§ 1095 — Fact finding and disposition

§ 1095. Fact finding and disposition. (a) No fact finding hearing may\ncommence under this article unless the court enters a finding that all\nparties are present at the hearing and have been served with a copy of\nthe petition, provided however, that if any party is or are living but\nare not present, that the court may proceed if every reasonable effort\nhas been made to effect service under subdivision (d) of section one\nthousand ninety-three of this article.\n (b) The court shall sustain the petition and make a finding that a\nchild is destitute if, based upon a preponderance of competent, material\nand relevant evidence presented, the court finds that the child meets\nthe definition of a destitute child as described in subdivision (a) of\nsection one thousand ninety-two of this article. If the proof does not\nconform to the specific allegations of the petition, the court may amend\nthe allegations to conform to the proof if no party objects to such\nconformation.\n (c) If the court finds that the child does not meet such definition of\na destitute child or that the aid of the court is not required, the\ncourt shall dismiss the petition, and if applicable, return a child who\nwas placed in the temporary care of the commissioner of social services\nto any parent, caretaker or interested adult; provided, however, that if\nthe court finds that the child may be in need of protection under\narticle ten of this act, the court may request the commissioner of\nsocial services to conduct a child protective investigation in\naccordance with subdivision one of section one thousand thirty-four of\nthis act. The court shall state the grounds for any finding under this\nsubdivision.\n (d) If the court sustains the petition pursuant to subdivision (b) of\nthis section, it may immediately convene a dispositional hearing or may\nadjourn the proceeding for further inquiries to be made prior to\ndisposition provided however, that if a petition pursuant to article six\nof this act has been filed by a person or persons seeking custody or\nguardianship of the child, or if a petition pursuant to article\nseventeen of the surrogate's court procedure act seeking guardianship of\nthe child has been filed, the court shall consolidate the dispositional\nhearing with a hearing under section one thousand ninety-six of this\narticle, unless consolidation would not be appropriate under the\ncircumstances. If the court does not consolidate such dispositional\nproceedings it shall hold the dispositional hearing under this section\nin abeyance pending the disposition of the petition filed pursuant to\narticle six of this act or article seventeen of the surrogate's court\nprocedure act. Based upon material and relevant evidence presented at\nthe dispositional hearing, the court shall enter an order of disposition\nstating the grounds for its order and directing one of the following\nalternatives:\n (1) placing the child in the care and custody of the commissioner of\nsocial services; or\n (2) granting an order of custody or guardianship to relatives or\nsuitable persons pursuant to a petition under article six of this act or\nguardianship of the child to a relative or suitable person under article\nseventeen of the surrogate's court procedure act and in accordance with\nsection one thousand ninety-six of this article.\n (e) If the child has been placed pursuant to paragraph one of\nsubdivision (d) of this section, the court shall include the following\nin its order:\n (1) a date certain for the permanency hearing in accordance with\nparagraph two of subdivision (a) of section one thousand eighty-nine of\nthis act;\n (2) a description of the plan for the child to visit with his or her\nparent or parents unless contrary to the child's best interests;\n (3) a direction that the child be placed together with or, at minimum,\nto visit and have regular communication with, his or her siblings, if\nany, unless contrary to the best interests of the child and/or the\nsiblings and may incorporate an order issued pursuant to part eight of\narticle ten of this chapter in accordance with subdivision (f) of this\nsection;\n (4) a direction that the child's parent or parents be notified of any\nplanning conferences to be held pursuant to subdivision three of section\nfour hundred nine-e of the social services law, of their right to attend\nsuch conferences and to have counsel or another representative or\ncompanion with them;\n (5) if the child is or will be fourteen or older by the date of the\npermanency hearing, the services and assistance that may be necessary to\nassist the child in learning independent living skills; and\n (6) a notice that, if the child remains in foster care for fifteen of\nthe most recent twenty-two months, the agency may be required by law to\nfile a petition to terminate parental rights.\n (f) If the child has been placed pursuant to paragraph one of\nsubdivision (d) of this section, the provisions of part eight of article\nten of this act shall be applicable.\n (g) If the court makes an order pursuant to paragraph one of\nsubdivision (d) of this section, the court may include a direction for\nthe commissioner of social services to provide or arrange for services\nor assistance, limited to those authorized or required to be made\navailable under the comprehensive annual services program plan then in\neffect, to ameliorate the conditions that formed the basis for the\nfact-finding under this section and, if the child has been placed in the\ncare and custody of the commissioner of social services, to facilitate\nthe child's permanency plan.\n