§ 384-B — Guardianship and custody of destitute or dependent children; commitment by court order; modification of commitment and restoration of par...

§ 384-b. Guardianship and custody of destitute or dependent children;\ncommitment by court order; modification of commitment and restoration of\nparental rights.\n 1. Statement of legislative findings and intent.\n (a) The legislature recognizes that the health and safety of children\nis of paramount importance. To the extent it is consistent with the\nhealth and safety of the child, the legislature further hereby finds\nthat:\n (i) it is desirable for children to grow up with a normal family life\nin a permanent home and that such circumstance offers the best\nopportunity for children to develop and thrive;\n (ii) it is generally desirable for the child to remain with or be\nreturned to the birth parent because the child's need for a normal\nfamily life will usually best be met in the home of its birth parent,\nand that parents are entitled to bring up their own children unless the\nbest interests of the child would be thereby endangered;\n (iii) the state's first obligation is to help the family with services\nto prevent its break-up or to reunite it if the child has already left\nhome; and\n (iv) when it is clear that the birth parent cannot or will not provide\na normal family home for the child and when continued foster care is not\nan appropriate plan for the child, then a permanent alternative home\nshould be sought for the child.\n (b) The legislature further finds that many children who have been\nplaced in foster care experience unnecessarily protracted stays in such\ncare without being adopted or returned to their parents or other\ncustodians. Such unnecessary stays may deprive these children of\npositive, nurturing family relationships and have deleterious effects on\ntheir development into responsible, productive citizens. The legislature\nfurther finds that provision of a timely procedure for the termination,\nin appropriate cases, of the rights of the birth parents could reduce\nsuch unnecessary stays.\n It is the intent of the legislature in enacting this section to\nprovide procedures not only assuring that the rights of the birth parent\nare protected, but also, where positive, nurturing parent-child\nrelationships no longer exist, furthering the best interests, needs, and\nrights of the child by terminating parental rights and freeing the child\nfor adoption.\n 2. For the purposes of this section, (a) "child" shall mean a person\nunder the age of eighteen years; and, (b) "parent" shall include an\nincarcerated parent unless otherwise qualified.\n 3. (a) The guardianship of the person and the custody of a destitute\nor dependent child may be committed to an authorized agency, or to a\nfoster parent authorized pursuant to section one thousand eighty-nine of\nthe family court act to institute a proceeding under this section, or to\na relative with care and custody of the child, by order of a surrogate\nor judge of the family court, as hereinafter provided. Where such\nguardianship and custody is committed to a foster parent or to a\nrelative with care and custody of the child, the family court or\nsurrogate's court shall retain continuing jurisdiction over the parties\nand the child and may, upon its own motion or the motion of any party,\nrevoke, modify or extend its order, if the foster parent or relative\nfails to institute a proceeding for the adoption of the child within six\nmonths after the entry of the order committing the guardianship and\ncustody of the child to such foster parent or relative. Where the foster\nparent or relative institutes a proceeding for the adoption of the child\nand the adoption petition is finally denied or dismissed, the court\nwhich committed the guardianship and custody of the child to the foster\nparent or relative shall revoke the order of commitment. Where the court\nrevokes an order committing the guardianship and custody of a child to a\nfoster parent or relative, it shall commit the guardianship and custody\nof the child to an authorized agency.\n (b) A proceeding under this section may be originated by an authorized\nagency or by a foster parent authorized to do so pursuant to section one\nthousand eighty-nine of the family court act or by a relative with care\nand custody of the child or, if an authorized agency ordered by the\ncourt to originate a proceeding under this section fails to do so within\nthe time fixed by the court, by the child's attorney or guardian ad\nlitem on the court's direction.