STATE OF NEW YORK
________________________________________________________________________
6815
IN SENATE
March 12, 2014
___________
Introduced by Sen. FELDER -- (at request of the Office of Court Adminis-
tration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Children and Families
AN ACT to amend the family court act, in relation to reentry of former
foster children into foster care; and to repeal certain provisions of
such law relating to making technical corrections thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 6 of section 355.3 of the family court act, as
2 amended by chapter 663 of the laws of 1985, is amended to read as
3 follows:
4 6. Successive extensions of placement under this section may be grant-
5 ed, but no placement may be made or continued beyond the respondent's
6 eighteenth birthday without [the child's] his or her consent and in no
7 event past [the child's] his or her twenty-first birthday. A respond-
8 ent, who was previously placed or transferred into placement with a
9 local social services district pursuant to this section or section 353.3
10 or 355.1 of this article and who was discharged from foster care on or
11 after the date on which the child attained the age of eighteen due to a
12 failure to consent to the continuation of placement, may move or, with
13 his or her consent, may be the subject of a motion by a social services
14 official to reenter foster care in accordance with the provisions of
15 section one thousand ninety-one of this act.
16 § 2. Subdivision (f) of section 756-a of the family court act, as
17 added by chapter 604 of the laws of 1986, is amended to read as follows:
18 (f) Successive extensions of placement under this section may be
19 granted, but no placement may be made or continued beyond the child's
20 eighteenth birthday without his or her consent and in no event past his
21 or her twenty-first birthday. A child who was previously placed with a
22 local social services district pursuant to section seven hundred fifty-
23 six of this part and who was discharged from foster care on or after the
24 date on which he or she attained the age of eighteen due to a failure to
25 consent to continuation of placement may move or, with his or her
26 consent, may be the subject of a motion by a social services official to
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13786-01-4
S. 6815 2
1 reenter foster care in accordance with the provisions of section one
2 thousand ninety-one of this act.
3 § 3. Section 1088 of the family court act, as amended by chapter 605
4 of the laws of 2011, is amended to read as follows:
5 § 1088. Continuing court jurisdiction. (a) If a child is placed pursu-
6 ant to section three hundred fifty-eight-a, three hundred eighty-four,
7 or three hundred eighty-four-a of the social services law, or pursuant
8 to section one thousand seventeen, one thousand twenty-two, one thousand
9 twenty-seven, one thousand fifty-two, one thousand eighty-nine, one
10 thousand ninety-one, one thousand ninety-four or one thousand ninety-
11 five of this act, or directly placed with a relative pursuant to section
12 one thousand seventeen or one thousand fifty-five of this act; or if the
13 child is freed for adoption pursuant to section six hundred thirty-seven
14 of this act or section three hundred eighty-three-c, three hundred
15 eighty-four or three hundred eighty-four-b of the social services law,
16 the case shall remain on the court's calendar and the court shall main-
17 tain jurisdiction over the case until the child is discharged from
18 placement and all orders regarding supervision, protection or services
19 have expired.
20 (b) The court shall rehear the matter whenever it deems necessary or
21 desirable, or upon motion by any party entitled to notice in proceedings
22 under this article, or by the attorney for the child, and whenever a
23 permanency hearing is required by this article. While the court main-
24 tains jurisdiction over the case, the provisions of section one thousand
25 thirty-eight of this act shall continue to apply.
26 (c) The court shall also maintain jurisdiction over a case for
27 purposes of hearing a motion to permit a former foster care youth [under
28 the age of twenty-one who was discharged from foster care due to a fail-
29 ure to consent to continuation of placement], as defined in subdivision
30 (a) of section one thousand ninety-one of this act, to return to the
31 custody of the [local commissioner of] social services [or other offi-
32 cer, board or department authorized to receive children as public charg-
33 es] district from which the youth was most recently discharged, or, in
34 the case of a child freed for adoption, the authorized agency into whose
35 custody and guardianship the child has been placed.
