§ 358-A — Dependent children in foster care

New York § 358-A

• Jurisdiction: New York
• Law SOS: Social Services
• Title 10: Aid to Dependent Children
• Art. 5: Assistance and Care

Text

§ 358-a. Dependent children in foster care. (1) Initiation of judicial\nproceeding. (a) A social services official who accepts or proposes to\naccept the custody and guardianship of a child by means of an instrument\nexecuted pursuant to the provisions of section three hundred eighty-four\nof this chapter, or the care and custody of a child as a public charge\nby means of an instrument executed pursuant to the provisions of section\nthree hundred eighty-four-a of this chapter, shall determine whether\nsuch child is likely to remain in the care of such official for a period\nin excess of thirty consecutive days. If such official determines that\nthe child is likely to remain in care for a period in excess of thirty\nconsecutive days, such official shall petition the family court judge of\nthe county or city in which the social services official has his or her\noffice, to approve such instrument upon a determination that the\nplacement of the child is in the best interest of the child, that it\nwould be contrary to the welfare of the child to continue in his or her\nown home and, that where appropriate, reasonable efforts were made prior\nto the placement of the child into foster care to prevent or eliminate\nthe need for removal of the child from his or her home and that prior to\nthe initiation of the court proceeding required to be held by this\nsubdivision, reasonable efforts were made to make it possible for the\nchild to return safely home. In the case of a child whose care and\ncustody have been transferred to a social services official by means of\nan instrument executed pursuant to the provisions of section three\nhundred eighty-four-a of this chapter, approval of the instrument shall\nonly be made upon an additional determination that all of the\nrequirements of such section have been satisfied.\n * (b) The social services official shall initiate the proceeding by\nfiling the petition as soon as practicable, but in no event later than\nthirty days following removal of the child from the home provided,\nhowever, that the court shall receive, hear and determine petitions\nfiled later than thirty days following removal of the child from his or\nher home, but state reimbursement shall not be available to the social\nservices district for care and maintenance provided to such child. The\nsocial services official shall diligently pursue such proceeding. Where\nthe care and custody of a child as a public charge has been transferred\nto a social services official by means of an instrument executed\npursuant to the provisions of section three hundred eighty-four-a of\nthis chapter for a period of thirty days or less for an indeterminate\nperiod which such official deems unlikely to exceed thirty days, and\nthereafter such official determines that such child will remain in his\nor her care and custody for a period in excess of thirty days, such\nofficial shall, as soon as practicable but in no event later than thirty\ndays following such determination, execute with the child's parent,\nparents or guardian a new instrument pursuant to the provision of\nsection three hundred eighty-four or three hundred eighty-four-a of this\nchapter and shall file a petition in family court, pursuant to this\nsection, for approval of such instrument. In such cases involving a\nsocial services official, expenditures for the care and maintenance of\nsuch child from the date of the initial transfer of his care and custody\nto the social services official shall be subject to state reimbursement.\n * NB Effective until June 30, 2027\n * (b) The social services official shall initiate the proceeding by\nfiling the petition as soon as practicable, but in no event later than\nthirty days following removal of the child from the home provided,\nhowever, that the court shall receive, hear and determine petitions\nfiled later than thirty days following removal of the child from his or\nher home, but state reimbursement to the social services district for\ncare and maintenance provided to such child shall be denied pursuant to\nsection one hundred fifty-three-d of this chapter. The social services\nofficial shall diligently pursue such proceeding. Where the care and\ncustody of a child as a public charge has been transferred to a social\nservices official by means of an instrument executed pursuant to the\nprovisions of section three hundred eighty-four-a of this chapter for a\nperiod of thirty days or less for an indeterminate period which such\nofficial deems unlikely to exceed thirty days, and thereafter such\nofficial determines that such child will remain in his or her care and\ncustody for a period in excess of thirty days, such official shall, as\nsoon as practicable but in no event later than thirty days following\nsuch determination, execute with the child's parent, parents or guardian\na new instrument pursuant to the provision of section three hundred\neighty-four or three hundred eighty-four-a of this chapter and shall\nfile a petition in family court, pursuant to this section, for approval\nof such instrument. In such cases involving a social services official,\nexpenditures for the care and maintenance of such child from the date of\nthe initial transfer of his care and custody to the social services\nofficial shall be subject to state reimbursement, notwithstanding the\nprovisions of section one hundred fifty-three-d of this chapter.