\n (c) Where a child was placed or continued in foster care pursuant to\narticle ten, ten-A or ten-C of the family court act or section three\nhundred fifty-eight-a of this chapter, a proceeding under this section\nshall be originated in the family court in the county in which the\nproceeding pursuant to article ten, ten-A or ten-C of the family court\nact or section three hundred fifty-eight-a of this chapter was last\nheard and shall be assigned, wherever practicable, to the judge who last\nheard such proceeding. Where multiple proceedings are commenced under\nthis section concerning a child and one or more siblings or\nhalf-siblings of such child, placed or continued in foster care with the\nsame commissioner pursuant to section one thousand fifty-five, one\nthousand eighty-nine or one thousand ninety-five of the family court\nact, all of such proceedings may be commenced jointly in the family\ncourt in any county which last heard a proceeding under article ten,\nten-A or ten-C of the family court act regarding any of the children who\nare the subjects of the proceedings under this section. In such\ninstances, the case shall be assigned, wherever practicable, to the\njudge who last presided over such proceeding. In any other case, a\nproceeding under this section, including a proceeding brought in the\nsurrogate's court, shall be originated in the county where either of the\nparents of the child reside at the time of the filing of the petition,\nif known, or, if such residence is not known, in the county in which the\nauthorized agency has an office for the regular conduct of business or\nin which the child resides at the time of the initiation of the\nproceeding. To the extent possible, the court shall, when appointing an\nattorney for the child, appoint an attorney who has previously\nrepresented the child.\n (c-1) Before hearing a petition under this section, the court in which\nthe termination of parental rights petition has been filed shall\nascertain whether the child is under the jurisdiction of a family court\npursuant to a placement in a child protective or foster care proceeding\nor continuation in out-of-home care pursuant to a permanency hearing\nand, if so, which court exercised jurisdiction over the most recent\nproceeding. If the court determines that the child is under the\njurisdiction of a different family court, the court in which the\ntermination of parental rights petition was filed shall stay its\nproceeding for not more than thirty days and shall communicate with the\ncourt that exercised jurisdiction over the most recent proceeding. The\ncommunication shall be recorded or summarized on the record by the court\nin which the termination of parental rights petition was filed. Both\ncourts shall notify the parties and child's attorney, if any, in their\nrespective proceedings and shall give them an opportunity to present\nfacts and legal argument or to participate in the communication prior to\nthe issuance of a decision on jurisdiction. The court that exercised\njurisdiction over the most recent proceeding shall determine whether it\nwill accept or decline jurisdiction over the termination of parental\nrights petition. This determination of jurisdiction shall be\nincorporated into an order regarding jurisdiction that shall be issued\nby the court in which the termination of parental rights petition was\nfiled within thirty days of such filing. If the court that exercised\njurisdiction over the most recent proceeding determines that it should\nexercise jurisdiction over the termination of parental rights petition,\nthe order shall require that the petition shall be transferred to that\ncourt forthwith but in no event more than thirty-five days after the\nfiling of the petition. The petition shall be assigned, wherever\npracticable, to the judge who heard the most recent proceeding. If the\ncourt that exercised jurisdiction over the most recent proceeding\ndeclines to exercise jurisdiction over the adoption petition, the court\nin which the termination of parental rights petition was filed shall\nissue an order incorporating that determination and shall proceed\nforthwith.\n (d) The family court shall have exclusive, original jurisdiction over\nany proceeding brought upon grounds specified in paragraph (c), (d) or\n(e) of subdivision four of this section, and the family court and\nsurrogate's court shall have concurrent, original jurisdiction over any\nproceeding brought upon grounds specified in paragraph (a) or (b) of\nsubdivision four of this section, except as provided in paragraphs (c)\nand (c-1) of this subdivision.