§ 384-A — Transfer of care and custody of children

§ 384-a. Transfer of care and custody of children. 1. Method. The care\nand custody of a child may be transferred by a parent or guardian, and\nthe care of a child may be transferred by any person to whom a parent\nhas entrusted the care of the child, to an authorized agency by a\nwritten instrument in accordance with the provisions of this section.\nSuch transfer by a person who is not the child's parent or guardian\nshall not affect the rights or obligations of the parents or guardian,\nand such transfer shall be deemed a transfer of the care and custody of\nthe child for the purposes of section three hundred fifty-eight-a of\nthis chapter.\n 1-a. Prior to accepting a transfer of care and custody, a local social\nservices official shall commence a search to locate any non-respondent\nparent of the child and shall conduct an immediate investigation to (a)\nlocate relatives of the child, including all of the child's\ngrandparents, all suitable relatives identified by either and any\nrelative identified by a child over the age of five as a relative who\nplays or has played a significant positive role in his or her life, and\nto inform them of the opportunity for becoming foster parents or for\nseeking custody or care of the child, and that the child may be adopted\nby foster parents if attempts at reunification with the birth parent are\nnot required or are unsuccessful; and to determine whether the child may\nappropriately be placed with a suitable person related to the child and\nwhether such relative seeks approval as a foster parent pursuant to this\nchapter for the purposes of providing care for such child, or wishes to\nprovide care and custody for the child until the parent or other person\nresponsible for the care of the child is able to resume custody; and (b)\nidentify minor siblings or half-siblings of the child and to determine\nwhether such siblings or half-siblings have been or are being\ntransferred to the care and custody of such official. Such official\nshall provide or arrange for the provision of care so as to permit the\nchild and his or her minor siblings or half-siblings to be placed\ntogether unless, in the judgment of such official, such placement would\nbe contrary to the best interests of the children; whereupon, such\nofficial shall provide or arrange for regular visitation and other forms\nof regular communication between such children unless, in the judgment\nof such official, such visitation and communication would be contrary to\nthe best interests of such children. Placement or regular visitation and\ncommunication with siblings or half-siblings shall be presumptively in\nthe child's best interests unless such placement or visitation and\ncommunication would be contrary to the child's health, safety or\nwelfare, or the lack of geographic proximity precludes or prevents\nvisitation.\n 1-b. Upon accepting the transfer of care and custody of a child from\nthe parent, guardian or other person to whom care of the child has been\nentrusted, a local social services official shall obtain information to\nthe extent known from such person regarding the other parent, any person\nto whom the parent transferring care and custody had been married at the\ntime of the conception or birth of the child, any person who would be\nentitled to consent to the adoption of the child pursuant to subdivision\none of section one hundred eleven of the domestic relations law, and any\nother person listed in subdivision two of section three hundred\neighty-four-c of this title. Such information shall include, but not be\nlimited to, such parent's or person's name, last-known address, social\nsecurity number, employer's address and any other identifying\ninformation. Any information provided pursuant to this subdivision shall\nbe recorded in the uniform case record maintained pursuant to section\nfour hundred nine-f of this article; provided, however, that the failure\nto provide such information shall not invalidate the transfer of care\nand custody.\n 2. Terms. (a) The instrument shall be upon such terms, for such time\nand subject to such conditions as may be agreed upon by the parties\nthereto. The office of children and family services may promulgate\nsuggested terms and conditions for inclusion in such instruments, but\nshall not require that any particular terms and conditions be included.\nIf the instrument provides that the child is to be returned by the\nauthorized agency on a date certain or upon the occurrence of an\nidentifiable event, such agency shall return such child at such time\nunless such action would be contrary to court order entered at any time\nprior to such date or event or within ten days thereafter pursuant to\nsection three hundred eighty-four-b of this title or article six, ten,\nor ten-A of the family court act or unless and so long as the parent or\nguardian is unavailable or incapacitated to receive the child. The\nparent or guardian may, upon written notice to such agency, request\nreturn of the child at any time prior to the identified date or event,\nwhereupon such agency may, without court order, return the child or,\nwithin ten days after such request, may notify the parent or guardian\nthat such request is denied. If such agency denies or fails to act upon\nsuch request, the parent or guardian may seek return of the care and\ncustody of the child by motion in family court for return of such child\nand order to show cause, or by writ of habeas corpus in the supreme\ncourt or family court. If the instrument fails to specify a date or\nidentifiable event upon which such agency shall return such child, such\nagency shall return the child within twenty days after having received\nnotice that the parent or guardian wishes the child returned, unless\nsuch action would be contrary to court order entered at any time prior\nto the expiration of such twenty day period pursuant to section three\nhundred eighty-four-b of this title or article six, ten, or ten-A of the\nfamily court act. Expenditures by a local social services district for\nthe care and maintenance of a child who has been continued in the care\nof an authorized agency in violation of the provisions of this\nsubdivision shall not be subject to state reimbursement.