\n * NB Effective June 30, 2027\n (2) Contents of petition. (a) Any petition required or authorized\npursuant to subdivision one of this section shall allege whether the\nparent, parents or guardian executed the instrument because the parent,\nparents or guardian would be unable to make adequate provision for the\ncare, maintenance and supervision of such child in his or their own\nhome, and shall include facts supporting the petition. The petition\nshall contain a notice in conspicuous print providing that if the child\nremains in foster care for fifteen of the most recent twenty-two months,\nthe agency may be required by law to file a petition to terminate\nparental rights. The petition shall also set forth the names and last\nknown addresses of all persons required to be given notice of the\nproceeding, pursuant to this section and section three hundred\neighty-four-c of this chapter, and there shall be shown by the petition\nor by affidavit or other proof satisfactory to the court that there are\nno persons other than those set forth in the petition who are entitled\nto notice pursuant to the provisions of this section or of section three\nhundred eighty-four-c of this chapter. The petition shall also set forth\nthe efforts which were made, prior to the placement of the child into\nfoster care, to prevent or eliminate the need for removal of the child\nfrom his or her home and the efforts which were made prior to the filing\nof the petition to make it possible for the child to return safely home.\nIf such efforts were not made, the petition shall set forth the reasons\nwhy these efforts were not made. The petition shall request that,\npending any hearing which may be required by the family court judge, a\ntemporary order be made transferring the care and custody of the child\nto the social services official in accordance with the provisions of\nsubdivision three of this section. In the case of a child whose care and\ncustody have been transferred to a social services official by means of\nan instrument executed pursuant to section three hundred eighty-four-a\nof this chapter, the petition shall also allege and there shall be shown\nby affidavit or other proof satisfactory to the court that all the\nrequirements of such section have been satisfied, including the results\nof the investigation to locate relatives of the child, including any\nnon-respondent parent and all of the child's grandparents. Such results\nshall include whether any relative who has been located expressed an\ninterest in becoming a foster parent for the child or in seeking custody\nor care of the child.\n (b) The social services official who initiated the proceeding shall\nfile supplemental information with the clerk of the court not later than\nten days prior to the date on which the proceeding is first heard by the\ncourt. Such information shall include relevant portions, as determined\nby the department, of the assessment of the child and his family\ncircumstances performed and maintained, and the family's service plan if\navailable, pursuant to sections four hundred nine-e and four hundred\nnine-f of this chapter. Copies of such supplemental information need not\nbe served upon those persons entitled to notice of the proceeding and a\ncopy of the petition pursuant to subdivision four of this section.\n (2-a) Continuing jurisdiction. (a) The court shall possess continuing\njurisdiction over the parties until the child is discharged from\nplacement and all orders regarding supervision, protection or services\nhave expired.\n (b) The court, upon approving an instrument under this section, shall\nschedule a permanency hearing pursuant to article ten-A of the family\ncourt act for a date certain not more than eight months after the\nplacement of the child into foster care. Such date certain shall be\nincluded in the order approving the instrument.\n (c) (i) Subject to the provisions of subparagraph (ii) of this\nparagraph, the court shall also maintain jurisdiction over a case for\nthe purposes of hearing and deciding a motion brought by a former foster\ncare youth, as defined in article ten-B of the family court act, or by a\nyoung adult who left foster care upon or after attaining the age of\ntwenty-one, for contempt pursuant to section seven hundred fifty-three\nof the judiciary law against a social services district and/or social\nservices official, as defined by section two of this chapter. In\naddition to any other defense, it shall be an affirmative defense to a\nmotion filed in accordance with this paragraph that compliance with the\ncourt order was not possible due solely to the youth's refusal to\nconsent to continuation of foster care placement where such refusal is\ndocumented in a signed, notarized letter executed by the youth after\nconsultation with their attorney for the child.\n (ii) The court shall maintain jurisdiction over a motion described in\nsubparagraph (i) of this paragraph if such motion is filed before the\nformer foster care youth or young adult attains the age of twenty-three.