Relates to implementation of the federal Fostering Connections to Success and Increasing Adoptions Act of 2008 with respect to subsidized kinship guardianship, educational stability, transition plans and sibling visitation and contact.
STATE OF NEW YORK
________________________________________________________________________
3867
2009-2010 Regular Sessions
IN SENATE
April 2, 2009
___________
Introduced by Sen. MONTGOMERY -- (at request of the Office of Court
Administration) -- 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, the surrogate's court procedure
act and the social services law, in relation to implementation of the
federal Fostering Connections to Success and Increasing Adoptions Act
of 2008 with respect to subsidized kinship guardianship, educational
stability, transition plans and sibling visitation and contact
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 661 of the family court act is amended by adding a
2 new subdivision (c) to read as follows:
3 (c) Subsidized kinship guardianship of a child. Where the permanency
4 goal for a child who is the subject of a proceeding pursuant to article
5 ten or ten-A of this act is referral for subsidized legal guardianship
6 with a fit and willing relative, a petition under this article filed by
7 such relative shall be filed with the court before whom the most recent
8 proceeding pursuant to article ten or ten-A of this act is pending. The
9 court presiding over the proceeding pursuant to article ten or ten-A may
10 consolidate the hearing of a guardianship petition filed by such rela-
11 tive with the dispositional hearing pursuant to article ten or permanen-
12 cy hearing pursuant to article ten-A, as applicable. The court must make
13 and set forth in its order appointing the guardian the findings enumer-
14 ated in section one thousand fifty-five-c or one thousand eighty-nine-b
15 of this act, as applicable. Such an order of subsidized guardianship may
16 only be issued upon the consent of the prospective relative guardian,
17 the attorney for the child, the local department of social services and,
18 in the case of a youth eighteen years of age or older, the youth to the
19 issuance of an order of subsidized kinship guardianship. Youth fourteen
20 years of age or older must be consulted regarding the guardianship. An
21 order of subsidized kinship guardianship may only be issued once the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10165-01-9
S. 3867 2
1 local department of social services and the prospective relative guardi-
2 an have entered into a written, binding kinship guardianship assistance
3 agreement, a copy of which has been provided by the local department of
4 social services to the prospective relative guardian. The court shall
5 provide in its order appointing a subsidized kinship guardian that the
6 local department of social services and the attorney for the child must
7 receive notice of and be made parties to any subsequent proceeding to
8 vacate or modify the order of guardianship.
9 § 2. Subdivision (a) and subparagraph (A) of paragraph (i) of subdivi-
10 sion (b) of section 1052 of the family court act, subdivision (a) as
11 amended by chapter 519 of the laws of 2008, subparagraph (A) of para-
12 graph (i) of subdivision (b) as amended by chapter 7 of the laws of
13 1999, the opening paragraph and clause 7 as amended by section 7 of part
14 B of chapter 327 of the laws of 2007 and the closing paragraph as
15 amended by chapter 671 of the laws of 2005, are amended to read as
16 follows:
17 (a) At the conclusion of a dispositional hearing under this article,
18 the court shall enter an order of disposition directing one or more of
19 the following:
20 (i) suspending judgment in accord with section one thousand fifty-
21 three of this part; or
22 (ii) releasing the child to the custody of his parents or other person
23 legally responsible in accord with section one thousand fifty-four of
24 this part; or
25 (iii) placing the child in accord with section one thousand fifty-five
26 of this part; or
27 (iv) making an order of protection in accord with section one thousand
28 fifty-six of this part; or
29 (v) placing the respondent under supervision in accord with section
30 one thousand fifty-seven of this part; or
31 (vi) granting custody of the child to relatives or suitable persons
32 pursuant to section one thousand fifty-five-b of this part; or
33 (vii) granting subsidized guardianship to a fit and willing relative
34 pursuant to section one thousand fifty-five-c of this part.
35 However, the court shall not enter an order of disposition combining
36 placement of the child under paragraph (iii) of this subdivision with a
37 disposition under paragraph (i) or (ii) of this subdivision. An order
38 granting custody of the child pursuant to paragraph (vi) or subsidized
39 guardianship of a child pursuant to paragraph (vii) of this subdivision
40 shall not be combined with any other disposition under this subdivision.
41 (A) whether continuation in the child's home would be contrary to the
42 best interests of the child and where appropriate, that reasonable
43 efforts were made prior to the date of the dispositional hearing held
44 pursuant to this article to prevent or eliminate the need for removal of
45 the child from his or her home and if the child was removed from the
46 home prior to the date of such hearing, that such removal was in the
47 child's best interests and, where appropriate, reasonable efforts were
48 made to make it possible for the child to safely return home. If the
49 court determines that reasonable efforts to prevent or eliminate the
50 need for removal of the child from the home were not made but that the
51 lack of such efforts was appropriate under the circumstances, the court
52 order shall include such a finding, or if the permanency plan for the
53 child is adoption, guardianship or another permanent living arrangement
54 other than reunification with the parent or parents of the child, the
55 court order shall include a finding that reasonable efforts, including
S. 3867 3
1 consideration of appropriate in-state and out-of-state placements, are
2 being made to make and finalize such alternate permanent placement.