\n (e) A proceeding under this section is originated by a petition on\nnotice served upon the child's parent or parents, the attorney for the\nchild's parent or parents and upon such other persons as the court may\nin its discretion prescribe. Such notice shall inform the parents and\nsuch other persons that the proceeding may result in an order freeing\nthe child for adoption without the consent of or notice to the parents\nor such other persons. Such notice also shall inform the parents and\nsuch other persons of their right to the assistance of counsel,\nincluding any right they may have to have counsel assigned by the court\nin any case where they are financially unable to obtain counsel. When\nthe proceeding is initiated in family court service of the petition and\nother process shall be made in accordance with the provisions of section\nsix hundred seventeen of the family court act, and when the proceeding\nis initiated in surrogate's court, service shall be made in accordance\nwith the provisions of section three hundred seven of the surrogate's\ncourt procedure act. When the proceeding is initiated on the grounds of\nabandonment of a child less than one year of age at the time of the\ntransfer of the care and custody of such child to a local social\nservices official, the court shall take judicial notice of efforts to\nlocate the child's parents or other known relatives or other persons\nlegally responsible pursuant to paragraph (ii) of subdivision (b) of\nsection one thousand fifty-five of the family court act.\n (f) In any proceeding under this section in which the surrogate's\ncourt has exercised jurisdiction, the provisions of the surrogate's\ncourt procedure act shall apply to the extent that they do not conflict\nwith the specific provisions of this section. In any proceeding under\nthis section in which the family court has exercised jurisdiction, the\nprovisions of articles one, two and eleven of the family court act shall\napply to the extent that they do not conflict with the specific\nprovisions of this section. In any proceeding under this section, the\nprovisions and limitations of article thirty-one of the civil practice\nlaw and rules shall apply to the extent that they do not conflict with\nthe specific provisions of this section. In determining any motion for a\nprotective order, the court shall consider the need of the party for the\ndiscovery to assist in the preparation of the case and any potential\nharm to the child from the discovery. The court shall set a schedule for\ndiscovery to avoid unnecessary delay. Any proceeding originated in\nfamily court upon the ground specified in paragraph (d) of subdivision\nfour of this section shall be conducted in accordance with the\nprovisions of part one of article six of the family court act.\n (g) (i) An order committing the guardianship and custody of a child\npursuant to this section shall be granted only upon a finding that one\nor more of the grounds specified in subdivision four of this section are\nbased upon clear and convincing proof.\n (ii) Where a proceeding has been properly commenced under this section\nby the filing of a petition before the eighteenth birthday of a child,\nan order committing the guardianship and custody of a child pursuant to\nthis section upon a finding under subdivision four of this section shall\nbe granted after the eighteenth birthday of a child where the child\nconsents to such disposition.\n (h) In any proceeding brought upon a ground set forth in paragraph (c)\nof subdivision four, neither the privilege attaching to confidential\ncommunications between husband and wife, as set forth in section\nforty-five hundred two of the civil practice law and rules, nor the\nphysician-patient and related privileges, as set forth in section\nforty-five hundred four of the civil practice law and rules, nor the\npsychologist-client privilege, as set forth in section forty-five\nhundred seven of the civil practice law and rules, nor the social\nworker-client privilege, as set forth in section forty-five hundred\neight of the civil practice law and rules, shall be a ground for\nexcluding evidence which otherwise would be admissible.\n (i) In a proceeding instituted by an authorized agency pursuant to the\nprovisions of this section, proof of the likelihood that the child will\nbe placed for adoption shall not be required in determining whether the\nbest interests of the child would be promoted by the commitment of the\nguardianship and custody of the child to an authorized agency.\n (j) The order and the papers upon which it was granted in a proceeding\nunder this section shall be filed in the court, and a certified copy of\nsuch order shall also be filed in the office of the county clerk of the\ncounty in which such court is located, there to be recorded and to be\ninspected or examined in the same manner as a surrender instrument,\npursuant to the provisions of section three hundred eighty-four of this\nchapter.\n (k) Where the child is over fourteen years of age, the court may, in\nits discretion, consider the wishes of the child in determining whether\nthe best interests of the child would be promoted by the commitment of\nthe guardianship and custody of the child.