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A08504 Summary:

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A08504 Floor Votes:

A08504 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8504
 
                               2009-2010 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 26, 2009
                                       ___________
 
        Introduced  by  M.  of  A.  SCARBOROUGH, COOK, JAFFEE, BARRON, ROBINSON,
          N. RIVERA, TITUS -- Multi-Sponsored by --  M.  of  A.  COLTON,  GALEF,
          JOHN,  TITONE,  TOWNS,  WRIGHT  --  (at request of the Office of Court
          Administration) -- read once and referred to the Committee on Children
          and Families
 

        AN ACT to amend the family court act and the  social  services  law,  in
          relation  to  trial  discharges  of youth in foster care and voluntary
          re-placements of older adolescents in foster care
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Subparagraph  (E) of paragraph (i) of subdivision (b) and
     2  subdivision (e) of section 1055 of the family court act,  paragraph  (i)
     3  of subdivision (b) as amended and subdivision (e) as relettered by chap-
     4  ter 437 of the laws of 2006 and subdivision (e) as amended by section 18
     5  of  part  A  of  chapter  3  of the laws of 2005, are amended to read as
     6  follows:
     7    (E) where the permanency goal is return to the parent and it is antic-
     8  ipated that the child may be finally discharged to  his  or  her  parent

     9  before  the next scheduled permanency hearing, the court may provide the
    10  local social services district with authority to finally  discharge  the
    11  child  to  the  parent  without further court hearing, provided that ten
    12  days prior written notice is served upon the court  and  [law  guardian]
    13  the  attorney  for the child. If the court on its own motion or the [law
    14  guardian] attorney for the child on motion to the court does not request
    15  the matter to be brought for review before final discharge,  no  further
    16  permanency  hearings  will  be  required.    The  local  social services
    17  district may also discharge the child on a trial  basis  to  the  parent
    18  unless the court has prohibited such trial discharge or unless the court
    19  has  conditioned such trial discharge on another event. For the purposes

    20  of this section, trial discharge shall mean that the child is physically
    21  returned to the parent while the child remains in the care  and  custody
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
        A                                                          LBD10486-03-9
        A. 8504                             2
 
     1  of  the  local  social  services  district.    Permanency hearings shall
     2  continue to be held for any child who has returned to his or her parents
     3  on a trial discharge. Where the permanency  goal  for  a  [child]  youth
     4  aging out of foster care is another planned permanent living arrangement
     5  that  includes  a  significant  connection  to  an adult willing to be a

     6  permanency resource for the [child] youth,  the  local  social  services
     7  district  may  also  discharge the [child] youth on a trial basis to the
     8  planned permanent living arrangements, unless the court  has  prohibited
     9  or  otherwise  conditioned such a trial discharge. Trial discharge for a
    10  [child] youth aging out of foster care shall mean that a  [child]  youth
    11  is  physically discharged but the local social services district retains
    12  care and custody or custody and guardianship of the  [child]  youth  and
    13  there  remains  a  date  certain  for  the scheduled permanency hearing.
    14  Trial discharge for a youth aging out of foster care may be extended  at
    15  each  scheduled  permanency  hearing, until the child reaches the age of

    16  twenty-one, if a child over the age of eighteen consents to such  exten-
    17  sion.  Prior  to finally discharging a youth aging out of foster care to
    18  another planned permanent living arrangement, the local social  services
    19  official  shall  give  the youth notice of the right to apply to reenter
    20  foster care within the  earlier  of  twenty-four  months  of  the  final
    21  discharge  or the youth's twenty-first birthday in accordance with arti-
    22  cle ten-B of this act.  Such notice shall also  advise  the  youth  that
    23  reentry  into foster care will only be available where the former foster
    24  care youth has no reasonable alternative to foster care and consents  to
    25  enrollment in and attendance at an appropriate educational or vocational

    26  program  in  accordance with paragraph two of subdivision (a) of section
    27  one thousand ninety-one of this act. Children placed under this  section
    28  shall be placed until the court completes the initial permanency hearing
    29  scheduled pursuant to article ten-A of this act. Should the court deter-
    30  mine  pursuant  to  article  ten-A  of  this act that placement shall be
    31  extended beyond completion of the  scheduled  permanency  hearing,  such
    32  extended placement and any such successive extensions of placement shall
    33  expire  at  the  completion  of  the  next scheduled permanency hearing,
    34  unless the court shall determine, pursuant to article ten-A of this act,
    35  to continue to extend such placement.
    36    (e) No placement may be made or continued under  this  section  beyond
    37  the  child's  eighteenth  birthday  without his or her consent and in no

