§ 384-a. Transfer of care and custody of children. 1. Method. The care
and custody of a child may be transferred by a parent or guardian, and
the care of a child may be transferred by any person to whom a parent
has entrusted the care of the child, to an authorized agency by a
written instrument in accordance with the provisions of this section.
Such transfer by a person who is not the child's parent or guardian
shall not affect the rights or obligations of the parents or guardian,
and such transfer shall be deemed a transfer of the care and custody of
the child for the purposes of section three hundred fifty-eight-a of
this chapter.

1-a. Prior to accepting a transfer of care and custody, a local social
services official shall commence a search to locate any non-respondent
parent of the child and shall conduct an immediate investigation to (a)
locate relatives of the child, including all of the child's
grandparents, all suitable relatives identified by either and any
relative identified by a child over the age of five as a relative who
plays or has played a significant positive role in his or her life, and
to inform them of the opportunity for becoming foster parents or for
seeking custody or care of the child, and that the child may be adopted
by foster parents if attempts at reunification with the birth parent are
not required or are unsuccessful; and to determine whether the child may
appropriately be placed with a suitable person related to the child and
whether such relative seeks approval as a foster parent pursuant to this
chapter for the purposes of providing care for such child, or wishes to
provide care and custody for the child until the parent or other person
responsible for the care of the child is able to resume custody; and (b)
identify minor siblings or half-siblings of the child and to determine
whether such siblings or half-siblings have been or are being
transferred to the care and custody of such official. Such official
shall provide or arrange for the provision of care so as to permit the
child and his or her minor siblings or half-siblings to be placed
together unless, in the judgment of such official, such placement would
be contrary to the best interests of the children; whereupon, such
official shall provide or arrange for regular visitation and other forms
of regular communication between such children unless, in the judgment
of such official, such visitation and communication would be contrary to
the best interests of such children. Placement or regular visitation and
communication with siblings or half-siblings shall be presumptively in
the child's best interests unless such placement or visitation and
communication would be contrary to the child's health, safety or
welfare, or the lack of geographic proximity precludes or prevents
visitation.

1-b. Upon accepting the transfer of care and custody of a child from
the parent, guardian or other person to whom care of the child has been
entrusted, a local social services official shall obtain information to
the extent known from such person regarding the other parent, any person
to whom the parent transferring care and custody had been married at the
time of the conception or birth of the child, any person who would be
entitled to consent to the adoption of the child pursuant to subdivision
one of section one hundred eleven of the domestic relations law, and any
other person listed in subdivision two of section three hundred
eighty-four-c of this title. Such information shall include, but not be
limited to, such parent's or person's name, last-known address, social
security number, employer's address and any other identifying
information. Any information provided pursuant to this subdivision shall
be recorded in the uniform case record maintained pursuant to section
four hundred nine-f of this article; provided, however, that the failure
to provide such information shall not invalidate the transfer of care
and custody.

2. Terms. (a) The instrument shall be upon such terms, for such time
and subject to such conditions as may be agreed upon by the parties
thereto. The office of children and family services may promulgate
suggested terms and conditions for inclusion in such instruments, but
shall not require that any particular terms and conditions be included.
If the instrument provides that the child is to be returned by the
authorized agency on a date certain or upon the occurrence of an
identifiable event, such agency shall return such child at such time
unless such action would be contrary to court order entered at any time
prior to such date or event or within ten days thereafter pursuant to
section three hundred eighty-four-b of this title or article six, ten,
or ten-A of the family court act or unless and so long as the parent or
guardian is unavailable or incapacitated to receive the child. The
parent or guardian may, upon written notice to such agency, request
return of the child at any time prior to the identified date or event,
whereupon such agency may, without court order, return the child or,
within ten days after such request, may notify the parent or guardian
that such request is denied. If such agency denies or fails to act upon
such request, the parent or guardian may seek return of the care and
custody of the child by motion in family court for return of such child
and order to show cause, or by writ of habeas corpus in the supreme
court or family court. If the instrument fails to specify a date or
identifiable event upon which such agency shall return such child, such
agency shall return the child within twenty days after having received
notice that the parent or guardian wishes the child returned, unless
such action would be contrary to court order entered at any time prior
to the expiration of such twenty day period pursuant to section three
hundred eighty-four-b of this title or article six, ten, or ten-A of the
family court act. Expenditures by a local social services district for
the care and maintenance of a child who has been continued in the care
of an authorized agency in violation of the provisions of this
subdivision shall not be subject to state reimbursement.