\n (l) (i) Notwithstanding any other law to the contrary, whenever: the\nchild shall have been in foster care for fifteen months of the most\nrecent twenty-two months; or a court of competent jurisdiction has\ndetermined the child to be an abandoned child; or the parent has been\nconvicted of a crime as set forth in subdivision eight of this section,\nthe authorized agency having care of the child shall file a petition\npursuant to this section unless based on a case by case determination:\n(A) the child is being cared for by a relative or relatives; or (B) the\nagency has documented in the most recent case plan, a copy of which has\nbeen made available to the court, a compelling reason for determining\nthat the filing of a petition would not be in the best interest of the\nchild; or (C) the agency has not provided to the parent or parents of\nthe child such services as it deems necessary for the safe return of the\nchild to the parent or parents, unless such services are not legally\nrequired; or (D) the parent or parents are incarcerated, in immigration\ndetention or immigration removal proceedings, or participating in a\nresidential substance abuse treatment program, or the prior\nincarceration, immigration detention or immigration removal proceedings,\nor participation of a parent or parents in a residential substance abuse\ntreatment program is a significant factor in why the child has been in\nfoster care for fifteen of the last twenty-two months, provided that the\nparent maintains a meaningful role in the child's life based on the\ncriteria set forth in subparagraph (v) of this paragraph and the agency\nhas not documented a reason why it would otherwise be appropriate to\nfile a petition pursuant to this section.\n (ii) For the purposes of this section, a compelling reason whereby a\nsocial services official is not required to file a petition for\ntermination of parental rights in accordance with subparagraph (i) of\nthis paragraph includes, but is not limited to, where:\n (A) the child was placed into foster care pursuant to article three or\nseven of the family court act and a review of the specific facts and\ncircumstances of the child's placement demonstrate that the appropriate\npermanency goal for the child is either (1) return to his or her parent\nor guardian or (2) discharge to independent living;\n (B) the child has a permanency goal other than adoption;\n (C) the child is fourteen years of age or older and will not consent\nto his or her adoption;\n (D) there are insufficient grounds for filing a petition to terminate\nparental rights; or\n (E) the child is the subject of a pending disposition under article\nten of the family court act, except where such child is already in the\ncustody of the commissioner of social services as a result of a\nproceeding other than the pending article ten proceeding, and a review\nof the specific facts and circumstances of the child's placement\ndemonstrate that the appropriate permanency goal for the child is\ndischarge to his or her parent or guardian.\n (iii) For the purposes of this paragraph, the date of the child's\nentry into foster care is the earlier of sixty days after the date on\nwhich the child was removed from the home or the date the child was\nfound by a court to be an abused or neglected child pursuant to article\nten of the family court act.\n (iv) In the event that the social services official or authorized\nagency having care and custody of the child fails to file a petition to\nterminate parental rights within sixty days of the time required by this\nsection, or within ninety days of a court direction to file a proceeding\nnot otherwise required by this section, such proceeding may be filed by\nthe foster parent of the child without further court order or by the\nattorney for the child on the direction of the court. In the event of\nsuch filing the social services official or authorized agency having\ncare and custody of the child shall be served with notice of the\nproceeding and shall join the petition.\n (v) For the purposes of clause (D) of subparagraph (i) of this\nparagraph, an assessment of whether a parent maintains a meaningful role\nin his or her child's life shall be based on evidence, which may include\nthe following: a parent's expressions or acts manifesting concern for\nthe child, such as letters, telephone calls, visits, and other forms of\ncommunication with the child; efforts by the parent to communicate and\nwork with the authorized agency, attorney for the child, foster parent,\nthe court, and the parent's attorney or other individuals providing\nservices to the parent, including correctional, mental health and\nsubstance abuse treatment program personnel for the purpose of complying\nwith the service plan and repairing, maintaining or building the\nparent-child relationship; a positive response by the parent to the\nauthorized agency's diligent efforts as defined in paragraph (f) of\nsubdivision seven of this section; and whether the continued involvement\nof the parent in the child's life is in the child's best interest. In\nassessing whether a parent maintains a meaningful role in his or her\nchild's life, the authorized agency shall gather input from individuals\nand agencies in a reasonable position to help make this assessment,\nincluding but not limited to, the authorized agency, attorney for the\nchild, parent, child, foster parent or other individuals of importance\nin the child's life, and parent's attorney or other individuals\nproviding services to the parent, including correctional, mental health\nand substance abuse treatment program personnel. The court may make an\norder directing the authorized agency to undertake further steps to aid\nin completing its assessment.