\nThe court's jurisdiction over any such motion shall continue until such\nmotion and any related appeals are finally resolved.\n (iii) If the youth is eligible to return to foster care pursuant to\nthe provisions of article ten-B of the family court act, upon the\nconsent of the youth, the court may convert a motion brought under this\nparagraph to a motion to return the youth to foster care.\n (3) Disposition of petition. (a) If the court is satisfied that the\nparent, parents or guardian executed such instrument knowingly and\nvoluntarily and because he or she would be unable to make adequate\nprovision for the care, maintenance and supervision of such child in his\nor her home, and that the requirements of section three hundred\neighty-four-a of this chapter, if applicable, have been satisfied and\nthat where appropriate, reasonable efforts were made prior to the\nplacement of the child into foster care to prevent or eliminate the need\nfor removal of the child from his or her home and that prior to the\ninitiation of the court proceeding required to be held by subdivision\none of this section, reasonable efforts were made to make it possible\nfor the child to return safely to his or her home, the court may find\nand determine that the best interests and welfare of the child would be\npromoted by removal of the child from such home, and that it would be\ncontrary to the welfare of such child for the child to continue in such\nhome, and the court shall thereupon grant the petition and approve such\ninstrument and the transfer of the custody and guardianship or care and\ncustody of such child to such social services official in accordance\ntherewith. If the court determines that, where appropriate, reasonable\nefforts were made prior to the placement of the child into foster care\nto prevent or eliminate the need for removal of the child from his or\nher home, that prior to the initiation of the court proceeding\nreasonable efforts were made to make it possible for the child to return\nsafely to his or her home, or that it would be contrary to the best\ninterests of the child to continue in the home, or that reasonable\nefforts to prevent or eliminate the need for removal of the child from\nthe home were not made but that the lack of such efforts was appropriate\nunder the circumstances, the court order shall include such findings.\nApproval of such instrument in a proceeding pursuant to this section\nshall not constitute a remand or commitment pursuant to this chapter and\nshall not preclude challenge in any other proceeding to the validity of\nthe instrument. If the permanency plan for the child is adoption,\nguardianship, permanent placement with a fit and willing relative or\nanother planned permanent living arrangement other than reunification\nwith the parent or parents of the child, the court must consider and\ndetermine in its order whether reasonable efforts are being made to make\nand finalize such alternate permanent placement.\n (b) For the purpose of this section, reasonable efforts to prevent or\neliminate the need for removing the child from the home of the child or\nto make it possible for the child to return safely to the home of the\nchild shall not be required where the court determines that:\n (1) the parent of such child has subjected the child to aggravated\ncircumstances, as defined in subdivision twelve of this section;\n (2) the parent of such child has been convicted of (i) murder in the\nfirst degree as defined in section 125.27 or murder in the second degree\nas defined in section 125.25 of the penal law and the victim was another\nchild of the parent; or (ii) manslaughter in the first degree as defined\nin section 125.20 or manslaughter in the second degree as defined in\nsection 125.15 of the penal law and the victim was another child of the\nparent, provided, however, that the parent must have acted voluntarily\nin committing such crime;\n (3) the parent of such child has been convicted of an attempt to\ncommit any of the foregoing crimes, and the victim or intended victim\nwas the child or another child of the parent; or has been convicted of\ncriminal solicitation as defined in article one hundred, conspiracy as\ndefined in article one hundred five or criminal facilitation as defined\nin article one hundred fifteen of the penal law for conspiring,\nsoliciting or facilitating any of the foregoing crimes, and the victim\nor intended victim was the child or another child of the parent;\n (4) the parent of such child has been convicted of assault in the\nsecond degree as defined in section 120.05, assault in the first degree\nas defined in section 120.10 or aggravated assault upon a person less\nthan eleven years old as defined in section 120.12 of the penal law, and\nthe commission of one of the foregoing crimes resulted in serious\nphysical injury to the child or another child of the parent;\n (5) the parent of such child has been convicted in any other\njurisdiction of an offense which includes all of the essential elements\nof any crime specified in subparagraph two, three or four of this\nparagraph, and the victim of such offense was the child or another child\nof the parent; or\n (6) the parental rights of the parent to a sibling of such child have\nbeen involuntarily terminated;\nunless the court determines that providing reasonable efforts would be\nin the best interests of the child, not contrary to the health and\nsafety of the child, and would likely result in the reunification of the\nparent and the child in the foreseeable future. The court shall state\nsuch findings in its order.