3 For the purpose of this section, reasonable efforts to prevent or
4 eliminate the need for removing the child from the home of the child or
5 to make it possible for the child to return safely to the home of the
6 child shall not be required where, upon motion with notice by the social
7 services official, the court determines that:
8 (1) the parent of such child has subjected the child to aggravated
9 circumstances, as defined in subdivision (j) of section one thousand
10 twelve of this article;
11 (2) the parent of such child has been convicted of (i) murder in the
12 first degree as defined in section 125.27 or murder in the second degree
13 as defined in section 125.25 of the penal law and the victim was another
14 child of the parent; or (ii) manslaughter in the first degree as defined
15 in section 125.20 or manslaughter in the second degree as defined in
16 section 125.15 of the penal law and the victim was another child of the
17 parent, provided, however, that the parent must have acted voluntarily
18 in committing such crime;
19 (3) the parent of such child has been convicted of an attempt to
20 commit any of the foregoing crimes, and the victim or intended victim
21 was the child or another child of the parent; or has been convicted of
22 criminal solicitation as defined in article one hundred, conspiracy as
23 defined in article one hundred five or criminal facilitation as defined
24 in article one hundred fifteen of the penal law for conspiring, solicit-
25 ing or facilitating any of the foregoing crimes, and the victim or
26 intended victim was the child or another child of the parent;
27 (4) the parent of such child has been convicted of assault in the
28 second degree as defined in section 120.05, assault in the first degree
29 as defined in section 120.10 or aggravated assault upon a person less
30 than eleven years old as defined in section 120.12 of the penal law, and
31 the commission of one of the foregoing crimes resulted in serious phys-
32 ical injury to the child or another child of the parent;
33 (5) the parent of such child has been convicted in any other jurisdic-
34 tion of an offense which includes all of the essential elements of any
35 crime specified in clause two, three or four of this subparagraph, and
36 the victim of such offense was the child or another child of the parent;
37 or
38 (6) the parental rights of the parent to a sibling of such child have
39 been involuntarily terminated;
40 [unless the court determines that providing reasonable efforts would be
41 in the best interests of the child, not contrary to the health and safe-
42 ty of the child, and would likely result in the reunification of the
43 parent and the child in the foreseeable future. The court shall state
44 such findings in its order.]
45 (7) If the court determines that reasonable efforts are not to be
46 required because of one of the grounds set forth above, a permanency
47 hearing shall be held within thirty days of the finding of the court
48 that such efforts are not required. At the permanency hearing, the court
49 shall determine the appropriateness of the permanency plan prepared by
50 the social services official which shall include whether or when the
51 child: (i) will be returned to the parent; (ii) should be placed for
52 adoption with the social services official filing a petition for termi-
53 nation of parental rights; (iii) should be referred for legal guardian-
54 ship which may include subsidized kinship guardianship; (iv) should be
55 placed permanently with a fit and willing relative; or (v) should be
56 placed in another planned permanent living arrangement that includes a
S. 3867 4
1 significant connection to an adult who is willing to be a permanency
2 resource for the child, if the social services official has documented
3 to the court a compelling reason for determining that it would not be in
4 the best interest of the child to return home, be referred for termi-
5 nation of parental rights and placed for adoption, placed with a fit and
6 willing relative, or placed with a legal guardian. The social services
7 official shall thereafter make reasonable efforts to place the child in
8 a timely manner, including consideration of appropriate in-state and
9 out-of-state placements, and to complete whatever steps are necessary to
10 finalize the permanent placement of the child as set forth in the
11 permanency plan approved by the court. If reasonable efforts are deter-
12 mined by the court not to be required because of one of the grounds set
13 forth in this paragraph, the social services official may file a peti-
14 tion for termination of parental rights in accordance with section three
15 hundred eighty-four-b of the social services law.
16 If the court finds that one of the grounds set forth in this paragraph
17 exist, the court shall find that reasonable efforts are not required
18 unless the court determines that providing reasonable efforts would be
19 in the best interests of the child, would not be contrary to the health
20 and safety of the child and would likely result in the reunification of
21 the parent and child in the foreseeable future. The court shall state
22 such findings in its order.
23 For the purpose of this section, in determining reasonable effort to
24 be made with respect to a child, and in making such reasonable efforts,
25 the child's health and safety shall be the paramount concern.