\n 4. An order committing the guardianship and custody of a child\npursuant to this section shall be granted only upon one or more of the\nfollowing grounds:\n (a) Both parents of the child are dead, and no guardian of the person\nof such child has been lawfully appointed; or\n (b) The parent or parents, whose consent to the adoption of the child\nwould otherwise be required in accordance with section one hundred\neleven of the domestic relations law, abandoned such child for the\nperiod of six months immediately prior to the date on which the petition\nis filed in the court; or\n (c) The parent or parents, whose consent to the adoption of the child\nwould otherwise be required in accordance with section one hundred\neleven of the domestic relations law, are presently and for the\nforeseeable future unable, by reason of mental illness or intellectual\ndisability, to provide proper and adequate care for a child who has been\nin the care of an authorized agency for the period of one year\nimmediately prior to the date on which the petition is filed in the\ncourt; or\n (d) The child is a permanently neglected child; or\n (e) The parent or parents, whose consent to the adoption of the child\nwould otherwise be required in accordance with section one hundred\neleven of the domestic relations law, severely or repeatedly abused such\nchild. Where a court has determined that reasonable efforts to reunite\nthe child with his or her parent are not required, pursuant to the\nfamily court act or this chapter, a petition to terminate parental\nrights on the ground of severe abuse as set forth in subparagraph (iii)\nof paragraph (a) of subdivision eight of this section may be filed\nimmediately upon such determination.\n 5. (a) For the purposes of this section, a child is "abandoned" by his\nparent if such parent evinces an intent to forego his or her parental\nrights and obligations as manifested by his or her failure to visit the\nchild and communicate with the child or agency, although able to do so\nand not prevented or discouraged from doing so by the agency. In the\nabsence of evidence to the contrary, such ability to visit and\ncommunicate shall be presumed.\n (b) The subjective intent of the parent, whether expressed or\notherwise, unsupported by evidence of the foregoing parental acts\nmanifesting such intent, shall not preclude a determination that such\nparent has abandoned his or her child. In making such determination, the\ncourt shall not require a showing of diligent efforts, if any, by an\nauthorized agency to encourage the parent to perform the acts specified\nin paragraph (a) of this subdivision.\n 6. (a) For the purposes of this section, "mental illness" means an\naffliction with a mental disease or mental condition which is manifested\nby a disorder or disturbance in behavior, feeling, thinking or judgment\nto such an extent that if such child were placed in or returned to the\ncustody of the parent, the child would be in danger of becoming a\nneglected child as defined in the family court act.\n (b) For the purposes of this section, "intellectual disability" means\nsubaverage intellectual functioning which originates during the\ndevelopmental period and is associated with impairment in adaptive\nbehavior to such an extent that if such child were placed in or returned\nto the custody of the parent, the child would be in danger of becoming a\nneglected child as defined in the family court act; provided, however,\nthat case law regarding use of the phrase "mental retardation" under\nthis section shall be applicable to the term "intellectual disability".\n (c) The legal sufficiency of the proof in a proceeding upon the ground\nset forth in paragraph (c) of subdivision four of this section shall not\nbe determined until the judge has taken the testimony of a psychologist,\nor psychiatrist, in accordance with paragraph (e) of this subdivision.\n (d) A determination or order upon a ground set forth in paragraph (c)\nof subdivision four shall in no way affect any other right, or\nconstitute an adjudication of the legal status of the parent.