S03867 Summary:

BILL NOS03867
 
SAME ASNo same as
 
SPONSORMONTGOMERY
 
COSPNSR
 
MLTSPNSR
 
Amd SS661, 1052, 1089, add SS1055-c & 1089-b, Fam Ct Act; amd SS1701, 1702, 1704, 1705, 1706 & 1707, SCPA; amd S409-e, Soc Serv L
 
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.
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S03867 Actions:

BILL NOS03867
 
04/02/2009REFERRED TO CHILDREN AND FAMILIES
01/06/2010REFERRED TO CHILDREN AND FAMILIES
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S03867 Text:



 
                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

        S. 3867                             7
 
     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.
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