36 § 4. Section 1091 of the family court act, as added by chapter 342 of
37 the laws of 2010, is amended to read as follows:
38 § 1091. Motion to return to foster care placement. (a) For purposes of
39 this article, "former foster care youth" shall mean a youth under the
40 age of twenty-one who was discharged from foster care on or after
41 attaining the age of eighteen due to a failure to consent to continua-
42 tion in foster care and who had been: (1) placed in foster care with a
43 local social services district pursuant to article three, seven, ten,
44 ten-A or ten-C of this act or section three hundred fifty-eight-a of the
45 social services law; or (2) freed for adoption in accordance with
46 section six hundred thirty-seven of this act or section three hundred
47 eighty-three-c, three hundred eighty-four or three hundred eighty-four-b
48 of the social services law but has not yet been adopted; or (3) the
49 subject of a motion to restore parental rights that has been condi-
50 tionally granted pursuant to paragraph (iii) of subdivision (b) of
51 section six hundred thirty-seven of this act.
52 (b) A motion to return a former foster care youth [under the age of
53 twenty-one, who was discharged from foster care due to a failure to
54 consent to continuation of placement,] to the custody of the [local
55 commissioner of] social services [or other officer, board or department
56 authorized to receive children as public charges] district from which
S. 6815 3
1 the youth was most recently discharged, or, in the case of a child freed
2 for adoption, the social services district or authorized agency into
3 whose custody and guardianship the child has been placed, may be made by
4 such former foster care youth, or by a local social services or, if
5 applicable, an authorized agency official upon the consent of such
6 former foster care youth, if there is a compelling reason for such
7 former foster care youth to return to foster care[; provided however,
8 that the].
9 (c) The court shall not entertain a motion filed after twenty-four
10 months from the date of the first final discharge that occurred on or
11 after the former foster care youth's eighteenth birthday.
12 [(a)] (d) A motion made pursuant to this [section] article by [a] an
13 appropriate local social services official or, in the case of a child
14 freed for adoption, an appropriate local social services official or
15 official of the authorized agency into whose custody and guardianship
16 the child has been placed, shall be made by order to show cause. Such
17 motion shall show by affidavit or other evidence that:
18 (1) the former foster care youth has no reasonable alternative to
19 foster care;
20 (2) the former foster care youth consents to enrollment in and attend-
21 ance at an appropriate educational or vocational program, unless
22 evidence is submitted that such enrollment or attendance is unnecessary
23 or inappropriate, given the particular circumstances of the youth;
24 (3) re-entry into foster care is in the best interests of the former
25 foster care youth; and
26 (4) the former foster care youth consents to the re-entry into foster
27 care.
28 [(b)](e) A motion made pursuant to this [section] article by a former
29 foster care youth shall be made by order to show cause [or] on ten days
30 notice to the social services official or, in the case of a child freed
31 for adoption, the social services official or official of the authorized
32 agency into whose custody and guardianship the child has been placed.
33 Such motion shall show by affidavit or other evidence that:
34 (1) the requirements outlined in paragraphs one, two and three of
35 subdivision [(a)] (d) of this section are met; and
36 (2) (i) the [applicable] appropriate local social services [district]
37 official or, if applicable, official of the authorized agency consents
38 to the re-entry of such former foster care youth, or [if]
39 (ii) the [applicable] appropriate local social services [district]
40 official or, if applicable, official of the authorized agency refuses to
41 consent to the re-entry of such former foster care youth and [that] such
42 refusal is unreasonable.
43 [(c)](f) (1) If at any time during the pendency of a proceeding
44 brought pursuant to this [section] article, the court finds a compelling
45 reason that it is in the best interests of the former foster care youth
46 to be returned immediately to the custody of the appropriate local
47 commissioner of social services or [other officer, board or department
48 authorized to receive children as public charges], in the case of a
49 child freed for adoption, the appropriate local commissioner of social
50 services or authorized agency into whose custody and guardianship the
51 child has been placed, pending a final decision on the motion, the court
52 may issue a temporary order returning the youth to the custody of [the]
53 such local commissioner of social services or [other officer, board or
54 department authorized to receive children as public charges], if appli-
55 cable, such authorized agency.
