such child from the date of the initial transfer of his care and custody
to the social services official shall be subject to state reimbursement.

* NB Effective until June 30, 2027

* (b) The social services official shall initiate the proceeding by
filing the petition as soon as practicable, but in no event later than
thirty days following removal of the child from the home provided,
however, that the court shall receive, hear and determine petitions
filed later than thirty days following removal of the child from his or
her home, but state reimbursement to the social services district for
care and maintenance provided to such child shall be denied pursuant to
section one hundred fifty-three-d of this chapter. The social services
official shall diligently pursue such proceeding. Where the care and
custody of a child as a public charge has been transferred to a social
services official by means of an instrument executed pursuant to the
provisions of section three hundred eighty-four-a of this chapter for a
period of thirty days or less for an indeterminate period which such
official deems unlikely to exceed thirty days, and thereafter such
official determines that such child will remain in his or her care and
custody for a period in excess of thirty days, such official shall, as
soon as practicable but in no event later than thirty days following
such determination, execute with the child's parent, parents or guardian
a new instrument pursuant to the provision of section three hundred
eighty-four or three hundred eighty-four-a of this chapter and shall
file a petition in family court, pursuant to this section, for approval
of such instrument. In such cases involving a social services official,
expenditures for the care and maintenance of such child from the date of
the initial transfer of his care and custody to the social services
official shall be subject to state reimbursement, notwithstanding the
provisions of section one hundred fifty-three-d of this chapter.

* NB Effective June 30, 2027

(2) Contents of petition. (a) Any petition required or authorized
pursuant to subdivision one of this section shall allege whether the
parent, parents or guardian executed the instrument because the parent,
parents or guardian would be unable to make adequate provision for the
care, maintenance and supervision of such child in his or their own
home, and shall include facts supporting the petition. The petition
shall contain a notice in conspicuous print providing that if the child
remains in foster care for fifteen of the most recent twenty-two months,
the agency may be required by law to file a petition to terminate
parental rights. The petition shall also 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 chapter, 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 chapter. The petition shall also set forth
the efforts which were made, prior to the placement of the child into
foster care, to prevent or eliminate the need for removal of the child
from his or her home and the efforts which were made prior to the filing
of the petition to make it possible for the child to return safely home.
If such efforts were not made, the petition shall set forth the reasons
why these efforts were not made. The petition shall request that,
pending any hearing which may be required by the family court judge, a
temporary order be made transferring the care and custody of the child
to the social services official in accordance with the provisions of
subdivision three of this section. In the case of a child whose care and
custody have been transferred to a social services official by means of
an instrument executed pursuant to section three hundred eighty-four-a
of this chapter, the petition shall also allege and there shall be shown
by affidavit or other proof satisfactory to the court that all the
requirements of such section have been satisfied, including the results
of the investigation to locate relatives of the child, including any
non-respondent parent and all of the child's grandparents. Such results
shall include whether any relative who has been located expressed an
interest in becoming a foster parent for the child or in seeking custody
or care of the child.

(b) The social services official who initiated the proceeding shall
file supplemental information with the clerk of the court not later than
ten days prior to the date on which the proceeding is first heard by the
court. Such information shall include relevant portions, as determined
by the department, of the assessment of the child and his family
circumstances performed and maintained, and the family's service plan if
available, pursuant to sections four hundred nine-e and four hundred
nine-f of this chapter. Copies of such supplemental information need not
be served upon those persons entitled to notice of the proceeding and a
copy of the petition pursuant to subdivision four of this section.

(2-a) Continuing jurisdiction. (a) The court shall possess continuing
jurisdiction over the parties until the child is discharged from
placement and all orders regarding supervision, protection or services
have expired.

(b) The court, upon approving an instrument under this section, shall
schedule a permanency hearing pursuant to article ten-A of the family
court act for a date certain not more than eight months after the
placement of the child into foster care. Such date certain shall be
included in the order approving the instrument.