\n If the court determines that reasonable efforts are not required\nbecause of one of the grounds set forth above, a permanency hearing\nshall be held within thirty days of the finding of the court that such\nefforts are not required. Such hearing shall be conducted pursuant to\nsection one thousand eighty-nine of the family court act. The local\nsocial services official shall thereafter make reasonable efforts to\nplace the child in a timely manner and to complete whatever steps are\nnecessary to finalize the permanent placement of the child as set forth\nin the permanency plan approved by the court. If reasonable efforts are\ndetermined by the court not to be required because of one of the grounds\nset forth in this paragraph, the local social services official may file\na petition for termination of parental rights of the parent in\naccordance with section three hundred eighty-four-b of this chapter.\n (c) For the purpose of this section, in determining reasonable efforts\nto be made with respect to a child, and in making such reasonable\nefforts, the child's health and safety shall be the paramount concern.\n (d) For the purpose of this section, a sibling shall include a\nhalf-sibling.\n (e) The order granting the petition of a social services official and\napproving an instrument executed pursuant to section three hundred\neighty-four-a of this chapter may include conditions, where appropriate\nand specified by the judge, requiring the implementation of a specific\nplan of action by the social services official to exercise diligent\nefforts toward the discharge of the child from care, either to his own\nfamily or to an adoptive home; provided, however, that such plan shall\nnot include the provision of any service or assistance to the child and\nhis or her family which is not authorized or required to be made\navailable pursuant to the comprehensive annual services program plan\nthen in effect. An order of placement shall include, at the least:\n (i) a description of the visitation plan;\n (ii) a direction that the respondent or respondents shall be notified\nof the planning conference or conferences to be held pursuant to\nsubdivision three of section four hundred nine-e of this chapter, of\ntheir right to attend the conference, and of their right to have counsel\nor other representative or companion with them;\n A copy of the court's order and the service plan shall be given to the\nrespondent. The order shall also contain a notice that if the child\nremains in foster care for more than fifteen of the most recent\ntwenty-two months, the agency may be required by law to file a petition\nto terminate parental rights.\n Nothing in such order shall preclude either party to the instrument\nfrom exercising its rights under this section or under any other\nprovision of law relating to the return of the care and custody of the\nchild by the social services official to the parent, parents or\nguardian. Violation of such on order shall be subject to punishment\npursuant to section seven hundred fifty-three of the judiciary law.\n (f) For a child who has attained the age of fourteen, if the court\ngrants the petition and approves an instrument executed pursuant to\nsection three hundred eighty-four or three hundred eighty-four-a of this\nchapter and the transfer of custody and guardianship or care and custody\nof the child to a local social services official the court shall\ndetermine in its order the services and assistance needed to assist the\nchild in learning independent living skills.\n (g) (i) In any case in which an order has been issued pursuant to this\nsection approving a foster care placement instrument, the social\nservices official or authorized agency charged with custody or care of\nthe child shall report the initial placement and any anticipated change\nin placement to the court and the attorneys for the parties, including\nthe attorney for the child, forthwith, but not later than one business\nday following either the decision to make the initial placement or to\nchange the placement or the actual date the initial placement or\nplacement change occurred, whichever is sooner. Such notice shall\nindicate the date that the placement change is anticipated to occur or\nthe date the placement change occurred, as applicable. Provided,\nhowever, if such notice lists an anticipated date for the initial\nplacement or placement change, the local social services district or\nauthorized agency shall subsequently notify the court and attorneys for\nthe parties, including the attorney for the child, of the date the\nplacement or placement change occurred; such notice shall occur no later\nthan one business day following the placement or placement change.\n (ii) When a child whose legal custody was transferred to the\ncommissioner of a local social services district in accordance with this\nsection resides in a qualified residential treatment program, as defined\nin section four hundred nine-h of this chapter, and where such child's\ninitial placement or change in placement in such program commenced on or\nafter September twenty-ninth, two thousand twenty-one, upon receipt of\nnotice required pursuant to subparagraph (i) of this paragraph and\nmotion of the local social services district, the court shall schedule a\ncourt review to make an assessment and determination of such placement\nin accordance with section three hundred ninety-three of this chapter.