26 For the purpose of this section, a sibling shall include a half-si-
27 bling;
28 § 3. The family court act is amended by adding a new section 1055-c to
29 read as follows:
30 § 1055-c. Subsidized guardianship with a fit and willing relative. (a)
31 At the conclusion of a dispositional hearing pursuant to this article,
32 where the permanency plan is subsidized guardianship with a fit and
33 willing relative, the court may issue an order of subsidized guardian-
34 ship in response to a petition filed with the court by a relative pursu-
35 ant to article six of this act or article seventeen of the surrogate's
36 court procedure act. If the court grants the guardianship petition, it
37 shall terminate jurisdiction over the child protective proceeding and
38 terminate any pending orders pursuant to this article other than assign-
39 ment of counsel. The court may grant the guardianship petition only if
40 the court makes the following findings and sets forth the findings in
41 its order:
42 (i) that granting subsidized guardianship of the child to the relative
43 is in the best interests of the child and that neither a permanency goal
44 of return to the child's birth parents nor adoption would be in the
45 child's best interests and are therefore not appropriate permanency
46 goals for the child;
47 (ii) that the termination of orders issued pursuant to this article
48 will not jeopardize the safety of the child; and that granting subsi-
49 dized guardianship of the child to the relative will provide the child
50 with a safe and permanent home;
51 (iii) that the child demonstrates a strong attachment to the relative
52 and the relative demonstrates a strong commitment to caring permanently
53 for the child;
54 (iv) that the relative has been approved or certified as a foster
55 parent pursuant to regulations of the office of children and family
S. 3867 5
1 services and has been screened in accordance with section three hundred
2 seventy-eight-a of the social services law;
3 (v) that the child has been in foster care for a period of not less
4 than fourteen months and has been in foster care in the care of the
5 proposed guardian for a period of not less than six consecutive months
6 preceding the filing of the guardianship petition;
7 (vi) that the relative, the attorney for the child and the local
8 department of social services consent to the issuance of an order of
9 subsidized guardianship pursuant to article six of this act or article
10 seventeen of the surrogate's court procedure act and the termination of
11 any orders issued pursuant to this article;
12 (vii) that the local department of social services and the prospective
13 relative guardian have entered into a written binding kinship guardian-
14 ship assistance agreement, a copy of which has been provided by the
15 local department of social services to the prospective relative guardi-
16 an; and
17 (viii) that if the youth is fourteen years of age or older, he or she
18 has indicated his or her position regarding the proposed guardianship
19 either in person or through his or her attorney and if the youth is
20 eighteen years of age or older, he or she has consented to the guardian-
21 ship.
22 (b) As part of the order granting subsidized guardianship to the rela-
23 tive pursuant to article six of this act or article seventeen of the
24 surrogate's court procedure act, the court shall require that the local
25 department of social services and the attorney for the child receive
26 notice of and be made parties to any subsequent proceeding to vacate or
27 modify the order of subsidized guardianship.
28 (c) An order entered pursuant to this section shall result in the
29 termination of any orders in effect pursuant to this article and shall
30 conclude the court's jurisdiction over the proceeding pursuant to this
31 article.
32 § 4. Subdivision (c) of section 1089 of the family court act, as added
33 by section 27 of part A of chapter 3 of the laws of 2005, subparagraphs
34 (ii) and (iii) of paragraph 4 as amended by section 9 and subparagraph
35 (viii) of paragraph 5 as amended by section 10 of part B of chapter 327
36 of the laws of 2007, is amended to read as follows:
37 (c) Content of the permanency hearing report. The permanency hearing
38 report shall include, but need not be limited to, up-to-date and accu-
39 rate information regarding:
40 (1) the child's current permanency goal, which may be:
41 (i) return to the parent or parents;
42 (ii) placement for adoption with the local social services official
43 filing a petition for termination of parental rights;
44 (iii) referral for legal guardianship, which may include subsidized
45 kinship guardianship;
46 (iv) permanent placement with a fit and willing relative; or
47 (v) placement in another planned permanent living arrangement that
48 includes a significant connection to an adult who is willing to be a
49 permanency resource for the child, including documentation of the
50 compelling reason for determining that it would not be in the best
51 interests of the child to be returned home, placed for adoption, placed
52 with a legal guardian, or placed with a fit and willing relative;
53 (2) the health, well-being, and status of the child since the last
54 hearing including:
55 (i) a description of the child's health and well-being;
56 (ii) information regarding the child's current placement;
S. 3867 6
1 (iii) an update on the educational and other progress the child has
2 made since the last hearing including a description of the steps that
3 have been taken by the local social services district or agency to
4 ensure educational stability for the child and to enable prompt delivery
5 of appropriate educational and vocational services to the child, includ-
6 ing, but not [be] limited to:
7 (A) where the child is subject to article sixty-five of the education
8 law or elects to participate in an educational program leading to a high
9 school diploma, the steps that the local social services district or
10 agency has taken to promptly enable the child to be enrolled or to
11 continue enrollment in an appropriate school or educational program
12 leading to a high school diploma;
13 (B) where the child is eligible to be enrolled in a pre-kindergarten
14 program pursuant to section thirty-six hundred two-e of the education
15 law, the steps that the local social services district or agency has
16 taken to promptly enable the child to be enrolled in an appropriate
17 pre-kindergarten program, if available;
18 (C) where the child is under three years of age and is involved in an
19 indicated case of child abuse or neglect, or where the local social
20 services district suspects that the child may have a disability as
21 defined in subdivision five of section twenty-five hundred forty-one of
22 the public health law or if the child has been found eligible to receive
23 early intervention or special educational services prior to or during
24 the foster care placement, in accordance with title two-A of article