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1 (2) Where the appropriate local social services district or, if appli-
2 cable, the authorized agency, has refused to consent to the re-entry of
3 a former foster care youth, and where it is alleged pursuant to subpara-
4 graph (ii) of paragraph two of subdivision [(b)] (e) of this section,
5 that such refusal [by such social services district] is unreasonable,
6 the court shall grant a motion made pursuant to subdivision [(b)](e) of
7 this section if the court finds and states in writing that the refusal
8 [by the local social services district] is unreasonable. For purposes
9 of this [section] article, a court shall find that a refusal [by a local
10 social services district] to allow a former foster care youth to re-en-
11 ter care is unreasonable if:
12 (i) the youth has no reasonable alternative to foster care;
13 (ii) the youth consents to enrollment in and attendance at an appro-
14 priate educational or vocational program, unless the court finds a
15 compelling reason that such enrollment or attendance is unnecessary or
16 inappropriate, given the particular circumstances of the youth; and
17 (iii) re-entry into foster care is in the best interests of the former
18 foster care youth.
19 (3) Upon making a determination on a motion filed pursuant to this
20 [section] article, where a motion has previously been granted pursuant
21 to this [section] article, in addition to the applicable findings
22 required by this [section] article, the court shall grant the motion to
23 return a former foster care youth to the custody of the appropriate
24 local commissioner of social services or [other officer, board or
25 department authorized to receive children as public charges] if applica-
26 ble, the authorized agency only:
27 (i) upon a finding that there is a compelling reason for such former
28 foster care youth to return to care;
29 (ii) if the court has not previously granted a subsequent motion for
30 such former foster care youth to return to care pursuant to this para-
31 graph; and
32 (iii) upon consideration of the former foster care youth's compliance
33 with previous orders of the court, including the youth's previous
34 participation in an appropriate educational or vocational program, if
35 applicable.
36 § 5. Subparagraph (E) of paragraph (i) of subdivision (b) of section
37 1055 of the family court act, as amended by chapter 342 of the laws of
38 2010, is amended to read as follows:
39 (E) where the permanency goal is return to the parent and it is antic-
40 ipated that the child may be finally discharged to his or her parent
41 before the next scheduled permanency hearing, the court may provide the
42 local social services district with authority to finally discharge the
43 child to the parent without further court hearing, provided that ten
44 days prior written notice is served upon the court and the attorney for
45 the child. If the court on its own motion or the attorney for the child
46 on motion to the court does not request the matter to be brought for
47 review before final discharge, no further permanency hearings will be
48 required. The local social services district may also discharge the
49 child on a trial basis to the parent unless the court has prohibited
50 such trial discharge or unless the court has conditioned such trial
51 discharge on another event. For the purposes of this section, trial
52 discharge shall mean that the child is physically returned to the parent
53 while the child remains in the care and custody of the local social
54 services district. Permanency hearings shall continue to be held for any
55 child who has returned to his or her parents on a trial discharge. Where
56 the permanency goal for a youth aging out of foster care is another
S. 6815 5
1 planned permanent living arrangement that includes a significant
2 connection to an adult willing to be a permanency resource for the
3 youth, the local social services district may also discharge the youth
4 on a trial basis to the planned permanent living arrangements, unless
5 the court has prohibited or otherwise conditioned such a trial
6 discharge. Trial discharge for a youth aging out of foster care shall
7 mean that a youth is physically discharged but the local social services
8 district retains care and custody or custody and guardianship of the
9 youth and there remains a date certain for the scheduled permanency
10 hearing. Trial discharge for a youth aging out of foster care may be
11 extended at each scheduled permanency hearing, until the child reaches
12 the age of twenty-one, if a child over the age of eighteen consents to
13 such extension. Prior to finally discharging a youth aging out of foster
14 care to another planned permanent living arrangement, the local social
15 services official shall give the youth notice of the right to apply to
16 reenter foster care within the earlier of twenty-four months of the
17 final discharge or the youth's twenty-first birthday in accordance with
18 article ten-B of this act. Such notice shall also advise the youth that
19 reentry into foster care will only be available where the former foster
20 care youth has no reasonable alternative to foster care and consents to
21 enrollment in and attendance at an appropriate educational or vocational
22 program in accordance with paragraph two of subdivision [(a)] (d) of
23 section one thousand ninety-one of this act. Children placed under this
24 section shall be placed until the court completes the initial permanency
25 hearing scheduled pursuant to article ten-A of this act. Should the
26 court determine pursuant to article ten-A of this act that placement
27 shall be extended beyond completion of the scheduled permanency hearing,
28 such extended placement and any such successive extensions of placement
29 shall expire at the completion of the next scheduled permanency hearing,
30 unless the court shall determine, pursuant to article ten-A of this act,
31 to continue to extend such placement.
