§ 1091 — Motion to return to foster care placement

§ 1091. Motion to return to foster care placement. (a) For purposes of\nthis article:\n (1) "Former foster care youth" shall mean a youth:\n (i) who has attained the age of eighteen but is under the age of\ntwenty-one and who had been discharged from a foster care setting on or\nafter:\n (A) attaining the age of eighteen due to a failure to consent to\ncontinuation in foster care; or\n (B) attaining the age of sixteen but who is or is likely to be\nhomeless unless returned to foster care; and\n (ii)(A) placed in foster care with a local social services district or\nauthorized agency, as applicable, pursuant to article three, seven, ten,\nten-A or ten-C of this act or section three hundred fifty-eight-a of the\nsocial services law; or\n (B) freed for adoption in accordance with section six hundred\nthirty-one of this act or section three hundred eighty-three-c, three\nhundred eighty-four or three hundred eighty-four-b of the social\nservices law but has not yet been adopted; or\n (C) placed with the office of children and family services as a\njuvenile delinquent for a non-secure level of care pursuant to article\nthree of this act.\n (2) "Foster care setting" shall not include placements in:\n (i) (A) a limited secure or secure level of care with the office of\nchildren and family services; or\n (B) a limited secure level of care where the placement was made in a\ncounty that has an approved "close to home" program pursuant to section\nfour hundred four of the social services law.\n (ii) Provided however, a youth who was previously placed in a limited\nsecure or secure level of care but was subsequently transferred to a\nnon-secure level of care may still be eligible to re-enter if such youth\nwas ultimately released from a non-secure setting.\n (b) A motion to return a former foster care youth to the custody of\nthe social services district from which the youth was most recently\ndischarged, or, in the case of a youth previously placed with the office\nof children and family services, to be placed in the custody of the\nsocial services district of the child's residence, or, in the case of a\nchild freed for adoption, the social services district or authorized\nagency into whose custody and guardianship such child has been placed,\nmay be made by such former foster care youth, or by the applicable\nofficial of the local social services district, authorized agency or the\noffice of children and family services upon the consent of such former\nfoster care youth, if there is a compelling reason for such former\nfoster care youth to return to foster care.\n (c) (1) With respect to a former foster care youth discharged on or\nafter his or her eighteenth birthday, the court shall not entertain a\nmotion filed after twenty-four months from the date of the first final\ndischarge that occurred on or after the former foster care youth's\neighteenth birthday.\n (2) With respect to a former foster care youth discharged prior to his\nor her eighteenth birthday, the court shall not entertain a motion filed\nafter his or her twentieth birthday; provided further, however, that\nduring the state of emergency declared pursuant to Executive Order 202\nof 2020, or any extension or subsequent order issued, such former foster\nyouth shall be entitled to return to the custody of the local\ncommissioner of social services or other officer, board or department\nauthorized to receive children as public charges without making a motion\nin accordance with paragraph one of this subdivision and, to the extent\nfederally allowable, any requirement to enroll in and attend an\neducational or vocational program shall be waived for the duration of\nthe state of emergency. Subsequent to a former foster youth's return to\nplacement without making a motion, as authorized under this section\nduring the state of emergency declared pursuant to Executive Order 202\nof 2020 or any extension or subsequent executive order issued in\nresponse to the novel coronavirus (COVID-19) pandemic, nothing herein\nshall prohibit the local social services district from filing a motion\nfor requisite findings needed to subsequently claim reimbursement under\nTitle IV-E of the federal social security act to support the youth's\ncare, and the family court shall hear and determine such motions on an\nexpedited basis.\n (d) A motion made pursuant to this article by the applicable official\nof the local social services district, authorized agency or the office\nof children and family services shall be made by order to show cause.\nSuch motion shall show by affidavit or other evidence that:\n (1) the former foster care youth has no reasonable alternative to\nfoster care;\n (2) the former foster care youth consents to enrollment in and\nattendance at an appropriate educational or vocational program, unless\nevidence is submitted that such enrollment or attendance is unnecessary\nor inappropriate, given the particular circumstances of the youth;\n (3) re-entry into foster care is in the best interests of the former\nfoster care youth;\n (4) the former foster care youth consents to the re-entry into foster\ncare; and\n (5) in the case of a former foster youth discharged from foster care\non or after attaining the age of sixteen, the youth is or is likely to\nbe homeless unless returned to foster care.\n (e) A motion made pursuant to this article by a former foster care\nyouth shall be made by order to show cause on ten days notice to the\napplicable official of the local social services district, authorized\nagency or the office of children and family services. Such motion shall\nshow by affidavit or other evidence that:\n (1) the requirements outlined in paragraphs one, two, three, four and,\nif applicable, paragraph five of subdivision (d) of this section are\nmet; and\n (2) (i) the applicable official of the local social services district,\nauthorized agency or the office of children and family services consents\nto the re-entry of such former foster care youth, or\n (ii) the applicable official of the local social services district,\nauthorized agency or the office of children and family services refuses\nto consent to the re-entry of such former foster care youth.\n (f) (1) If at any time during the pendency of a proceeding brought\npursuant to this article, the court finds a compelling reason that it is\nin the best interests of the former foster care youth to be returned\nimmediately to the custody of the applicable local commissioner of\nsocial services or official of the applicable authorized agency or the\noffice of children and family services, pending a final decision on the\nmotion, the court may issue a temporary order returning the youth to the\ncustody of such local commissioner of social services or other official.\n (2) Where the applicable official of the local social services\ndistrict, authorized agency or the office of children and family\nservices has refused to consent to the re-entry of a former foster care\nyouth, the court shall grant a motion made pursuant to subdivision (e)\nof this section if the court finds and states in writing that the\nrefusal is unreasonable. For purposes of this article, a court shall\nfind that a refusal to allow a former foster care youth to re-enter care\nis unreasonable if:\n (i) the youth has no reasonable alternative to foster care;\n (ii) the youth consents to enrollment in and attendance at an\nappropriate educational or vocational program, unless the court finds a\ncompelling reason that such enrollment or attendance is unnecessary or\ninappropriate, given the particular circumstances of the youth; and\n (iii) re-entry into foster care is in the best interests of the former\nfoster care youth.\n (3) Upon making a determination on a motion filed pursuant to this\narticle, where a motion has previously been granted pursuant to this\narticle, in addition to the applicable findings required by this\narticle, the court shall grant the motion to return a former foster care\nyouth to the custody of the applicable local commissioner of social\nservices or official of the applicable authorized agency or the office\nof children and family services, only:\n (i) upon a finding that there is a compelling reason for such former\nfoster care youth to return to care;\n (ii) if the court has not previously granted a subsequent motion for\nsuch former foster care youth to return to care pursuant to this\nparagraph; and\n (iii) upon consideration of the former foster care youth's compliance\nwith previous orders of the court, including the youth's previous\nparticipation in an appropriate educational or vocational program, if\napplicable.\n