    38  event past his or her twenty-first birthday. However,  a  former  foster
    39  care  youth  under  the  age of twenty-one who was previously discharged
    40  from foster care due to a failure to consent to continuation  of  place-
    41  ment  may  make  a motion pursuant to section one thousand ninety-one of
    42  this act to return to the custody of the local  commissioner  of  social
    43  services  or  other  officer,  board or department authorized to receive
    44  children as public charges. In such motion, the youth  must  consent  to
    45  enrollment  in  and attendance at a vocational or educational program in
    46  accordance with paragraph two of subdivision (a) of section one thousand
    47  ninety-one of this act.
    48    § 2. Subdivision (a) of section 1087 of the family court act, as added

    49  by section 27 of part A of chapter 3 of the laws of 2005, is amended  to
    50  read as follows:
    51    (a)  "Child"  shall  mean  a  person  under the age of eighteen who is
    52  placed in foster care pursuant to section three  hundred  fifty-eight-a,
    53  three  hundred  eighty-four or three hundred eighty-four-a of the social
    54  services law or pursuant to section one thousand twenty-two,  one  thou-
    55  sand  twenty-seven,  or  one thousand fifty-two of this act; or directly
    56  placed with a relative pursuant to section one thousand seventeen or one
        A. 8504                             3
 
     1  thousand fifty-five of this act; or who has been freed for adoption or a
     2  person between the ages of eighteen and twenty-one who has consented  to
     3  continuation  in  foster  care  or  trial  discharge status; or a former

     4  foster  care  youth  under  the  age  of twenty-one for whom a court has
     5  granted a motion to permit the former foster care youth to return to the
     6  custody of the local commissioner of social services or  other  officer,
     7  board or department authorized to receive children as public charges.
     8    §  3.  Section 1088 of the family court act, as added by section 27 of
     9  part A of chapter 3 of the laws of 2005, is amended to read as follows:
    10    § 1088. Continuing court jurisdiction. If a child is  placed  pursuant
    11  to  section  three  hundred fifty-eight-a, three hundred eighty-four, or
    12  three hundred eighty-four-a of the social services law, or  pursuant  to
    13  section  one  thousand  seventeen, one thousand twenty-two, one thousand
    14  twenty-seven or one thousand fifty-two of this act, or  directly  placed

    15  with  a relative pursuant to section one thousand seventeen or one thou-
    16  sand fifty-five of this act; or if  the  child  is  freed  for  adoption
    17  pursuant  to section three hundred eighty-three-c, three hundred eighty-
    18  four or three hundred eighty-four-b of the social services law, the case
    19  shall remain on the court's calendar and the court shall maintain juris-
    20  diction over the case until the child is discharged from  placement  and
    21  all  orders  regarding supervision, protection or services have expired.
    22  The court shall rehear the matter whenever it deems necessary or desira-
    23  ble, or upon motion by any party entitled to notice in proceedings under
    24  this article, or by the [law guardian] attorney for the child, and when-
    25  ever a permanency hearing is required by this article. While  the  court
    26  maintains  jurisdiction  over  the  case,  the provisions of section one

    27  thousand thirty-eight of this act shall continue to apply.    The  court
    28  shall  also  maintain jurisdiction over a case for purposes of hearing a
    29  motion to permit a former foster care youth under the age of  twenty-one
    30  who  was  discharged  from  foster  care  due to a failure to consent to
    31  continuation of placement to return to the custody of the local  commis-
    32  sioner  of social services or other officer, board or department author-
    33  ized to receive children as public charges.
    34    § 4. Paragraph 1 of subdivision (a) of  section  1089  of  the  family
    35  court  act, as added by section 27 of part A of chapter 3 of the laws of
    36  2005, is amended to read as follows:
    37    (1) Children freed for adoption.  (i) At the conclusion of the  dispo-