(b) No provisions set forth in any such instrument regarding the right
of the parent or guardian to visit the child or to have services
provided to the child and to the parent or guardian to strengthen the
parental relationship may be terminated or limited by the authorized
agency having the care and custody of the child unless: (i) the
instrument shall have been amended to so limit or terminate such right,
pursuant to subdivision three of this section; or (ii) the right of
visitation or to such services would be contrary to or inconsistent with
a court order obtained in any proceeding in which the parent or guardian
was a party.

(c) The instrument shall state, in lay terms, in conspicuous print of
at least eighteen point type:

(i) that the parent or guardian has the right, prior to signing the
instrument transferring the care and custody of the child to an
authorized agency, to legal representation of the parent's own choosing.
The agency shall provide the parent or guardian with a list of attorneys
or legal services organizations, if any, which provide free legal
services to persons unable to otherwise obtain such services;

(ii) that the parent or guardian has no legal obligation to transfer
the care and custody of the child to such official, and will incur no
legal sanction for failing to do so;

(iii) that the law permits the instrument to specify a date certain or
an identifiable event upon which the child is to be returned, and if no
date or event is specified, that the parent or guardian has a right to
the return of the child within twenty days of a request for return,
unless otherwise ordered by the court; and to otherwise have the child
returned in accordance with the terms of the instrument and the
provisions of this section;

(iv) that the parent or guardian has a right to supportive services,
which shall include preventive and other supportive services authorized
to be provided pursuant to the state's consolidated services plan, to
visit the child, and to determine jointly with the agency the terms and
frequency of visitation;

(v) that the parent or guardian, subject to the terms of the
instrument, has an obligation

(A) to visit the child,

(B) to plan for the future of the child,

(C) to meet with and consult with the agency about such plan,

(D) to contribute to the support of the child to the extent of his or
her financial ability to do so, and

(E) to inform the agency of any change of name and address;

(vi) that the failure of the parent or guardian to meet the
obligations listed in subparagraph (v) could be the basis for a court
proceeding for the commitment of the guardianship and custody of the
child to an authorized agency thereby terminating parental rights;

(vii) that the parent or guardian has a right to a fair hearing
pursuant to section twenty-two of this chapter concerning the agency's
failure to permit the parent or guardian to visit the child or to
provide supportive services, which shall include preventive and other
supportive services authorized to be provided pursuant to the state's
consolidated services plan, to the child and to the parent or guardian;

(viii) the amount of money which the parent will periodically
contribute to the support of the child and the schedule for such
payments, if known.

(ix) 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.

(d) In any case where a parent who has transferred care and custody of
a child to a social services official pursuant to this section informs
the social services official that an order or judgment conferring
visitation rights relating to the child has been entered by the family
court or supreme court or that a written agreement as described in
section two hundred thirty-six of the domestic relations law between the
parents confers such rights, any instrument executed pursuant to this
section shall incorporate the provisions of such order, judgment or
agreement to the extent that visitation rights are affected and shall
provide for visitation or other rights as required by such order,
judgment or agreement. Such incorporation shall not preclude a social
services official from exercising his authority pursuant to paragraph
(e) or (f) of this subdivision.

(e) Where a social services official opposes incorporation of an
order, judgment or agreement described in paragraph (d) of this
subdivision, such official may, upon execution of the instrument
described in this section and upon notice to the non-custodial parent or
grandparent named in such order, judgment or agreement, be heard thereon
in a proceeding pursuant to section three hundred fifty-eight-a of this
chapter.

(f) Nothing in this section shall be deemed to prohibit a social
services official or an attorney for the child, if any, from making an
application to modify the terms of a visitation order, incorporated
pursuant to this section, for good cause shown, upon notice to all
interested parties, or to limit the right of a non-custodial parent or
grandparent to seek visitation pursuant to applicable provisions of law.