25 twenty-five of the public health law or article eighty-nine of the
26 education law, the steps that the local social services district or
27 agency has taken to make any necessary referrals of the child for early
28 intervention, pre-school special educational or special educational
29 evaluations or services, as appropriate, and any available information
30 regarding any evaluations and services which are being provided or are
31 scheduled to be provided in accordance with applicable law; and
32 (D) where the child is at least sixteen and not subject to article
33 sixty-five of the education law and elects not to participate in an
34 educational program leading to a high school diploma, the steps that the
35 local social services district has taken to assist the child to become
36 gainfully employed or enrolled in a vocational program;
37 (iv) a description of the visitation plan or plans describing the
38 persons with whom the child visits, including any siblings, and the
39 frequency, duration and quality of the visits;
40 (v) where a child has attained the age of fourteen, a description of
41 the services and assistance that are being provided to enable the child
42 to learn independent living skills; [and]
43 (vi) where the permanency goal for a child aging out of foster care is
44 another planned permanent living arrangement that includes a significant
45 connection to an adult willing to be a permanency resource for the child
46 and it is anticipated that the child's discharge or trial discharge may
47 occur within the earlier of the next scheduled permanency hearing or one
48 year, a description of the transition plan for the youth and the
49 progress made in developing and implementing the transition plan; and
50 (vii) a description of any other services being provided to the child;
51 (3) the status of the parent, including:
52 (i) the services that have been offered to the parent to enable the
53 child to safely return home;
54 (ii) the steps the parent has taken to use the services;
55 (iii) any barriers encountered to the delivery of such services;
56 (iv) the progress the parent has made toward reunification; and
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1 (v) a description of any other steps the parent has taken to comply
2 with and achieve the permanency [plan] goal, if applicable[.];
3 (4) a description of the reasonable efforts to achieve the child's
4 permanency [plan] goal that have been taken by the local social services
5 district or agency since the last hearing. The description shall
6 include:
7 (i) unless the child is freed for adoption or there has been a deter-
8 mination by a court that such efforts are not required pursuant to
9 section one thousand thirty-nine-b of this act, the reasonable efforts
10 that have been made by the local social services district or agency to
11 eliminate the need for placement of the child and to enable the child to
12 safely return home, including a description of any services that have
13 been provided;
14 (ii) where the permanency [plan] goal is adoption, guardianship
15 (including subsidized kinship guardianship), placement with a fit and
16 willing relative or another planned permanent living arrangement other
17 than return to parent, the reasonable efforts that have been made by the
18 local social services district or agency to make and finalize such
19 alternate permanent placement, including a description of any services
20 that have been provided and a description of the consideration of appro-
21 priate in-state and out-of-state placements;
22 (iii) where return home of the child is not likely, the reasonable
23 efforts that have been made by the local social services district or
24 agency to evaluate and plan for another permanent plan, including
25 consideration of appropriate in-state and out-of-state placements, and
26 any steps taken to further a permanent plan other than return to the
27 child's parent; or
28 (iv) where a child has been freed for adoption, a description of the
29 reasonable efforts that will be taken to facilitate the adoption of the
30 child; and
31 (5) the recommended permanency [plan] goal including:
32 (i) a recommendation regarding whether the child's current permanency
33 goal should be continued or modified, the reasons therefor, and the
34 anticipated date for meeting the goal;
35 (ii) a recommendation regarding whether the child's placement should
36 be extended and the reasons for the recommendation;
37 (iii) any proposed changes in the child's current placement, trial
38 discharge or discharge that may occur before the next permanency hear-
39 ing;
40 (iv) a description of the steps that will be taken by the local social
41 services district or agency to provide for educational stability for the
42 child and to continue to enable prompt delivery of appropriate educa-
43 tional and vocational services to the child in his or her current place-
44 ment and during any potential change in the child's foster care place-
45 ment, during any trial discharge, and after discharge of the child in
46 accordance with the plans for the child's placement until the next
47 permanency hearing;
48 (v) whether any modification to the visitation plan or plans is recom-
49 mended and the reasons therefor, including any plans for visits and/or
50 contacts with siblings;
51 (vi) where a child has attained the age of fourteen or will attain the
52 age of fourteen before the next permanency hearing, a description of the
53 services and assistance that will be provided to enable the child to
54 learn independent living skills;
55 (vii) what steps, if any, will be taken for the development and imple-
56 mentation of a transition plan for any child whose permanency goal is
S. 3867 8
1 another planned permanent living arrangement that includes a significant
2 connection to an adult willing to be a permanency resource for the child
3 and when discharge or trial discharge to such arrangement is anticipated
4 to take place;
5 (viii) where a child has been placed outside this state, whether the
6 out-of-state placement continues to be appropriate, necessary and in the
7 best interests of the child;
8 [(viii)] (ix) where return home of the child is not likely, the
9 efforts that will be made to evaluate or plan for another permanent
10 plan, including consideration of appropriate in-state and out-of-state
11 placements; and
12 [(ix)] (x) in the case of a child who has been freed for adoption:
13 (A) a description of services and assistance that will be provided to
14 the child and the prospective adoptive parent to expedite the adoption
15 of the child;
16 (B) information regarding the child's eligibility for adoption subsidy
17 pursuant to title nine of article six of the social services law; and
18 (C) if the child is over age fourteen and has voluntarily withheld his
19 or her consent to an adoption, the facts and circumstances regarding the
20 child's decision to withhold consent and the reasons therefor.