    38  sitional hearing at which the child was freed for adoption in a proceed-
    39  ing  pursuant  to  section  three  hundred eighty-three-c, three hundred
    40  eighty-four or three hundred eighty-four-b of the social  services  law,
    41  the court shall set a date certain for the initial freed child permanen-
    42  cy  hearing  and advise all parties in court of the date set, except for
    43  the respondent or respondents. The permanency hearing shall be commenced
    44  no later than thirty days after the hearing at which the child was freed
    45  and shall be completed within thirty days, unless the  court  determines
    46  to  hold the permanency hearing immediately upon completion of the hear-
    47  ing at which the child was freed,  provided  adequate  notice  has  been
    48  given.
    49    (ii) At the conclusion of the hearing pursuant to section one thousand

    50  ninety-one  of  this  act  where  the court has granted the motion for a
    51  former foster care youth who was discharged from foster care  due  to  a
    52  failure to consent to continuation of placement to return to the custody
    53  of  the local commissioner of social services or other officer, board or
    54  department authorized to receive children as public charges,  the  court
    55  shall set a date certain for a permanency hearing and advise all parties
    56  in  court  of the date set. The permanency hearing shall be commenced no
        A. 8504                             4
 
     1  later than thirty days after the hearing at which the former foster care
     2  youth was returned to foster care.
     3    §  5.  Subparagraph  (ii) of paragraph 2 of subdivision (d) of section

     4  1089 of the family court act, as added by section 27 of part A of  chap-
     5  ter 3 of the laws of 2005, is amended to read as follows:
     6    (ii) placing the child in the custody of a fit and willing relative or
     7  other  suitable  person,  or continuing the placement of the child until
     8  the completion of the next permanency hearing, provided,  however,  that
     9  no  placement  may  be  continued  under this section beyond the child's
    10  eighteenth birthday without his or her consent and in no event past  the
    11  child's  twenty-first  birthday; provided, however, that a former foster
    12  youth who was previously discharged from foster care due to a failure to
    13  consent to continuation of placement may be returned to the  custody  of
    14  the  local  commissioner  of  social services or other officer, board or

    15  department authorized to receive children as public charges if the court
    16  has granted the motion of the former foster care youth or  local  social
    17  services official upon a finding that the youth has no reasonable alter-
    18  native  to foster care and has consented to enrollment in and attendance
    19  at a vocational or educational program in accordance  with  section  one
    20  thousand ninety-one of this act;
    21    §  6.  Clause (C) of subparagraph (viii) of paragraph 2 of subdivision
    22  (d) of section 1089 of the family court act, as amended by  chapter  437
    23  of the laws of 2006, is amended to read as follows:
    24    (C)  Where  the  permanency  goal is return to parent and it is antic-
    25  ipated that the child may be returned home  before  the  next  scheduled
    26  permanency  hearing,  the  court  may  provide the local social services

    27  district with authority to finally discharge the  child  to  the  parent
    28  without  further  court  hearing,  provided  that ten days prior written
    29  notice is served upon the court and  [law  guardian]  attorney  for  the
    30  child. If the court on its own motion or the [law guardian] attorney for
    31  the  child  on  motion  to  the  court does not request the matter to be
    32  brought for review before final discharge, no further  permanency  hear-
    33  ings  will  be  required.  The  local  social services district may also
    34  discharge the child on a trial basis to the parent unless the court  has
    35  prohibited such trial discharge or unless the court has conditioned such
    36  trial  discharge  on  another  event.  For the purposes of this section,
    37  trial discharge shall mean that the child is physically returned to  the

    38  parent  while  the  child  remains  in the care and custody of the local
    39  social services district. Permanency hearings shall continue to be  held
    40  for  any  child  who  has  returned  to  his  or  her parents on a trial
    41  discharge. Where the permanency goal for a [child] youth  aging  out  of
    42  foster  care  is  another  planned  permanent  living  arrangement  that
    43  includes a significant connection to an adult willing to be a permanency
    44  resource for the [child] youth, the local social services  district  may
    45  also  discharge the [child] youth on a trial basis to the planned perma-
    46  nent living arrangements, unless the court has prohibited  or  otherwise
    47  conditioned  such a trial discharge. Trial discharge for a [child] youth

    48  aging out of foster care shall mean that [a child] the  youth  is  phys-
    49  ically  discharged  but  the local social services district retains care
    50  and custody or custody and guardianship of the child and there remains a
    51  date certain for the scheduled permanency hearing.  Trial discharge  for
    52  a  youth  aging  out  of  foster  care may be extended at each scheduled
    53  permanency hearing, until the youth reaches the age of twenty-one, if  a
    54  youth  over  the  age  of  eighteen consents to such extension. Prior to
    55  finally discharging a youth aging out of foster care to another  planned
    56  permanent  living  arrangement, the local social services official shall
        A. 8504                             5
 