\nNotwithstanding any other provision of law to the contrary, such court\nreview shall occur no later than sixty days from the date the placement\nof the child in the qualified residential treatment program commenced.\n (4) Notice. (a) Upon the filing of a petition pursuant to this\nsection, the family court judge shall direct that service of a notice of\nthe proceeding and a copy of the petition shall be made upon such\npersons and in such manner as the judge may direct. If the instrument\nexecuted by the parent, parents or guardian of a child consents to the\njurisdiction of the family court over such proceeding, and waives\nservice of the petition and notice of proceeding, then the family court\njudge may, in his discretion, dispense with service upon the consenting\nparent, parents or guardian, provided, however, that a waiver of service\nof process and notice of the proceeding by a parent or guardian who has\ntransferred the care and custody of a child to an authorized agency,\npursuant to section three hundred eighty-four-a of this chapter, shall\nbe null and void and shall not be given effect by the court. Notice to\nany parent, parents or guardian who has not executed the instrument\nshall be required.\n (b) In the event the family court judge determines that service by\npublication is necessary and orders service by publication, service\nshall be made in accordance with the provisions of rule three hundred\nsixteen of the civil practice law and rules, provided, however, that a\nsingle publication of the summons or other process with a notice as\nspecified herein in only one newspaper designated in the order shall be\nsufficient. In no event shall the whole petition be published. The\npetition shall be delivered to the person summoned at the first court\nappearance pursuant to section one hundred fifty-four-a of the family\ncourt act. The notice to be published with the summons or other process\nshall state the date, time, place and purpose of the proceeding.\n (i) If the petition is initiated to transfer custody and guardianship\nof a child by an instrument executed pursuant to the provisions of\nsection three hundred eighty-four of this chapter, the notice to be\npublished shall also state that failure to appear may result, without\nfurther notice, in the transfer of custody and guardianship of the child\nto a social services official in this proceeding.\n (ii) If the petition is initiated to transfer care and custody of a\nchild by an instrument executed pursuant to the provisions of section\nthree hundred eighty-four-a of this chapter, the notice to be published\nshall also state that failure to appear may result, without further\nnotice, in the transfer of care and custody of the child to a social\nservices official in this proceeding.\n (5) Hearing and waiver. The instrument may include a consent by the\nparent, parents or guardian to waiver of any hearing and that a\ndetermination may be made by the family court judge based solely upon\nthe petition, and other papers and affidavits, if any, submitted to the\nfamily court judge, provided, however, that a waiver of hearing by a\nparent or guardian who has transferred the care and custody of a child\nto an authorized agency, pursuant to section three hundred eighty-four-a\nof this chapter, shall be effective only if such waiver was executed in\nan instrument separate from that transferring the child's care and\ncustody. In any case where an effective waiver has been executed, the\nfamily court judge may dispense with a hearing, approve the instrument\nand the transfer of the custody and guardianship or care and custody of\nthe child to the social services official and make the requisite\nfindings and determinations provided for in subdivision three of this\nsection, if it appears to the satisfaction of the family court judge\nthat the allegations in the petition are established sufficiently to\nwarrant the family court judge to grant such petition, to make such\nfindings and determination, and to issue such order.\n In any case where a hearing is required, the family court judge, if\nthe holding of an immediate hearing on notice is impractical, may\nforthwith, upon the basis of the instrument and the allegations of the\npetition, make a temporary finding that the parent, parents, or guardian\nof the child are unable to make adequate provision for the care,\nmaintenance and supervision of such child in the child's own home and\nthat the best interest and welfare of the child will be promoted by the\nremoval of such child from such home and thereupon, the family court\njudge shall make a temporary order transferring the care and custody of\nsuch child to the social services official, and shall set the matter\ndown for hearing on the first feasible date.\n (6) Representation. In any case where a hearing is directed by the\nfamily court judge, he or she shall, pursuant to section two hundred\nforty-nine of the family court act, appoint an attorney to represent the\nchild, who shall be admitted to practice law in the state of New York.