\n (e) In every proceeding upon a ground set forth in paragraph (c) of\nsubdivision four the judge shall order the parent to be examined by, and\nshall take the testimony of, a qualified psychiatrist or a psychologist\nlicensed pursuant to article one hundred fifty-three of the education\nlaw as defined in section 730.10 of the criminal procedure law in the\ncase of a parent alleged to be mentally ill or retarded, such\npsychologist or psychiatrist to be appointed by the court pursuant to\nsection thirty-five of the judiciary law. The parent and the authorized\nagency shall have the right to submit other psychiatric, psychological\nor medical evidence. If the parent refuses to submit to such\ncourt-ordered examination, or if the parent renders himself unavailable\ntherefor whether before or after the initiation of a proceeding under\nthis section, by departing from the state or by concealing himself\ntherein, the appointed psychologist or psychiatrist, upon the basis of\nother available information, including, but not limited to, agency,\nhospital or clinic records, may testify without an examination of such\nparent, provided that such other information affords a reasonable basis\nfor his opinion.\n 7. (a) For the purposes of this section, "permanently neglected\nchild" shall mean a child who is in the care of an authorized agency and\nwhose parent or custodian has failed for a period of either at least one\nyear or fifteen out of the most recent twenty-two months following the\ndate such child came into the care of an authorized agency substantially\nand continuously or repeatedly to maintain contact with or plan for the\nfuture of the child, although physically and financially able to do so,\nnotwithstanding the agency's diligent efforts to encourage and\nstrengthen the parental relationship when such efforts will not be\ndetrimental to the best interests of the child. The court shall consider\nthe special circumstances of an incarcerated parent or parents, or of a\nparent or parents participating in a residential substance abuse\ntreatment program, when determining whether a child is a "permanently\nneglected child" as defined in this paragraph. In such cases, the court\nalso shall consider the particular constraints, including but not\nlimited to, limitations placed on family contact and the unavailability\nof social or rehabilitative services to aid in the development of a\nmeaningful relationship between the parent and his or her child, that\nmay impact the parent's ability to substantially and continuously or\nrepeatedly maintain contact with his or her child and to plan for the\nfuture of his or her child as defined in paragraph (c) of this\nsubdivision. Where a court has previously determined in accordance with\nparagraph (b) of subdivision three of section three hundred\nfifty-eight-a of this chapter or section one thousand thirty-nine-b,\nsubparagraph (A) of paragraph (i) of subdivision (b) of section one\nthousand fifty-two, paragraph (b) of subdivision two of section seven\nhundred fifty-four or paragraph (c) of subdivision two of section 352.2\nof the family court act that reasonable efforts to make it possible for\nthe child to return safely to his or her home are not required, the\nagency shall not be required to demonstrate diligent efforts as defined\nin this section. In the event that the parent defaults after due notice\nof a proceeding to determine such neglect, such physical and financial\nability of such parent may be presumed by the court.\n (b) For the purposes of paragraph (a) of this subdivision, evidence of\ninsubstantial or infrequent contacts by a parent with his or her child\nshall not, of itself, be sufficient as a matter of law to preclude a\ndetermination that such child is a permanently neglected child. A visit\nor communication by a parent with the child which is of such character\nas to overtly demonstrate a lack of affectionate and concerned\nparenthood shall not be deemed a substantial contact.\n (c) As used in paragraph (a) of this subdivision, "to plan for the\nfuture of the child" shall mean to take such steps as may be necessary\nto provide an adequate, stable home and parental care for the child\nwithin a period of time which is reasonable under the financial\ncircumstances available to the parent. The plan must be realistic and\nfeasible, and good faith effort shall not, of itself, be determinative.\nIn determining whether a parent has planned for the future of the child,\nthe court may consider the failure of the parent to utilize medical,\npsychiatric, psychological and other social and rehabilitative services\nand material resources made available to such parent.\n (d) For the purposes of this subdivision:\n (i) A parent shall not be deemed unable to maintain contact with or\nplan for the future of the child by reason of such parent's use of drugs\nor alcohol, except while the parent is actually hospitalized or\ninstitutionalized therefor; and\n (ii) The time during which a parent is actually hospitalized or\ninstitutionalized shall not interrupt, but shall not be part of, a\nperiod of failure to maintain contact with or plan for the future of a\nchild.