     1  give the youth notice of the right to apply to reenter foster care with-
     2  in the earlier of twenty-four months  of  the  final  discharge  or  the
     3  youth's  twenty-first  birthday in accordance with article ten-B of this
     4  act.  Such  notice  shall also advise the youth that reentry into foster
     5  care will only be available where the former foster care  youth  has  no
     6  reasonable  alternative to foster care and consents to enrollment in and
     7  attendance at  an  appropriate  educational  or  vocational  program  in
     8  accordance with paragraph two of subdivision (a) of section one thousand
     9  ninety-one of this act.
    10    § 7. Subdivision (a) of section 1090 of the family court act, as added
    11  by  section 27 of part A of chapter 3 of the laws of 2005, is amended to
    12  read as follows:

    13    (a) If [a law guardian] an attorney for the child has  been  appointed
    14  by  the  family  court in a proceeding pursuant to section three hundred
    15  fifty-eight-a, three hundred eighty-three-c, three hundred  eighty-four,
    16  or  three  hundred  eighty-four-b of the social services law, or article
    17  ten of this act, the appointment of the [law  guardian]  attorney  shall
    18  continue  without  further  court  order  or appointment, unless another
    19  appointment of [a law guardian] an attorney has been made by the  court,
    20  until  the  child  is discharged from placement and all orders regarding
    21  supervision, protection or services have expired.   The  attorney  shall
    22  also  represent  the  child  without further order or appointment in any

    23  proceedings under article ten-B of this act. All  notices,  reports  and
    24  motions  required by law shall be provided to such [law guardian] attor-
    25  ney. The [law guardian] attorney may be relieved of his or her represen-
    26  tation upon application to the court for termination of the appointment.
    27  Upon approval of the application, the court  shall  immediately  appoint
    28  another  [law  guardian]  attorney  to  whom  all  notices, reports, and
    29  motions required by law shall be provided.
    30    § 8. The family court act is amended by adding a new article  10-B  to
    31  read as follows:
    32                                 ARTICLE 10-B
    33                FORMER FOSTER CARE YOUTH RE-ENTRY PROCEEDINGS
    34  Section 1091. Motion to return to foster care placement.

    35    § 1091.  Motion to return to foster care placement. A motion to return
    36  a  former  foster  care  youth  under  the  age  of  twenty-one, who was
    37  discharged from foster care due to a failure to consent to  continuation
    38  of  placement,  to  the  custody  of  the  local  commissioner of social
    39  services or other officer, board or  department  authorized  to  receive
    40  children  as  public  charges,  may  be  made by such former foster care
    41  youth, or by a local social services official upon the consent  of  such
    42  former  foster  care  youth,  if  there  is a compelling reason for such
    43  former foster care youth to return to  foster  care;  provided  however,
    44  that  the  court  shall  not  entertain a motion filed after twenty-four

    45  months from the date of the first final discharge that  occurred  on  or
    46  after the former foster care youth's eighteenth birthday.
    47    (a)  A motion made pursuant to this section by a social services offi-
    48  cial shall be made by order to show cause. Such  motion  shall  show  by
    49  affidavit or other evidence that:
    50    (1)  the  former  foster  care  youth has no reasonable alternative to
    51  foster care;
    52    (2) the former foster care youth consents to enrollment in and attend-
    53  ance  at  an  appropriate  educational  or  vocational  program,  unless
    54  evidence  is submitted that such enrollment or attendance is unnecessary
    55  or inappropriate, given the particular circumstances of the youth;

        A. 8504                             6
 
     1    (3) re-entry into foster care is in the best interests of  the  former
     2  foster care youth; and
     3    (4)  the former foster care youth consents to the re-entry into foster
     4  care.
     5    (b) A motion made pursuant to this section by  a  former  foster  care
     6  youth  shall  be  made  by order to show cause or ten days notice to the
     7  social services official. Such motion shall show by affidavit  or  other
     8  evidence that:
     9    (1)  the  requirements  outlined  in  paragraphs one, two and three of
    10  subdivision (a) of this section are met; and
    11    (2) the applicable local social  services  district  consents  to  the
    12  re-entry  of  such  former foster care youth, or if the applicable local