21 § 5. Subparagraphs (i), (iii), (v) and (vii) of paragraph 2 of subdi-
22 vision (d) of section 1089 of the family court act, as added by section
23 27 of part A of chapter 3 of the laws of 2005, clause (B) of subpara-
24 graph (iii) as amended by section 12 of part B of chapter 327 of the
25 laws of 2007, are amended to read as follows:
26 (i) whether the permanency goal for the child should be approved or
27 modified and the anticipated date for achieving the goal. The permanency
28 goal may be determined to be:
29 (A) return to parent;
30 (B) placement for adoption with the local social services official
31 filing a petition for termination of parental rights;
32 (C) referral for legal guardianship, which may include subsidized
33 kinship guardianship;
34 (D) permanent placement with a fit and willing relative; or
35 (E) placement in another planned permanent living arrangement that
36 includes a significant connection to an adult willing to be a permanency
37 resource for the child if the local social services official has docu-
38 mented to the court a compelling reason for determining that it would
39 not be in the best interests of the child to return home, be referred
40 for termination of parental rights and placed for adoption, placed with
41 a fit and willing relative, or placed with a legal guardian;
42 (iii) determining whether reasonable efforts have been made to effec-
43 tuate the child's permanency [plan] goal as follows:
44 (A) unless the child is freed for adoption or there has been a deter-
45 mination by a court that such efforts are not required pursuant to
46 section one thousand thirty-nine-b of this act, whether reasonable
47 efforts have been made to eliminate the need for placement of the child
48 and to enable the child to safely return home;
49 (B) where the permanency [plan] goal is adoption, guardianship, place-
50 ment with a fit and willing relative or another planned permanent living
51 arrangement other than return to parent, whether reasonable efforts have
52 been made to make and finalize such alternate permanent placement,
53 including consideration of appropriate in-state and out-of-state place-
54 ments;
55 (v) the steps that must be taken by the local social services official
56 or agency to implement the educational and vocational program components
S. 3867 9
1 of the permanency hearing report submitted pursuant to subdivision (c)
2 of this section, including steps to ensure educational stability for the
3 child and any modifications that should be made to such plan;
4 (vii) where placement of the child is extended, such order shall also
5 include:
6 (A) a description of the visitation plan or plans, including any plans
7 for visits and/or contact with the child's siblings;
8 (B) where the child is not freed for adoption, a direction that the
9 child's parent or parents, including any non-respondent parent or other
10 person legally responsible for the child's care shall be notified of the
11 planning conference or conferences to be held pursuant to subdivision
12 three of section four hundred nine-e of the social services law and
13 notification of their right to attend such conference or conferences and
14 their right to have counsel or another representative with them;
15 (C) where the child is not freed for adoption, a direction that the
16 parent or other person legally responsible for the child's care keep the
17 local social services district or agency apprised of his or her current
18 whereabouts and a current mailing address;
19 (D) where the child is not freed for adoption, a notice that if the
20 child remains in foster care for fifteen of the most recent twenty-two
21 months, the local social services district or agency may be required by
22 law to file a petition to terminate parental rights;
23 (E) where a child has been freed for adoption and is over age fourteen
24 and has voluntarily withheld his or her consent to an adoption, the
25 facts and circumstances with regard to the child's decision to withhold
26 consent and the reasons therefor;
27 (F) where a child has been placed outside of this state, whether the
28 out-of-state placement continues to be appropriate, necessary and in the
29 best interests of the child;
30 (G) where a child has or will before the next permanency hearing reach
31 the age of fourteen, the services and assistance necessary to assist the
32 child in learning independent living skills;
33 (H) where the permanency goal for a child aging out of foster care is
34 another planned permanent living arrangement that includes a significant
35 connection to an adult willing to be a permanency resource for the child
36 and it is anticipated that the child's discharge or trial discharge may
37 occur within the earlier of the next scheduled permanency hearing or one
38 year, the local social services district or agency shall be directed to
39 commence development of a transition plan for the child, in consultation
40 with the child and his or her attorney, and shall file the final transi-
41 tion plan with the court and provide copies for the child, his or her
42 attorney and all parties no later than ninety days before the child's
43 anticipated discharge from foster care; and