(3) Disposition of petition. (a) If the court is satisfied that the
parent, parents or guardian executed such instrument knowingly and
voluntarily and because he or she would be unable to make adequate
provision for the care, maintenance and supervision of such child in his
or her home, and that the requirements of section three hundred
eighty-four-a of this chapter, if applicable, have been satisfied and
that where appropriate, reasonable efforts were made prior to the
placement of the child into foster care to prevent or eliminate the need
for removal of the child from his or her home and that prior to the
initiation of the court proceeding required to be held by subdivision
one of this section, reasonable efforts were made to make it possible
for the child to return safely to his or her home, the court may find
and determine that the best interests and welfare of the child would be
promoted by removal of the child from such home, and that it would be
contrary to the welfare of such child for the child to continue in such
home, and the court shall thereupon grant the petition and approve such
instrument and the transfer of the custody and guardianship or care and
custody of such child to such social services official in accordance
therewith. If the court determines that, where appropriate, reasonable
efforts were made prior to the placement of the child into foster care
to prevent or eliminate the need for removal of the child from his or
her home, that prior to the initiation of the court proceeding
reasonable efforts were made to make it possible for the child to return
safely to his or her home, or that it would be contrary to the best
interests of the child to continue in the home, or that reasonable
efforts to prevent or eliminate the need for removal of the child from
the home were not made but that the lack of such efforts was appropriate
under the circumstances, the court order shall include such findings.
Approval of such instrument in a proceeding pursuant to this section
shall not constitute a remand or commitment pursuant to this chapter and
shall not preclude challenge in any other proceeding to the validity of
the instrument. If the permanency plan for the child is adoption,
guardianship, permanent placement with a fit and willing relative or
another planned permanent living arrangement other than reunification
with the parent or parents of the child, the court must consider and
determine in its order whether reasonable efforts are being made to make
and finalize such alternate permanent placement.

(b) For the purpose of this section, reasonable efforts to prevent or
eliminate the need for removing the child from the home of the child or
to make it possible for the child to return safely to the home of the
child shall not be required where the court determines that:

(1) the parent of such child has subjected the child to aggravated
circumstances, as defined in subdivision twelve of this section;

(2) the parent of such child has been convicted of (i) murder in the
first degree as defined in section 125.27 or murder in the second degree
as defined in section 125.25 of the penal law and the victim was another
child of the parent; or (ii) manslaughter in the first degree as defined
in section 125.20 or manslaughter in the second degree as defined in
section 125.15 of the penal law and the victim was another child of the
parent, provided, however, that the parent must have acted voluntarily
in committing such crime;

(3) the parent of such child 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 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;

(4) 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 commission of one of the foregoing crimes resulted in serious
physical injury to the child or another child of the parent;

(5) the parent of such child has been convicted in any other
jurisdiction of an offense which includes all of the essential elements
of any crime specified in subparagraph two, three or four of this
paragraph, and the victim of such offense was the child or another child
of the parent; or

(6) the parental rights of the parent to a sibling of such child have
been involuntarily terminated;
unless the court determines that providing reasonable efforts would be
in the best interests of the child, not contrary to the health and
safety of the child, and would likely result in the reunification of the
parent and the child in the foreseeable future. The court shall state
such findings in its order.

If the court determines that reasonable efforts are not required
because of one of the grounds set forth above, a permanency hearing
shall be held within thirty days of the finding of the court that such
efforts are not required. Such hearing shall be conducted pursuant to
section one thousand eighty-nine of the family court act. The local
social services official shall thereafter make reasonable efforts to
place the child in a timely manner and to complete whatever steps are
necessary to finalize the permanent placement of the child as set forth
in the permanency plan approved by the court. If reasonable efforts are
determined by the court not to be required because of one of the grounds
set forth in this paragraph, the local social services official may file
a petition for termination of parental rights of the parent in
accordance with section three hundred eighty-four-b of this chapter.

(c) For the purpose of this section, in determining reasonable efforts
to be made with respect to a child, and in making such reasonable
efforts, the child's health and safety shall be the paramount concern.

(d) For the purpose of this section, a sibling shall include a
half-sibling.

(e) The order granting the petition of a social services official and
approving an instrument executed pursuant to section three hundred
eighty-four-a of this chapter may include conditions, where appropriate
and specified by the judge, requiring the implementation of a specific
plan of action by the social services official to exercise diligent
efforts toward the discharge of the child from care, either to his own
family or to an adoptive home; provided, however, that such plan shall
not include the provision of any service or assistance to the child and
his or her family which is not authorized or required to be made
available pursuant to the comprehensive annual services program plan
then in effect. An order of placement shall include, at the least:

(i) a description of the visitation plan;

(ii) a direction that the respondent or respondents shall be notified
of the planning conference or conferences to be held pursuant to
subdivision three of section four hundred nine-e of this chapter, of
their right to attend the conference, and of their right to have counsel
or other representative or companion with them;

A copy of the court's order and the service plan shall be given to the
respondent. The order shall also contain a notice that if the child
remains in foster care for more than fifteen of the most recent
twenty-two months, the agency may be required by law to file a petition
to terminate parental rights.

