§ 1027 — Hearing and preliminary orders after filing of petition

New York § 1027

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

Text

§ 1027. Hearing and preliminary orders after filing of petition. (a)\n(i) In any case where the child has been removed without court order or\nwhere there has been a hearing pursuant to section one thousand\ntwenty-two of this part at which the respondent was not present, or was\nnot represented by counsel and did not waive his or her right to\ncounsel, the family court shall hold a hearing. Such hearing shall be\nheld no later than the next court day after the filing of a petition to\ndetermine whether the child's interests require protection, including\nwhether the child should be returned to the parent or other person\nlegally responsible, pending a final order of disposition and shall\ncontinue on successive court days, if necessary, until a decision is\nmade by the court.\n (ii) In any such case where the child has been removed, any person\noriginating a proceeding under this article shall, or the attorney for\nthe child may apply for, or the court on its own motion may order, a\nhearing at any time after the petition is filed to determine whether the\nchild's interests require protection pending a final order of\ndisposition. Such hearing must be scheduled for no later than the next\ncourt day after the application for such hearing has been made.\n (iii) In any case under this article in which a child has not been\nremoved from his or her parent or other person legally responsible for\nhis or her care, any person originating a proceeding under this article\nor the attorney for the child may apply for, or the court on its own\nmotion may order, a hearing at any time after the petition is filed to\ndetermine whether the child's interests require protection, including\nwhether the child should be removed from his or her parent or other\nperson legally responsible, pending a final order of disposition. Such\nhearing must be scheduled for no later than the next court day after the\napplication for such hearing has been made.\n (iv) Notice of a hearing shall be provided pursuant to section one\nthousand twenty-three of this part.\n (b) (i) Upon such hearing, if the court finds that removal is\nnecessary to avoid imminent risk to the child's life or health, it shall\nremove or continue the removal of the child. If the court makes such a\ndetermination that removal is necessary, the court shall immediately\ninquire as to the status of any efforts made by the local social\nservices district to locate relatives of the child, including any\nnon-respondent parent and all of the child's grandparents, as required\npursuant to section one thousand seventeen of this article. The court\nshall also inquire as to whether the child, if over the age of five, has\nidentified any relatives who play or have played a significant positive\nrole in his or her life and whether any respondent parent or any\nnon-respondent parent has identified any suitable relatives. Such\ninquiry shall include whether any relative who has been located has\nexpressed an interest in becoming a foster parent for the child or in\nseeking custody or care of the child. Upon completion of such inquiry,\nthe court shall remand or place the child:\n (A) with the local commissioner of social services and the court may\ndirect such commissioner to have the child reside with a relative or\nother suitable person who has indicated a desire to become a foster\nparent for the child and further direct such commissioner, pursuant to\nregulations of the office of children and family services, to commence\nan investigation of the home of such relative or other suitable person\nwithin twenty-four hours and thereafter expedite approval or\ncertification of such relative or other suitable person, if qualified,\nas a foster parent. If such home is found to be unqualified for approval\nor certification, the local commissioner shall report such fact to the\ncourt forthwith so that the court may make a placement determination\nthat is in the best interests of the child;\n (B) to a place approved for such purpose by the social services\ndistrict; or\n (C) with a relative or suitable person other than the respondent.\n (ii) Such order shall state the court's findings which support 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, and, where a pre-petition removal has occurred, whether such\nremoval took place pursuant to section one thousand twenty-one, one\nthousand twenty-two or one thousand twenty-four of this part. If the\nparent or other person legally responsible for the child's care is\nphysically present at the time the child is removed, and has not\npreviously been served with the summons and petition, the summons and\npetition shall be served upon such parent or person coincident with such\nremoval. If such parent or person is not physically present at the time\nthe child is removed, service of the summons and petition shall be\ngoverned by section one thousand thirty-six of this article. In\ndetermining whether removal or continuing the removal of a 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 the hearing held under subdivision (a) of this section to\nprevent or eliminate the need for removal of the child from the home\nand, if the child was removed from his or her home prior to the date of\nthe hearing held under subdivision (a) of this section, where\nappropriate, that reasonable efforts were made to make it possible for\nthe child to safely return home.\n (iii) 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 the lack of such efforts was appropriate under the\ncircumstances, the court order 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 or as\nenumerated in subdivision (c) of section one thousand twenty-two of this\narticle, notwithstanding the fact that a petition has been filed.\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 (c) Upon such hearing, the court may, for good cause shown, issue a\npreliminary order of protection which may contain any of the provisions\nauthorized on the making of an order of protection under section one\nthousand fifty-six of this act.\n (d) Upon such hearing, the court may, for good cause shown, release\nthe child to his or her parent or other person legally responsible for\nhis or her care, pending a final order of disposition, in accord with\nsubparagraph (ii) of paragraph (a) of subdivision two of section one\nthousand seventeen of this article.\n (e) Upon such hearing, the court may authorize a physician or hospital\nto provide medical or surgical procedures if such procedures are\nnecessary to safeguard the child's life or health.\n (f) If the court grants or denies a preliminary order requested\npursuant to this section, it shall state the grounds for such decision.\n (g) In all cases involving abuse the court shall order, and in all\ncases involving neglect the court may order, an examination of the child\npursuant to section two hundred fifty-one of this act or by a physician\nappointed or designated for the purpose by the court. As part of such\nexamination, the physician shall arrange to have colored photographs\ntaken as soon as practical of the areas of trauma visible on such child\nand may, if indicated, arrange to have a radiological examination\nperformed on the child. The physician, on the completion of such\nexamination, shall forward the results thereof together with the color\nphotographs to the court ordering such examination. The court may\ndispense with such examination in those cases which were commenced on\nthe basis of a physical examination by a physician. Unless colored\nphotographs have already been taken or unless there are no areas of\nvisible trauma, the court shall arrange to have colored photographs\ntaken even if the examination is dispensed with.\n (h) At the conclusion of a hearing where it has been determined that a\nchild should be removed from his or her parent or other person legally\nresponsible, the court shall set a 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. A copy of such order shall be provided to the parent\nor other person legally responsible for the child's care.\n