\n (7) Return of child. If an instrument provides for the return of the\ncare and custody of a child by the local social services official to the\nparent, parents or guardian upon any terms and conditions or at any\ntime, the local social services official shall comply with such terms of\nsuch instrument without further court order. Every order approving an\ninstrument providing for the transfer of the care and custody of a child\nto a local social services official shall be served upon the parent,\nparents or guardian who executed such instrument in such manner as the\nfamily court judge may provide in such order, together with a notice of\nthe terms and conditions under which the care and custody of such child\nmay be returned to the parent, parents or guardian. If an instrument\nprovides for the return of the care and custody of a child by the local\nsocial services official to the parent, parents or guardian without\nfixing a definite date for such return, or if the local social services\nofficial shall fail to return a child to the care and custody of the\nchild's parent, parents or guardian in accordance with the terms of the\ninstrument, the parent, parents or guardian may seek such care and\ncustody by motion for return of such child and order to show cause in\nsuch proceeding or by writ of habeas corpus in the supreme court.\nNothing in this subdivision shall limit the requirement for a permanency\nhearing pursuant to article ten-A of the family court act.\n (8) Appealable orders. Any order of a family court denying any\npetition of a local social services official filed pursuant to this\nsection, or any order of a family court granting or denying any motion\nfiled by a parent, parents or guardian for return of a child pursuant to\nthis section, shall be deemed an order of disposition appealable\npursuant to article eleven of the family court act.\n (9) Duty of social services official. In the event that a family court\njudge denies a petition of a social services official for approval of an\ninstrument, upon a finding that the welfare of the child would not be\npromoted by foster care, such social services official shall not accept\nor retain the care and custody as a public charge or custody and\nguardianship of such child, provided, however, that the denial by a\nfamily court judge of a petition of a social services official filed\npursuant to this section shall not limit or affect the duty of such\nsocial services official to take such other action or offer such\nservices as are authorized by law to promote the welfare and best\ninterests of the child.\n (10) Visitation rights; non-custodial parents and grandparents. (a)\nWhere a social services official incorporates in an instrument\nvisitation rights set forth in an order, judgment or agreement as\ndescribed in paragraph (d) of subdivision two of section three hundred\neighty-four-a of this chapter, such official shall make inquiry of the\nstate central register of child abuse and maltreatment to determine\nwhether or not the person having such visitation rights is a subject or\nanother person named in an indicated report of child abuse or\nmaltreatment, as such terms are defined in section four hundred twelve\nof this chapter, and shall further ascertain, to the extent practicable,\nwhether or not such person is a respondent in a proceeding under article\nten of the family court act whereby the respondent has been alleged or\nadjudicated to have abused or neglected such child.\n (b) Where a social services official or the attorney for the child\nopposes incorporation of an order, judgment or agreement conferring\nvisitation rights as provided for in paragraph (e) of subdivision two of\nsection three hundred eighty-four-a of this chapter, the social services\nofficial or attorney for the child shall apply for an order determining\nthat the provisions of such order, judgment or agreement should not be\nincorporated into the instrument executed pursuant to such section. Such\norder shall be granted upon a finding, based on competent, relevant and\nmaterial evidence, that the child's life or health would be endangered\nby incorporation and enforcement of visitation rights as described in\nsuch order, judgment or agreement. Otherwise, the court shall deny such\napplication.\n (c) Where visitation rights pursuant to an order, judgment or\nagreement are incorporated in an instrument, the parties may agree to an\nalternative schedule of visitation equivalent to and consistent with the\noriginal or modified visitation order, judgment, or agreement where such\nalternative schedule reflects changed circumstances of the parties and\nis consistent with the best interests of the child. In the absence of\nsuch an agreement between the parties, the court may, in its discretion,\nupon application of any party or the child's attorney, order an\nalternative schedule of visitation, as described herein, where it\ndetermines that such schedule is necessary to facilitate visitation and\nto protect the best interests of the child.