    13  social services district refuses to consent  to  the  re-entry  of  such
    14  former foster care youth and that such refusal is unreasonable.
    15    (c)  (1)  If  at  any time during the pendency of a proceeding brought
    16  pursuant to this section the court finds a compelling reason that it  is
    17  in  the  best  interests  of the former foster care youth to be returned
    18  immediately to the custody of the local commissioner of social  services
    19  or  other officer, board or department authorized to receive children as
    20  public charges pending a final decision on the  motion,  the  court  may
    21  issue  a temporary order returning the youth to the custody of the local
    22  commissioner of social services or other officer,  board  or  department

    23  authorized to receive children as public charges.
    24    (2) Where the local social services district has refused to consent to
    25  the  re-entry  of  a  former  foster care youth, and where it is alleged
    26  pursuant to paragraph two of subdivision (b) of this section, that  such
    27  refusal  by  such  social  services  district is unreasonable, the court
    28  shall grant a motion made pursuant to subdivision (b) of this section if
    29  the court finds and states in writing that  the  refusal  by  the  local
    30  social  services district is unreasonable. For purposes of this section,
    31  a court shall find that a refusal by a local social services district to
    32  allow a former foster care youth to re-enter care is unreasonable if:

    33    (i) the youth has no reasonable alternative to foster care;
    34    (ii) the youth consents to enrollment in and attendance at  an  appro-
    35  priate  educational  or  vocational  program,  unless  the court finds a
    36  compelling reason that such enrollment or attendance is  unnecessary  or
    37  inappropriate, given the particular circumstances of the youth; and
    38    (iii) re-entry into foster care is in the best interests of the former
    39  foster youth.
    40    (3)  Upon  making  a  determination on a motion filed pursuant to this
    41  section, where a motion has previously been  granted  pursuant  to  this
    42  section,  in  addition  to  the  applicable  findings  required  by this
    43  section, the court shall grant the motion to return a former foster care

    44  youth to the custody of the local commissioner  of  social  services  or
    45  other  officer,  board  or  department authorized to receive children as
    46  public charges only:
    47    (i) upon a finding that there  is a compelling reason for such  former
    48  foster care youth to return to care;
    49    (ii)  if  the court has not previously granted a subsequent motion for
    50  such former foster care youth to return to care pursuant to  this  para-
    51  graph; and
    52    (iii)  upon consideration of the former foster care youth's compliance
    53  with previous orders  of  the  court,  including  the  youth's  previous
    54  participation  in  an  appropriate educational or vocational program, if
    55  applicable.

        A. 8504                             7
 
     1    § 9. Paragraph (d) of subdivision 3  of  section  371  of  the  social
     2  services  law, as amended by chapter 722 of the laws of 1978, is amended
     3  and a new paragraph (e) is added to read as follows:
     4    (d) a person under the age of eighteen who is without a place of shel-
     5  ter where supervision and care are available[.], or
     6    (e)  a  former  foster  care youth under the age of twenty-one who was
     7  previously placed in the care and custody or custody and guardianship of
     8  the local commissioner of social services or  other  officer,  board  or
     9  department authorized to receive children as public charges, and who was
    10  discharged  from foster care due to a failure to consent to continuation

    11  in placement, who has returned to foster care pursuant  to  section  one
    12  thousand ninety-one of the family court act.
    13    §  10.  Subparagraph  (i) of paragraph (a) of subdivision 1 of section
    14  409-a of the social services law, as amended by chapter 87 of  the  laws
    15  of 1993, is amended to read as follows:
    16    (i)  the child will be placed, returned to or continued in foster care
    17  unless such services are provided and that it is reasonable  to  believe
    18  that by providing such services the child will be able to remain with or
    19  be  returned  to  his  or her family, and for a former foster care youth
    20  under the age of twenty-one who was previously placed in  the  care  and
    21  custody  or custody and guardianship of the local commissioner of social

    22  services or other officer, board or  department  authorized  to  receive
    23  children  as  public  charges  where it is reasonable to believe that by
    24  providing such services the former foster care youth will avoid a return
    25  to foster care or
    26    § 11. This act shall take effect on the ninetieth day after  it  shall
    27  have become a law.