\n (e) Notwithstanding the provisions of paragraph (a) of this\nsubdivision, evidence of diligent efforts by an agency to encourage and\nstrengthen the parental relationship shall not be required when:\n (i) The parent has failed for a period of six months to keep the\nagency apprised of his or her location, provided that the court may\nconsider the particular delays or barriers an incarcerated parent or\nparents, or a parent or parents participating in a residential substance\nabuse treatment program, may experience in keeping the agency apprised\nof his or her location; or\n (ii) An incarcerated parent has failed on more than one occasion while\nincarcerated to cooperate with an authorized agency in its efforts to\nassist such parent to plan for the future of the child, as such phrase\nis defined in paragraph (c) of this subdivision, or in such agency's\nefforts to plan and arrange visits with the child as described in\nsubparagraph five of paragraph (f) of this subdivision.\n (f) As used in this subdivision, "diligent efforts" shall mean\nreasonable attempts by an authorized agency to assist, develop and\nencourage a meaningful relationship between the parent and child,\nincluding but not limited to:\n (1) consultation and cooperation with the parents in developing a plan\nfor appropriate services to the child and his family;\n (2) making suitable arrangements for the parents to visit the child\nexcept that with respect to an incarcerated parent, arrangements for the\nincarcerated parent to visit the child outside the correctional facility\nshall not be required unless reasonably feasible and in the best\ninterest of the child;\n (3) provision of services and other assistance to the parents, except\nincarcerated parents, so that problems preventing the discharge of the\nchild from care may be resolved or ameliorated;\n (4) informing the parents at appropriate intervals of the child's\nprogress, development and health;\n (5) making suitable arrangements with a correctional facility and\nother appropriate persons for an incarcerated parent to visit the child\nwithin the correctional facility, if such visiting is in the best\ninterests of the child. When no visitation between child and\nincarcerated parent has been arranged for or permitted by the authorized\nagency because such visitation is determined not to be in the best\ninterest of the child, then no permanent neglect proceeding under this\nsubdivision shall be initiated on the basis of the lack of such\nvisitation. Such arrangements shall include, but shall not be limited\nto, the transportation of the child to the correctional facility, and\nproviding or suggesting social or rehabilitative services to resolve or\ncorrect the problems other than incarceration itself which impair the\nincarcerated parent's ability to maintain contact with the child. When\nthe parent is incarcerated in a correctional facility located outside\nthe state, the provisions of this subparagraph shall be construed to\nrequire that an authorized agency make such arrangements with the\ncorrectional facility only if reasonably feasible and permissible in\naccordance with the laws and regulations applicable to such facility;\nand\n (6) providing information which the authorized agency shall obtain\nfrom the office of children and family services, outlining the legal\nrights and obligations of a parent who is incarcerated or in a\nresidential substance abuse treatment program whose child is in custody\nof an authorized agency, and on social or rehabilitative services\navailable in the community, including family visiting services, to aid\nin the development of a meaningful relationship between the parent and\nchild. Wherever possible, such information shall include transitional\nand family support services located in the community to which an\nincarcerated parent or parent participating in a residential substance\nabuse treatment program shall return.\n 8. (a) For the purposes of this section a child is "severely abused"\nby his or her parent if (i) the child has been found to be an abused\nchild as a result of reckless or intentional acts of the parent\ncommitted under circumstances evincing a depraved indifference to human\nlife, which result in serious physical injury to the child as defined in\nsubdivision ten of section 10.00 of the penal law; or\n (ii) the child has been found to be an abused child, as defined in\nparagraph (iii) of subdivision (e) of section ten hundred twelve of the\nfamily court act, as a result of such parent's acts; provided, however,\nthe respondent must have committed or knowingly allowed to be committed\na felony sex offense as defined in sections 130.25, 130.30, 130.35,\nformer sections 130.40, 130.45, 130.50, sections 130.65, 130.67, 130.70,\n130.75, 130.80, 130.95 and 130.96 of the penal law and, for the purposes\nof