Nothing in such order shall preclude either party to the instrument
from exercising its rights under this section or under any other
provision of law relating to the return of the care and custody of the
child by the social services official to the parent, parents or
guardian. Violation of such on order shall be subject to punishment
pursuant to section seven hundred fifty-three of the judiciary law.

(f) For a child who has attained the age of fourteen, if the court
grants the petition and approves an instrument executed pursuant to
section three hundred eighty-four or three hundred eighty-four-a of this
chapter and the transfer of custody and guardianship or care and custody
of the child to a local social services official the court shall
determine in its order the services and assistance needed to assist the
child in learning independent living skills.

(g) (i) In any case in which an order has been issued pursuant to this
section approving a foster care placement instrument, the social
services official or authorized agency charged with custody or care of
the child shall report the initial placement and any anticipated change
in placement to the court and the attorneys for the parties, including
the attorney for the child, forthwith, but not later than one business
day following either the decision to make the initial placement or to
change the placement or the actual date the initial placement or
placement change occurred, whichever is sooner. Such notice shall
indicate the date that the placement change is anticipated to occur or
the date the placement change occurred, as applicable. Provided,
however, if such notice lists an anticipated date for the initial
placement or placement change, the local social services district or
authorized agency shall subsequently notify the court and attorneys for
the parties, including the attorney for the child, of the date the
placement or placement change occurred; such notice shall occur no later
than one business day following the placement or placement change.

(ii) When a child whose legal custody was transferred to the
commissioner of a local social services district in accordance with this
section resides in a qualified residential treatment program, as defined
in section four hundred nine-h of this chapter, and where such child's
initial placement or change in placement in such program commenced on or
after September twenty-ninth, two thousand twenty-one, upon receipt of
notice required pursuant to subparagraph (i) of this paragraph and
motion of the local social services district, the court shall schedule a
court review to make an assessment and determination of such placement
in accordance with section three hundred ninety-three of this chapter.
Notwithstanding any other provision of law to the contrary, such court
review shall occur no later than sixty days from the date the placement
of the child in the qualified residential treatment program commenced.

(4) Notice. (a) Upon the filing of a petition pursuant to this
section, the family court judge shall direct that service of a notice of
the proceeding and a copy of the petition shall be made upon such
persons and in such manner as the judge may direct. If the instrument
executed by the parent, parents or guardian of a child consents to the
jurisdiction of the family court over such proceeding, and waives
service of the petition and notice of proceeding, then the family court
judge may, in his discretion, dispense with service upon the consenting
parent, parents or guardian, provided, however, that a waiver of service
of process and notice of the proceeding by a parent or guardian who has
transferred the care and custody of a child to an authorized agency,
pursuant to section three hundred eighty-four-a of this chapter, shall
be null and void and shall not be given effect by the court. Notice to
any parent, parents or guardian who has not executed the instrument
shall be required.

(b) In the event the family court judge determines that service by
publication is necessary and orders service by publication, service
shall be made in accordance with the provisions of rule three hundred
sixteen of the civil practice law and rules, provided, however, that a
single publication of the summons or other process with a notice as
specified herein in only one newspaper designated in the order shall be
sufficient. In no event shall the whole petition be published. The
petition shall be delivered to the person summoned at the first court
appearance pursuant to section one hundred fifty-four-a of the family
court act. The notice to be published with the summons or other process
shall state the date, time, place and purpose of the proceeding.

(i) If the petition is initiated to transfer custody and guardianship
of a child by an instrument executed pursuant to the provisions of
section three hundred eighty-four of this chapter, the notice to be
published shall also state that failure to appear may result, without
further notice, in the transfer of custody and guardianship of the child
to a social services official in this proceeding.

(ii) If the petition is initiated to transfer care and custody of a
child by an instrument executed pursuant to the provisions of section
three hundred eighty-four-a of this chapter, the notice to be published
shall also state that failure to appear may result, without further
notice, in the transfer of care and custody of the child to a social
services official in this proceeding.