44 § 6. The family court act is amended by adding a new section 1089-b to
45 read as follows:
46 § 1089-b. Subsidized guardianship with a fit and willing relative. (a)
47 Where the permanency goal is subsidized legal guardianship with a fit
48 and willing relative, the court may issue an order of subsidized guardi-
49 anship in response to a petition filed before the court by a relative
50 pursuant to article six of this act or article seventeen of the surro-
51 gate's court procedure act. The court may consolidate the hearing of the
52 petition with a permanency hearing held pursuant to this article. If the
53 court grants the guardianship petition, the court shall terminate its
54 jurisdiction pursuant to this article and shall terminate all pending
55 orders issued pursuant to this article other than appointment of coun-
S. 3867 10
1 sel. The court may only grant the guardianship petition if it makes the
2 following findings and sets forth the findings in its order:
3 (i) that granting subsidized guardianship of the child to the relative
4 is in the best interests of the child and that neither a permanency goal
5 of return to the child's birth parents nor adoption would be in the
6 child's best interests and therefore would not be appropriate permanency
7 goals for the child;
8 (ii) that the termination of the order placing the child pursuant to
9 this article or article ten of this act will not jeopardize the safety
10 of the child; and that granting subsidized guardianship of the child to
11 the relative will provide the child with a safe and permanent home;
12 (iii) that the child demonstrates a strong attachment to the relative
13 and the relative demonstrates a strong commitment to caring permanently
14 for the child;
15 (iv) that the relative has been approved or certified as a foster
16 parent pursuant to regulations of the office of children and family
17 services and has been screened in accordance with section three hundred
18 seventy-eight-a of the social services law;
19 (v) that the child has been in foster care for a period of not less
20 than fourteen months and has been in foster care in the care of the
21 proposed guardian for a period of not less than six consecutive months
22 preceding the filing of the guardianship petition;
23 (vi) that the relative, the attorney for the child and the local
24 department of social services consent to the issuance of an order of
25 subsidized guardianship pursuant to article six of this act or article
26 seventeen of the surrogate's court procedure act and the termination of
27 the order of placement pursuant to this article or article ten of this
28 act;
29 (vii) that the local department of social services and the prospective
30 relative guardian have entered into a written, binding kinship guardian-
31 ship assistance agreement, a copy of which has been provided by the
32 local department of social services to the prospective relative guardi-
33 an; and
34 (viii) that if the youth is fourteen years of age or older, he or she
35 has indicated his or her position regarding the proposed guardianship
36 either in person or through his or her attorney and if the youth is
37 eighteen years of age or older, he or she has consented to the guardian-
38 ship.
39 (b) As part of the order granting subsidized guardianship to the rela-
40 tive pursuant to article six of this act or article seventeen of the
41 surrogate's court procedure act the court shall require that the local
42 department of social services and the attorney for the child receive
43 notice of and be made parties to any subsequent proceeding to modify the
44 order of guardianship granted pursuant to the guardianship proceeding.
45 (c) An order entered pursuant to this section shall result in the
46 termination of any orders in effect pursuant to this article and shall
47 conclude the court's jurisdiction over the proceeding pursuant to this
48 article or article ten of this act.
49 § 7. Section 1701 of the surrogate's court procedure act, as amended
50 by chapter 404 of the laws of 2008, is amended to read as follows:
51 § 1701. Power of court
52 The court has power over the property of an infant and is authorized
53 and empowered to appoint a guardian of the person or of the property or
54 of both of an infant whether or not the parent or parents of the infant
55 or child are living. Where the guardianship and custody of a child have
56 been committed to an authorized agency pursuant to section six hundred
S. 3867 11
1 thirty-one of the family court act, or section three hundred eighty-
2 three-c, section three hundred eighty-four or section three hundred
3 eighty-four-b of the social services law, or where both parents of the
4 child whose consent to the adoption of the child would have been
5 required pursuant to section one hundred eleven-a of the domestic
6 relations law are dead, the court may appoint a permanent guardian of a
7 child if the court finds that such appointment is in the best interests
8 of the child. Where the court has made findings pursuant to section one
9 thousand fifty-five-c or one thousand eighty-nine-b of the family court
10 act, the family court may appoint a fit and willing relative to be a
11 subsidized kinship guardian of the child.