\n (b) No provisions set forth in any such instrument regarding the right\nof the parent or guardian to visit the child or to have services\nprovided to the child and to the parent or guardian to strengthen the\nparental relationship may be terminated or limited by the authorized\nagency having the care and custody of the child unless: (i) the\ninstrument shall have been amended to so limit or terminate such right,\npursuant to subdivision three of this section; or (ii) the right of\nvisitation or to such services would be contrary to or inconsistent with\na court order obtained in any proceeding in which the parent or guardian\nwas a party.\n (c) The instrument shall state, in lay terms, in conspicuous print of\nat least eighteen point type:\n (i) that the parent or guardian has the right, prior to signing the\ninstrument transferring the care and custody of the child to an\nauthorized agency, to legal representation of the parent's own choosing.\nThe agency shall provide the parent or guardian with a list of attorneys\nor legal services organizations, if any, which provide free legal\nservices to persons unable to otherwise obtain such services;\n (ii) that the parent or guardian has no legal obligation to transfer\nthe care and custody of the child to such official, and will incur no\nlegal sanction for failing to do so;\n (iii) that the law permits the instrument to specify a date certain or\nan identifiable event upon which the child is to be returned, and if no\ndate or event is specified, that the parent or guardian has a right to\nthe return of the child within twenty days of a request for return,\nunless otherwise ordered by the court; and to otherwise have the child\nreturned in accordance with the terms of the instrument and the\nprovisions of this section;\n (iv) that the parent or guardian has a right to supportive services,\nwhich shall include preventive and other supportive services authorized\nto be provided pursuant to the state's consolidated services plan, to\nvisit the child, and to determine jointly with the agency the terms and\nfrequency of visitation;\n (v) that the parent or guardian, subject to the terms of the\ninstrument, has an obligation\n (A) to visit the child,\n (B) to plan for the future of the child,\n (C) to meet with and consult with the agency about such plan,\n (D) to contribute to the support of the child to the extent of his or\nher financial ability to do so, and\n (E) to inform the agency of any change of name and address;\n (vi) that the failure of the parent or guardian to meet the\nobligations listed in subparagraph (v) could be the basis for a court\nproceeding for the commitment of the guardianship and custody of the\nchild to an authorized agency thereby terminating parental rights;\n (vii) that the parent or guardian has a right to a fair hearing\npursuant to section twenty-two of this chapter concerning the agency's\nfailure to permit the parent or guardian to visit the child or to\nprovide supportive services, which shall include preventive and other\nsupportive services authorized to be provided pursuant to the state's\nconsolidated services plan, to the child and to the parent or guardian;\n (viii) the amount of money which the parent will periodically\ncontribute to the support of the child and the schedule for such\npayments, if known.\n (ix) that if the child remains in foster care for fifteen of the most\nrecent twenty-two months, the agency may be required by law to file a\npetition to terminate parental rights.\n (d) In any case where a parent who has transferred care and custody of\na child to a social services official pursuant to this section informs\nthe social services official that an order or judgment conferring\nvisitation rights relating to the child has been entered by the family\ncourt or supreme court or that a written agreement as described in\nsection two hundred thirty-six of the domestic relations law between the\nparents confers such rights, any instrument executed pursuant to this\nsection shall incorporate the provisions of such order, judgment or\nagreement to the extent that visitation rights are affected and shall\nprovide for visitation or other rights as required by such order,\njudgment or agreement. Such incorporation shall not preclude a social\nservices official from exercising his authority pursuant to paragraph\n(e) or (f) of this subdivision.\n (e) Where a social services official opposes incorporation of an\norder, judgment or agreement described in paragraph (d) of this\nsubdivision, such official may, upon execution of the instrument\ndescribed in this section and upon notice to the non-custodial parent or\ngrandparent named in such order, judgment or agreement, be heard thereon\nin a proceeding pursuant to section three hundred fifty-eight-a of this\nchapter.\n (f) Nothing in this section shall be deemed to prohibit a social\nservices official or an attorney for the child, if any, from making an\napplication to modify the terms of a visitation order, incorporated\npursuant to this section, for good cause shown, upon notice to all\ninterested parties, or to limit the right of a non-custodial parent or\ngrandparent to seek visitation pursuant to applicable provisions of law.