(5) Hearing and waiver. The instrument may include a consent by the
parent, parents or guardian to waiver of any hearing and that a
determination may be made by the family court judge based solely upon
the petition, and other papers and affidavits, if any, submitted to the
family court judge, provided, however, that a waiver of hearing by a
parent or guardian who has transferred the care and custody of a child
to an authorized agency, pursuant to section three hundred eighty-four-a
of this chapter, shall be effective only if such waiver was executed in
an instrument separate from that transferring the child's care and
custody. In any case where an effective waiver has been executed, the
family court judge may dispense with a hearing, approve the instrument
and the transfer of the custody and guardianship or care and custody of
the child to the social services official and make the requisite
findings and determinations provided for in subdivision three of this
section, if it appears to the satisfaction of the family court judge
that the allegations in the petition are established sufficiently to
warrant the family court judge to grant such petition, to make such
findings and determination, and to issue such order.

In any case where a hearing is required, the family court judge, if
the holding of an immediate hearing on notice is impractical, may
forthwith, upon the basis of the instrument and the allegations of the
petition, make a temporary finding that the parent, parents, or guardian
of the child are unable to make adequate provision for the care,
maintenance and supervision of such child in the child's own home and
that the best interest and welfare of the child will be promoted by the
removal of such child from such home and thereupon, the family court
judge shall make a temporary order transferring the care and custody of
such child to the social services official, and shall set the matter
down for hearing on the first feasible date.

(6) Representation. In any case where a hearing is directed by the
family court judge, he or she shall, pursuant to section two hundred
forty-nine of the family court act, appoint an attorney to represent the
child, who shall be admitted to practice law in the state of New York.

(7) Return of child. If an instrument provides for the return of the
care and custody of a child by the local social services official to the
parent, parents or guardian upon any terms and conditions or at any
time, the local social services official shall comply with such terms of
such instrument without further court order. Every order approving an
instrument providing for the transfer of the care and custody of a child
to a local social services official shall be served upon the parent,
parents or guardian who executed such instrument in such manner as the
family court judge may provide in such order, together with a notice of
the terms and conditions under which the care and custody of such child
may be returned to the parent, parents or guardian. If an instrument
provides for the return of the care and custody of a child by the local
social services official to the parent, parents or guardian without
fixing a definite date for such return, or if the local social services
official shall fail to return a child to the care and custody of the
child's parent, parents or guardian in accordance with the terms of the
instrument, the parent, parents or guardian may seek such care and
custody by motion for return of such child and order to show cause in
such proceeding or by writ of habeas corpus in the supreme court.
Nothing in this subdivision shall limit the requirement for a permanency
hearing pursuant to article ten-A of the family court act.

(8) Appealable orders. Any order of a family court denying any
petition of a local social services official filed pursuant to this
section, or any order of a family court granting or denying any motion
filed by a parent, parents or guardian for return of a child pursuant to
this section, shall be deemed an order of disposition appealable
pursuant to article eleven of the family court act.

(9) Duty of social services official. In the event that a family court
judge denies a petition of a social services official for approval of an
instrument, upon a finding that the welfare of the child would not be
promoted by foster care, such social services official shall not accept
or retain the care and custody as a public charge or custody and
guardianship of such child, provided, however, that the denial by a
family court judge of a petition of a social services official filed
pursuant to this section shall not limit or affect the duty of such
social services official to take such other action or offer such
services as are authorized by law to promote the welfare and best
interests of the child.

(10) Visitation rights; non-custodial parents and grandparents. (a)
Where a social services official incorporates in an instrument
visitation rights set forth in an order, judgment or agreement as
described in paragraph (d) of subdivision two of section three hundred
eighty-four-a of this chapter, such official shall make inquiry of the
state central register of child abuse and maltreatment to determine
whether or not the person having such visitation rights is a subject or
another person named in an indicated report of child abuse or
maltreatment, as such terms are defined in section four hundred twelve
of this chapter, and shall further ascertain, to the extent practicable,
whether or not such person is a respondent in a proceeding under article
ten of the family court act whereby the respondent has been alleged or
adjudicated to have abused or neglected such child.

(b) Where a social services official or the attorney for the child
opposes incorporation of an order, judgment or agreement conferring
visitation rights as provided for in paragraph (e) of subdivision two of
section three hundred eighty-four-a of this chapter, the social services
official or attorney for the child shall apply for an order determining
that the provisions of such order, judgment or agreement should not be
incorporated into the instrument executed pursuant to such section. Such
order shall be granted upon a finding, based on competent, relevant and
material evidence, that the child's life or health would be endangered
by incorporation and enforcement of visitation rights as described in
such order, judgment or agreement. Otherwise, the court shall deny such
application.