12 § 8. Section 1702 of the surrogate's court procedure act is amended by
13 adding a new subdivision 3 to read as follows:
14 3. The petition for appointment of a relative as a subsidized kinship
15 guardian of the child shall be filed with the court where the most
16 recent child protective proceeding or permanency hearing is pending.
17 § 9. Subdivision 8 of section 1704 of the surrogate's court procedure
18 act, as added by chapter 404 of the laws of 2008, is amended to read as
19 follows:
20 8. In addition, the petition for appointment of a permanent guardian
21 or subsidized kinship guardian of an infant or child shall include:
22 (a) an assessment to be performed by the local social services
23 district, which shall contain:
24 (i) the full name and address of the person seeking to become the
25 guardian;
26 (ii) the ability of the guardian to assume permanent care of the
27 child;
28 (iii) the child's property and assets, if known;
29 (iv) the wishes of the child, if [appropriate] the child is fourteen
30 years of age or older and his or her consent if he or she is eighteen
31 years of age or older;
32 (v) the results of the criminal history record check with the division
33 of criminal justice services of the guardian and any person eighteen
34 years of age or older residing in the guardian's household conducted by
35 the office of children and family services pursuant to subdivision two
36 of section three hundred seventy-eight-a of the social services law if
37 such a criminal history record check has been completed;
38 (vi) the results of a search of the statewide central register of
39 child abuse and maltreatment records regarding the guardian and any
40 person eighteen years of age or older residing in the guardian's house-
41 hold, including whether such person has been the subject of an indicated
42 report conducted pursuant to subparagraph (e) of paragraph (A) of subdi-
43 vision four of section four hundred twenty-two of the social services
44 law, if such a search has been conducted; and
45 (vii) the results of all inspections and assessments of the guardian's
46 home and the child's progress while placed in the home, if any;
47 (b) in proceedings for the appointment of a permanent guardian or
48 subsidized kinship guardian of a child freed for adoption, a certified
49 copy of the order or orders terminating the parental rights of the
50 child's parents or approving the surrender of the child or, in
51 proceedings for appointment of a permanent guardian where the child's
52 parents are deceased, the death certificates of the child's parents, as
53 applicable;
54 (c) the recommendation of the authorized agency involved, if any;
55 [and]
S. 3867 12
1 (d) the suitability, ability and commitment of the permanent or subsi-
2 dized kinship guardian to assume full legal responsibility for the child
3 and raise the child to adulthood and the degree of attachment of the
4 child to the proposed relative guardian; and
5 (e) in proceedings for the appointment of a subsidized kinship guardi-
6 an:
7 (i) the reasons that granting subsidized guardianship of the child to
8 the relative is in the best interests of the child and that neither a
9 permanency goal of return to the child's birth parents nor adoption
10 would be in the child's best interest and would, therefore, not be
11 appropriate permanency goals for the child;
12 (ii) the reasons that the termination of the order placing the child
13 pursuant to article ten or ten-A of the family court act will not jeop-
14 ardize the safety of the child; and that granting subsidized guardian-
15 ship of the child to the prospective relative guardian will provide the
16 child with a safe and permanent home;
17 (iii) the length of time that the relative has been approved or certi-
18 fied as a foster parent, the length of time the prospective relative
19 guardian has provided foster care for the child and the length of time
20 the child has been in foster care prior to the filing of the guardian-
21 ship petition;
22 (iv) the consent of the prospective relative guardian, the attorney
23 for the child and the local department of social services to the issu-
24 ance of an order of subsidized kinship guardianship; and
25 (v) a copy of the written, binding kinship guardianship assistance
26 agreement entered into by the local department of social services and
27 the prospective relative guardian.
28 § 10. Subdivision 1 of section 1705 of the surrogate's court procedure
29 act is amended by adding a new paragraph (d) to read as follows:
30 (d) In proceedings for the appointment of a permanent or subsidized
31 kinship guardian, the attorney for the child and the local department of
32 social services.
33 § 11. Subdivision 1 of section 1706 of the surrogate's court procedure
34 act, as amended by chapter 404 of the laws of 2008, is amended to read
35 as follows:
36 1. Where process is not issued or upon the return of process, the
37 court shall ascertain the age of the infant, the amount of his or her
38 personal property, the gross amount of the rents and profits of his or
39 her real estate during his or her minority and the sufficiency of the
40 security offered by the proposed guardian. With respect to applications
41 for appointment as a permanent or subsidized kinship guardian of a
42 child, the permanent guardian shall have the right and responsibility to
43 make decisions, including issuing any necessary consents, regarding the
44 child's protection, education, care and control, health and medical
45 needs, and the physical custody of the person of the child[, and]. A
46 permanent guardian may consent to the adoption of the child. Provided,
47 however, that nothing in this subdivision shall be construed to limit
48 the ability of a child to consent to his or her own medical care as may
49 be otherwise provided by law. If the [infant] youth is over the age of
50 fourteen years the court shall ascertain his or her preference for a
51 suitable guardian. Notwithstanding any other section of law, where the
52 [infant] youth is over the age of eighteen, [the infant] he or she shall
53 consent to the appointment of a suitable guardian.