32 § 6. Subdivision (e) of section 1055 of the family court act, as
33 amended by chapter 342 of the laws of 2010, is amended to read as
34 follows:
35 (e) No placement may be made or continued under this section beyond
36 the child's eighteenth birthday without his or her consent and in no
37 event past his or her twenty-first birthday. However, a former foster
38 care youth under the age of twenty-one who was previously discharged
39 from foster care due to a failure to consent to continuation of place-
40 ment may make a motion pursuant to section one thousand ninety-one of
41 this act to return to the custody of the local commissioner of social
42 services or other officer, board or department authorized to receive
43 children as public charges. In such motion, the youth must consent to
44 enrollment in and attendance at a vocational or educational program in
45 accordance with paragraph two of subdivision [(a)] (d) of section one
46 thousand ninety-one of this act.
47 § 7. Clause (C) of subparagraph (viii) of paragraph 2 of subdivision
48 (d) of section 1089 of the family court act, as amended by chapter 342
49 of the laws of 2010, is amended to read as follows:
50 (C) Where the permanency goal is return to parent and it is antic-
51 ipated that the child may be returned home before the next scheduled
52 permanency hearing, the court may provide the local social services
53 district with authority to finally discharge the child to the parent
54 without further court hearing, provided that ten days prior written
55 notice is served upon the court and attorney for the child. If the court
56 on its own motion or the attorney for the child on motion to the court
S. 6815 6
1 does not request the matter to be brought for review before final
2 discharge, no further permanency hearings will be required. The local
3 social services district may also discharge the child on a trial basis
4 to the parent unless the court has prohibited such trial discharge or
5 unless the court has conditioned such trial discharge on another event.
6 For the purposes of this section, trial discharge shall mean that the
7 child is physically returned to the parent while the child remains in
8 the care and custody of the local social services district. Permanency
9 hearings shall continue to be held for any child who has returned to his
10 or her parents on a trial discharge. Where the permanency goal for a
11 youth aging out of foster care is another planned permanent living
12 arrangement that includes a significant connection to an adult willing
13 to be a permanency resource for the youth, the local social services
14 district may also discharge the youth on a trial basis to the planned
15 permanent living arrangements, unless the court has prohibited or other-
16 wise conditioned such a trial discharge. Trial discharge for a youth
17 aging out of foster care shall mean that the youth is physically
18 discharged but the local social services district retains care and
19 custody or custody and guardianship of the child and there remains a
20 date certain for the scheduled permanency hearing. Trial discharge for a
21 youth aging out of foster care may be extended at each scheduled perman-
22 ency hearing, until the youth reaches the age of twenty-one, if a youth
23 over the age of eighteen consents to such extension. Prior to finally
24 discharging a youth aging out of foster care to another planned perma-
25 nent living arrangement, the local social services official shall give
26 the youth notice of the right to apply to reenter foster care within the
27 earlier of twenty-four months of the final discharge or the youth's
28 twenty-first birthday in accordance with article ten-B of this act. Such
29 notice shall also advise the youth that reentry into foster care will
30 only be available where the former foster care youth has no reasonable
31 alternative to foster care and consents to enrollment in and attendance
32 at an appropriate educational or vocational program in accordance with
33 paragraph two of subdivision [(a)] (d) of section one thousand ninety-
34 one of this act.
35 § 8. Subparagraph (E) of paragraph (i) of subdivision (b) of section
36 1055 of the family court act, as amended by chapter 41 of the laws of
37 2010, is REPEALED.
38 § 9. Clause (C) of subparagraph (viii) of paragraph 2 of subdivision
39 (d) of section 1089 of the family court act, as amended by chapter 41 of
40 the laws of 2010, is REPEALED.
41 § 10. This act shall take effect immediately.
REPEAL NOTE: The amendments made to subparagraph (E) of paragraph (i)
of subdivision (b) of section 1055 and to clause (C) of subparagraph
(viii) of paragraph 2 of subdivision (d) of section 1089 of the family
court act by sections 67 and 80, respectively, by chapter 41 of the laws
of 2010 substitute "child's attorney" for "law guardian" but do not
contain the amendments contained in chapter 342 of the laws of 2010.
Chapter 342 of the laws of 2010 uses the equivalent phrase "attorney for
the child."