(c) Where visitation rights pursuant to an order, judgment or
agreement are incorporated in an instrument, the parties may agree to an
alternative schedule of visitation equivalent to and consistent with the
original or modified visitation order, judgment, or agreement where such
alternative schedule reflects changed circumstances of the parties and
is consistent with the best interests of the child. In the absence of
such an agreement between the parties, the court may, in its discretion,
upon application of any party or the child's attorney, order an
alternative schedule of visitation, as described herein, where it
determines that such schedule is necessary to facilitate visitation and
to protect the best interests of the child.

(d) The order providing an alternative schedule of visitation shall
remain in effect for the length of the placement of the child as
provided for in such instrument unless such order is subsequently
modified by the court for good cause shown. Whenever the court makes an
order denying or modifying visitation rights pursuant to this
subdivision, the instrument described in section three hundred
eighty-four-a of this chapter shall be deemed amended accordingly.

(11) Siblings, placement and visitation. (a) In reviewing any petition
brought under this section, the court shall inquire if the social
services official has arranged for the placement of the child who is the
subject of the petition with any minor siblings or half-siblings who are
placed in care or, if such children have not been placed together,
whether such official has arranged for regular visitation and other
forms of regular communication between such child and such siblings.

(b) If the court determines that the subject child has not been placed
with his or her minor siblings or half-siblings who are in care, or that
regular visitation and other forms of regular communication between the
subject child and his or her minor siblings or half-siblings has not
been provided or arranged for, the court may direct such official to
provide or arrange for such placement or regular visitation and
communication where the court finds that such placement or visitation
and communication is in the child's and his or her siblings' or
half-siblings' best interests. Placement or regular visitation and
communication with siblings or half-siblings shall be presumptively in
the child's and his or her siblings' or half-siblings' best interests
unless such placement or visitation and communication would be contrary
to the child's or his or her siblings' or half-siblings' health, safety
or welfare, or the lack of geographic proximity precludes or prevents
visitation.

(c) If a child placed in foster care pursuant to this section is not
placed together or afforded regular communication with his or her
siblings, the child, through his or her attorney or through a parent on
his or her behalf, may move for an order regarding placement or
communication. The motion shall be served upon: (i) the parent or
parents in the proceeding under this section; (ii) the local social
services official having the care of the child; (iii) other persons
having care, custody and control of the child, if any; (iv) the parents
or other persons having care, custody and control of the siblings to be
visited or with whom contact is sought; (v) such sibling himself or
herself if ten years of age or older; and (vi) such sibling's attorney,
if any. Upon receipt of a motion filed under this paragraph the court
shall determine, after giving notice and an opportunity to be heard to
the persons served, whether visitation and contact would be in the best
interests of the child and his or her siblings. The court may order that
the child be placed together with or have regular communication with his
or her siblings if the court determines it to be in the best interests
of the child and his or her siblings.

(d) For purposes of this section, "siblings" shall include
half-siblings and those who would be deemed siblings or half-siblings
but for the surrender, termination of parental rights or death of a
parent.

(12) For the purposes of this section, aggravated circumstances means
where a child has been either severely or repeatedly abused, as defined
in subdivision eight of section three hundred eighty-four-b of this
chapter; or where a child has subsequently been found to be an abused
child, as defined in paragraph (i) or (iii) of subdivision (e) of
section one thousand twelve of the family court act, within five years
after return home following placement in foster care as a result of
being found to be a neglected child, as defined in subdivision (f) of
section one thousand twelve of the family court act, provided that the
respondent or respondents in each of the foregoing proceedings was the
same; or where the court finds by clear and convincing evidence that the
parent of a child in foster care has refused and has failed completely,
over a period of at least six months from the date of removal, to engage
in services necessary to eliminate the risk of abuse or neglect if
returned to the parent, and has failed to secure services on his or her
own or otherwise adequately prepare for the return home and, after being
informed by the court that such an admission could eliminate the
requirement that the local department of social services provide
reunification services to the parent, the parent has stated in court
under oath that he or she intends to continue to refuse such necessary
services and is unwilling to secure such services independently or
otherwise prepare for the child's return home; provided, however, that
if the court finds that adequate justification exists for the failure to
engage in or secure such services, including but not limited to a lack
of child care, a lack of transportation, and an inability to attend
services that conflict with the parent's work schedule, such failure
shall not constitute an aggravated circumstance; or where a court has
determined a child five days old or younger was abandoned by a parent
with an intent to wholly abandon such child and with the intent that the
child be safe from physical injury and cared for in an appropriate
manner.