54 § 12. Section 1707 of the surrogate's court procedure act, as amended
55 by chapter 404 of the laws of 2008, is amended to read as follows:
56 § 1707. Decree appointing guardian; term of office
S. 3867 13
1 1. If the court [be] is satisfied that the interests of the infant
2 will be promoted by the appointment of a guardian or by the issuance of
3 temporary letters of guardianship of his or her person or of his or her
4 property, or of both, it must make a decree accordingly. If the court
5 determines that appointment of a permanent guardian is in the best
6 interests of the infant or child, the court shall issue a decree
7 appointing such guardian. If the court makes the findings required by
8 section one thousand fifty-five-c or one thousand eighty-nine-b of the
9 family court act, the court shall issue a decree appointing the relative
10 as a subsidized kinship guardian. The same person may be appointed guar-
11 dian of both the person and the property of the infant or the guardian-
12 ship of the person and of the property may be committed to different
13 persons. The court may appoint a person other than the parent of the
14 infant or the person nominated by the petitioner. When the court is
15 informed that the infant, a person nominated to be a guardian of such
16 infant, the petitioner, or any individual eighteen years of age or over
17 who resides in the home of the proposed guardian is a subject of or
18 another person named in an indicated report, as such terms are defined
19 in section four hundred twelve of the social services law, filed with
20 the statewide register of child abuse and maltreatment pursuant to title
21 six of article six of the social services law or is or has been the
22 subject of or the respondent in or a party to a child protective
23 proceeding commenced under article ten of the family court act which
24 resulted in an order finding that the child is an abused or neglected
25 child the court shall obtain such records regarding such report or
26 proceeding as it deems appropriate and shall give the information
27 contained therein due consideration in its determination.
28 2. The term of office of a guardian of the person or property so
29 appointed expires when the [infant] child attains majority, unless the
30 [infant] child consents to the continuation of or appointment of a guar-
31 dian after his or her eighteenth birthday, in which case such term of
32 office expires on his or her twenty-first birthday, or after such other
33 shorter period as the court establishes upon good cause shown; except
34 that the term of office of a guardian of the person of [an infant] a
35 child expires upon the [infant's] child's marriage prior to attaining
36 majority. The appointment of a permanent guardian or subsidized kinship
37 guardian of a child shall expire when the [infant or] child reaches the
38 age of eighteen years, unless the [infant or] child consents to the
39 continuation of a guardian after his or her eighteenth birthday, in
40 which case such term of office expires on his or her twenty-first birth-
41 day, or unless vacated by the court prior to the [infant or] child's
42 eighteenth or twenty-first birthday if the court finds that based upon
43 clear and convincing evidence the guardian failed to or is unable,
44 unavailable or unwilling to provide proper care and custody of the
45 infant or child, or that the guardianship is no longer in the best
46 interests of the infant or child. The court shall provide in its order
47 appointing a subsidized kinship guardian that the local department of
48 social services and the attorney for the child must receive notice of
49 and be made parties to any subsequent proceeding to vacate or modify the
50 order of guardianship.
51 § 13. Subdivisions 5 and 6 of section 409-e of the social services law
52 are renumbered subdivisions 6 and 7 and a new subdivision 5 is added to
53 read as follows:
54 5. With respect to each child with a permanency plan of placement with
55 a prospective relative guardian and receipt of kinship guardian assist-
S. 3867 14
1 ance payments, the family service plan must include the following
2 specific information:
3 (a) how the child meets the eligibility requirements;
4 (b) the steps the agency has taken to determine that return to the
5 home or adoption is not appropriate;
6 (c) the efforts the agency has made to discuss adoption with the
7 child's relative foster parent and the reasons why adoption is not an
8 option;
9 (d) the efforts the agency has made to discuss kinship guardianship
10 with the child's birth parent or parents or the reasons why efforts were
11 not made;
12 (e) the reason why a permanent placement with a prospective relative
13 guardian and receipt of a kinship guardian assistance payment is in the
14 child's best interests;
15 (f) the efforts made by the agency to discuss with the child's birth
16 parent or parents the kinship guardianship assistance arrangements or
17 why efforts were not made; and
18 (g) the reasons why the child is separated from his or her siblings,
19 if the child's siblings are not also in foster care with the prospective
20 relative guardian.
21 § 14. This act shall take effect on the ninetieth day after it shall
22 have become a law.
