§ 1022 — Preliminary orders of court before petition filed

New York § 1022

• Jurisdiction: New York
• Law FCT: Family Court Act
• Part 2: Temporary Removal and Preliminary Orders
• Art. 10: Child Protective Proceedings

Text

§ 1022. Preliminary orders of court before petition filed. (a) (i) The\nfamily court may enter an order directing the temporary removal of a\nchild from the place where he or she is residing before the filing of a\npetition under this article, if (A) the parent or other person legally\nresponsible for the child's care is absent or, though present, was asked\nand refused to consent to the temporary removal of the child and was\ninformed of an intent to apply for an order under this section and of\nthe information required by section one thousand twenty-three of this\npart; and\n (B) the child appears so to suffer from the abuse or neglect of his or\nher parent or other person legally responsible for his or her care that\nhis or her immediate removal is necessary to avoid imminent danger to\nthe child's life or health; and\n (C) there is not enough time to file a petition and hold a preliminary\nhearing under section one thousand twenty-seven of this part.\n (ii) When a child protective agency applies to a court for the\nimmediate removal of a child pursuant to this subdivision, the court\nshall calendar the matter for that day and shall continue the matter on\nsuccessive subsequent court days, if necessary, until a decision is made\nby the court.\n (iii) In determining whether temporary removal of the child is\nnecessary to avoid imminent risk to the child's life or health, the\ncourt shall consider and determine in its order whether continuation in\nthe child's home would be contrary to the best interests of the child\nand where appropriate, whether reasonable efforts were made prior to the\ndate of application for the order directing such temporary removal to\nprevent or eliminate the need for removal of the child from the home. If\nthe court determines that reasonable efforts to prevent or eliminate the\nneed for removal of the child from the home were not made but that the\nlack of such efforts was appropriate under the circumstances, the court\norder shall include such a finding.\n (iv) If the court determines that reasonable efforts to prevent or\neliminate the need for removal of the child from the home were not made\nbut that such efforts were appropriate under the circumstances, the\ncourt shall order the child protective agency to provide or arrange for\nthe provision of appropriate services or assistance to the child and the\nchild's family pursuant to section one thousand fifteen-a of this\narticle or subdivision (c) of this section.\n (v) The court shall also consider and determine whether imminent risk\nto the child would be eliminated by the issuance of a temporary order of\nprotection, pursuant to section one thousand twenty-nine of this part,\ndirecting the removal of a person or persons from the child's residence.\n (vi) Any order directing the temporary removal of a child pursuant to\nthis section shall state the court's findings with respect to the\nnecessity of such removal, whether the respondent was present at the\nhearing and, if not, what notice the respondent was given of the\nhearing, whether the respondent was represented by counsel, and, if not,\nwhether the respondent waived his or her right to counsel.\n (vii) At the conclusion of a hearing where it has been determined that\na child should be removed from his or her parent or other person legally\nresponsible, the court shall set the date certain for an initial\npermanency hearing pursuant to paragraph two of subdivision (a) of\nsection one thousand eighty-nine of this act. The date certain shall be\nincluded in the written order issued pursuant to subdivision (b) of this\nsection and shall set forth the date certain scheduled for the\npermanency hearing.\n (b) Any written order pursuant to this section shall be issued\nimmediately, but in no event later than the next court day following the\nremoval of the child. The order shall specify the facility to which the\nchild is to be brought. Except for good cause shown or unless the child\nis sooner returned to the place where he or she was residing, a petition\nshall be filed under this article within three court days of the\nissuance of the order. The court shall hold a hearing pursuant to\nsection one thousand twenty-seven of this part no later than the next\ncourt day following the filing of the petition if the respondent was not\npresent, or was present and unrepresented by counsel, and has not waived\nhis or her right to counsel, for the hearing pursuant to this section.\n (c) The family court, before the filing of a petition under this\narticle, may enter an order authorizing the provision of services or\nassistance, including authorizing a physician or hospital to provide\nemergency medical or surgical procedures, if (i) such procedures are\nnecessary to safeguard the life or health of the child; and\n (ii) there is not enough time to file a petition and hold a\npreliminary hearing under section one thousand twenty-seven. Where the\ncourt orders a social services official to provide or contract for\nservices or assistance pursuant to this section, such order shall be\nlimited to services or assistance authorized or required to be made\navailable pursuant to the comprehensive annual services program plan\nthen in effect.\n (d) The person removing the child shall, coincident with removal, give\nwritten notice to the parent or other person legally responsible for the\nchild's care of the right to apply to the family court for the return of\nthe child pursuant to section one thousand twenty-eight of this act, the\nname, title, organization, address and telephone number of the person\nremoving the child, the name and telephone number of the child care\nagency to which the child will be taken, if available, the telephone\nnumber of the person to be contacted for visits with the child, and the\ninformation required by section one thousand twenty-three of this act.\nSuch notice shall be personally served upon the parent or other person\nat the residence of the child provided, that if such person is not\npresent at the child's residence at the time of removal, a copy of the\nnotice shall be affixed to the door of such residence and a copy shall\nbe mailed to such person at his or her last known place of residence\nwithin twenty-four hours after the removal of the child. If the place of\nremoval is not the child's residence, a copy of the notice shall be\npersonally served upon the parent or person legally responsible for the\nchild's care forthwith, or affixed to the door of the child's residence\nand mailed to the parent or other person legally responsible for the\nchild's care at his or her last known place of residence within\ntwenty-four hours after the removal. The form of the notice shall be\nprescribed by the chief administrator of the courts.\n (e) Nothing in this section shall be deemed to require that the court\norder the temporary removal of a child as a condition of ordering\nservices or assistance, including emergency medical or surgical\nprocedures pursuant to subdivision (c) of this section.\n (f) The court may issue a temporary order of protection pursuant to\nsection ten hundred twenty-nine of this article as an alternative to or\nin conjunction with any other order or disposition authorized under this\nsection.\n