\n (g) In the event a child whose care and custody is transferred\npursuant to this section is admitted to a hospital operated or licensed\nby the office of mental health and cannot be returned to the physical\ncustody of his or her parent or guardian upon request because, pursuant\nto section four hundred of this chapter, the medical director of the\nfacility has not authorized the removal of the child, the child shall\nnonetheless be deemed to have been returned to the legal care and\ncustody of his or her parent or guardian. Expenditures by a social\nservices district for the care and maintenance of such a child shall be\nsubject to state reimbursement notwithstanding the provisions of section\none hundred fifty-three-b of this chapter.\n (h) (i) Where a local social services official determines that a child\nis at significant risk of placement in the care and custody of the local\ncommissioner of social services during the eighteen months immediately\nfollowing review by such official because the custodial parent or legal\nguardian of such child is suffering from a progressively chronic or\nirreversibly fatal illness and it is determined that there is neither a\nrelative nor a close friend identified by the custodial parent or the\nlegal guardian able to assume legal guardianship of the child, the\ncustodial parent or legal guardian shall be assisted by the local social\nservices district in transferring the care and custody of the child to\nan authorized agency by a written instrument in accordance with the\nprovisions for this section which provides the transfer shall not take\neffect until the parent or legal guardian dies, becomes debilitated or\nincapacitated as defined in subdivision one of section seventeen hundred\ntwenty-six of the surrogate's court procedure act.\n (ii) Where a local social services official determines that a child is\nat significant risk of placement in the care and custody of the local\ncommissioner of social services during the eighteen months immediately\nfollowing a review of such official because the custodial parent or\nlegal guardian is suffering from a progressively chronic or irreversibly\nfatal illness and there is a relative or close friend identified by the\ncustodial parent or legal guardian who is able and willing to assume\ncare and custody of the child, but who requires foster care services and\nfinancial support thereof pursuant to section three hundred\nninety-eight-a of this article, the custodial parent or legal guardian\nshall be assisted by the local social services district in transferring\nthe care and custody of the child to an authorized agency by a written\ninstrument in accordance with the provisions of this section. Such\ninstrument shall provide that the transfer of custody shall not take\neffect until the parent or legal guardian dies, becomes debilitated or\nincapacitated as defined in subdivision one of section seventeen hundred\ntwenty-six of the surrogate's court procedure act. If otherwise\nqualified, the social services official shall assist the person\nidentified to accept care and custody of the child to become certified\nas a foster parent.\n (iii) A local social services official who accepts or proposes to\naccept the care and custody of a child by means of a written instrument\nexecuted pursuant to this paragraph, shall, pursuant to section three\nhundred fifty-eight-a of this chapter, petition the family court of the\ncounty or city in which the local social services official has his or\nher office to approve such written instrument. A written instrument\nexecuted pursuant to this paragraph and approved pursuant to section\nthree hundred fifty-eight-a of this chapter shall be in effect until the\ncourt reviews the child's placement pursuant to article ten-A of the\nfamily court act. The status of a child subject to such an instrument\nshall be reviewed by the court pursuant to article ten-A of the family\ncourt act.\n (iv) Upon receiving a notice from the custodial parent or the legal\nguardian that the parent or legal guardian is no longer debilitated or\nincapacitated and that the parent or legal guardian requests the\nimmediate return of the child, the social services district shall return\nsuch child to the parent or legal guardian within ten days of receiving\nnotice, except where a contrary court order has been issued pursuant to\npart two, five or seven of article ten of the family court act.\n 3. Amendment. (a) The parties to the instrument or anyone acting on\ntheir behalf with their consent may amend it by mutual consent but only\nby a supplemental instrument executed in the same manner as the original\ninstrument. The supplemental instrument shall be attached to, and become\npart of, the original instrument. The supplemental instrument shall\ncontain the recitation required in paragraph (c) of subdivision two of\nthis section.\n (b) The instrument shall also be deemed amended where ordered by the\nfamily court pursuant to the provisions of paragraph (d) of subdivision\nten of section three hundred fifty-eight-a of this chapter.\n 4. Execution. The instrument shall be executed in the presence of one\nor more witnesses and shall include only the provisions, terms and\nconditions agreed upon by the parties thereto.\n 5. Records. The instrument shall be kept in a file maintained for that\npurpose by the agency accepting the care and custody of the child. A\ncopy of the instrument shall be given to the parent or guardian at the\ntime of the execution of the instrument.\n 6. An instrument executed pursuant to the provisions of this section\nshall not constitute a remand or commitment pursuant to this chapter.\n