(g) In the event a child whose care and custody is transferred
pursuant to this section is admitted to a hospital operated or licensed
by the office of mental health and cannot be returned to the physical
custody of his or her parent or guardian upon request because, pursuant
to section four hundred of this chapter, the medical director of the
facility has not authorized the removal of the child, the child shall
nonetheless be deemed to have been returned to the legal care and
custody of his or her parent or guardian. Expenditures by a social
services district for the care and maintenance of such a child shall be
subject to state reimbursement notwithstanding the provisions of section
one hundred fifty-three-b of this chapter.

(h) (i) Where a local social services official determines that a child
is at significant risk of placement in the care and custody of the local
commissioner of social services during the eighteen months immediately
following review by such official because the custodial parent or legal
guardian of such child is suffering from a progressively chronic or
irreversibly fatal illness and it is determined that there is neither a
relative nor a close friend identified by the custodial parent or the
legal guardian able to assume legal guardianship of the child, the
custodial parent or legal guardian shall be assisted by the local social
services district in transferring the care and custody of the child to
an authorized agency by a written instrument in accordance with the
provisions for this section which provides the transfer shall not take
effect until the parent or legal guardian dies, becomes debilitated or
incapacitated as defined in subdivision one of section seventeen hundred
twenty-six of the surrogate's court procedure act.

(ii) Where a local social services official determines that a child is
at significant risk of placement in the care and custody of the local
commissioner of social services during the eighteen months immediately
following a review of such official because the custodial parent or
legal guardian is suffering from a progressively chronic or irreversibly
fatal illness and there is a relative or close friend identified by the
custodial parent or legal guardian who is able and willing to assume
care and custody of the child, but who requires foster care services and
financial support thereof pursuant to section three hundred
ninety-eight-a of this article, the custodial parent or legal guardian
shall be assisted by the local social services district in transferring
the care and custody of the child to an authorized agency by a written
instrument in accordance with the provisions of this section. Such
instrument shall provide that the transfer of custody shall not take
effect until the parent or legal guardian dies, becomes debilitated or
incapacitated as defined in subdivision one of section seventeen hundred
twenty-six of the surrogate's court procedure act. If otherwise
qualified, the social services official shall assist the person
identified to accept care and custody of the child to become certified
as a foster parent.

(iii) A local social services official who accepts or proposes to
accept the care and custody of a child by means of a written instrument
executed pursuant to this paragraph, shall, pursuant to section three
hundred fifty-eight-a of this chapter, petition the family court of the
county or city in which the local social services official has his or
her office to approve such written instrument. A written instrument
executed pursuant to this paragraph and approved pursuant to section
three hundred fifty-eight-a of this chapter shall be in effect until the
court reviews the child's placement pursuant to article ten-A of the
family court act. The status of a child subject to such an instrument
shall be reviewed by the court pursuant to article ten-A of the family
court act.

(iv) Upon receiving a notice from the custodial parent or the legal
guardian that the parent or legal guardian is no longer debilitated or
incapacitated and that the parent or legal guardian requests the
immediate return of the child, the social services district shall return
such child to the parent or legal guardian within ten days of receiving
notice, except where a contrary court order has been issued pursuant to
part two, five or seven of article ten of the family court act.

3. Amendment. (a) The parties to the instrument or anyone acting on
their behalf with their consent may amend it by mutual consent but only
by a supplemental instrument executed in the same manner as the original
instrument. The supplemental instrument shall be attached to, and become
part of, the original instrument. The supplemental instrument shall
contain the recitation required in paragraph (c) of subdivision two of
this section.

(b) The instrument shall also be deemed amended where ordered by the
family court pursuant to the provisions of paragraph (d) of subdivision
ten of section three hundred fifty-eight-a of this chapter.

4. Execution. The instrument shall be executed in the presence of one
or more witnesses and shall include only the provisions, terms and
conditions agreed upon by the parties thereto.

5. Records. The instrument shall be kept in a file maintained for that
purpose by the agency accepting the care and custody of the child. A
copy of the instrument shall be given to the parent or guardian at the
time of the execution of the instrument.

6. An instrument executed pursuant to the provisions of this section
shall not constitute a remand or commitment pursuant to this chapter.