\n (d) The order providing an alternative schedule of visitation shall\nremain in effect for the length of the placement of the child as\nprovided for in such instrument unless such order is subsequently\nmodified by the court for good cause shown. Whenever the court makes an\norder denying or modifying visitation rights pursuant to this\nsubdivision, the instrument described in section three hundred\neighty-four-a of this chapter shall be deemed amended accordingly.\n (11) Siblings, placement and visitation. (a) In reviewing any petition\nbrought under this section, the court shall inquire if the social\nservices official has arranged for the placement of the child who is the\nsubject of the petition with any minor siblings or half-siblings who are\nplaced in care or, if such children have not been placed together,\nwhether such official has arranged for regular visitation and other\nforms of regular communication between such child and such siblings.\n (b) If the court determines that the subject child has not been placed\nwith his or her minor siblings or half-siblings who are in care, or that\nregular visitation and other forms of regular communication between the\nsubject child and his or her minor siblings or half-siblings has not\nbeen provided or arranged for, the court may direct such official to\nprovide or arrange for such placement or regular visitation and\ncommunication where the court finds that such placement or visitation\nand communication is in the child's and his or her siblings' or\nhalf-siblings' best interests. Placement or regular visitation and\ncommunication with siblings or half-siblings shall be presumptively in\nthe child's and his or her siblings' or half-siblings' best interests\nunless such placement or visitation and communication would be contrary\nto the child's or his or her siblings' or half-siblings' health, safety\nor welfare, or the lack of geographic proximity precludes or prevents\nvisitation.\n (c) If a child placed in foster care pursuant to this section is not\nplaced together or afforded regular communication with his or her\nsiblings, the child, through his or her attorney or through a parent on\nhis or her behalf, may move for an order regarding placement or\ncommunication. The motion shall be served upon: (i) the parent or\nparents in the proceeding under this section; (ii) the local social\nservices official having the care of the child; (iii) other persons\nhaving care, custody and control of the child, if any; (iv) the parents\nor other persons having care, custody and control of the siblings to be\nvisited or with whom contact is sought; (v) such sibling himself or\nherself if ten years of age or older; and (vi) such sibling's attorney,\nif any. Upon receipt of a motion filed under this paragraph the court\nshall determine, after giving notice and an opportunity to be heard to\nthe persons served, whether visitation and contact would be in the best\ninterests of the child and his or her siblings. The court may order that\nthe child be placed together with or have regular communication with his\nor her siblings if the court determines it to be in the best interests\nof the child and his or her siblings.\n (d) For purposes of this section, "siblings" shall include\nhalf-siblings and those who would be deemed siblings or half-siblings\nbut for the surrender, termination of parental rights or death of a\nparent.\n (12) For the purposes of this section, aggravated circumstances means\nwhere a child has been either severely or repeatedly abused, as defined\nin subdivision eight of section three hundred eighty-four-b of this\nchapter; or where a child has subsequently been found to be an abused\nchild, as defined in paragraph (i) or (iii) of subdivision (e) of\nsection one thousand twelve of the family court act, within five years\nafter return home following placement in foster care as a result of\nbeing found to be a neglected child, as defined in subdivision (f) of\nsection one thousand twelve of the family court act, provided that the\nrespondent or respondents in each of the foregoing proceedings was the\nsame; or where the court finds by clear and convincing evidence that the\nparent of a child in foster care has refused and has failed completely,\nover a period of at least six months from the date of removal, to engage\nin services necessary to eliminate the risk of abuse or neglect if\nreturned to the parent, and has failed to secure services on his or her\nown or otherwise adequately prepare for the return home and, after being\ninformed by the court that such an admission could eliminate the\nrequirement that the local department of social services provide\nreunification services to the parent, the parent has stated in court\nunder oath that he or she intends to continue to refuse such necessary\nservices and is unwilling to secure such services independently or\notherwise prepare for the child's return home; provided, however, that\nif the court finds that adequate justification exists for the failure to\nengage in or secure such services, including but not limited to a lack\nof child care, a lack of transportation, and an inability to attend\nservices that conflict with the parent's work schedule, such failure\nshall not constitute an aggravated circumstance; or where a court has\ndetermined a child five days old or younger was abandoned by a parent\nwith an intent to wholly abandon such child and with the intent that the\nchild be safe from physical injury and cared for in an appropriate\nmanner.\n