this section the corroboration requirements contained in the penal\nlaw shall not apply to proceedings under this section; or\n (iii) (A) the parent of such child has been convicted of murder in the\nfirst degree as defined in section 125.27, murder in the second degree\nas defined in section 125.25, manslaughter in the first degree as\ndefined in section 125.20, or manslaughter in the second degree as\ndefined in section 125.15, and the victim of any such crime was another\nchild of the parent or another child for whose care such parent is or\nhas been legally responsible as defined in subdivision (g) of section\none thousand twelve of the family court act, or another parent of the\nchild, unless the convicted parent was a victim of physical, sexual or\npsychological abuse by the decedent parent and such abuse was a factor\nin causing the homicide; or has been convicted of an attempt to commit\nany of the foregoing crimes, and the victim or intended victim was the\nchild or another child of the parent or another child for whose care\nsuch parent is or has been legally responsible as defined in subdivision\n(g) of section one thousand twelve of the family court act, or another\nparent of the child, unless the convicted parent was a victim of\nphysical, sexual or psychological abuse by the decedent parent and such\nabuse was a factor in causing the attempted homicide; (B) the parent of\nsuch child has been convicted of criminal solicitation as defined in\narticle one hundred, conspiracy as defined in article one hundred five\nor criminal facilitation as defined in article one hundred fifteen of\nthe penal law for conspiring, soliciting or facilitating any of the\nforegoing crimes, and the victim or intended victim was the child or\nanother child of the parent or another child for whose care such parent\nis or has been legally responsible; (C) the parent of such child has\nbeen convicted of assault in the second degree as defined in section\n120.05, assault in the first degree as defined in section 120.10 or\naggravated assault upon a person less than eleven years old as defined\nin section 120.12 of the penal law, and the victim of any such crime was\nthe child or another child of the parent or another child for whose care\nsuch parent is or has been legally responsible; or has been convicted of\nan attempt to commit any of the foregoing crimes, and the victim or\nintended victim was the child or another child of the parent or another\nchild for whose care such parent is or has been legally responsible; or\n(D) the parent of such child has been convicted under the law in any\nother jurisdiction of an offense which includes all of the essential\nelements of any crime specified in clause (A), (B) or (C) of this\nsubparagraph; and\n (iv) the agency has made diligent efforts to encourage and strengthen\nthe parental relationship, including efforts to rehabilitate the\nrespondent, when such efforts will not be detrimental to the best\ninterests of the child, and such efforts have been unsuccessful and are\nunlikely to be successful in the foreseeable future. Where a court has\npreviously determined in accordance with this chapter or the family\ncourt act that reasonable efforts to make it possible for the child to\nreturn safely to his or her home are not required, the agency shall not\nbe required to demonstrate diligent efforts as set forth in this\nsection.\n (b) For the purposes of this section a child is "repeatedly abused" by\nhis or her parent if:\n (i) the child has been found to be an abused child, (A) as defined in\nparagraph (i) of subdivision (e) of section ten hundred twelve of the\nfamily court act, as a result of such parent's acts; or (B) as defined\nin paragraph (iii) of subdivision (e) of section ten hundred twelve of\nthe family court act, as a result of such parent's acts; provided,\nhowever, the respondent must have committed or knowingly allowed to be\ncommitted a felony sex offense as defined in sections 130.25, 130.30,\n130.35, former sections 130.40, 130.45, 130.50, sections 130.65, 130.67,\n130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law; and\n (ii) (A) the child or another child for whose care such parent is or\nhas been legally responsible has been previously found, within the five\nyears immediately preceding the initiation of the proceeding in which\nsuch abuse is found, to be an abused child, as defined in paragraph (i)\nor (iii) of subdivision (e) of section ten hundred twelve of the family\ncourt act, as a result of such parent's acts; provided, however, in the\ncase of a finding of abuse as defined in paragraph (iii) of subdivision\n(e) of section ten hundred twelve of the family court act the respondent\nmust have committed or knowingly allowed to be committed a felony sex\noffense as defined in sections 130.25, 130.30, 130.35, former sections\n130.40, 130.45, 130.50, sections 130.65, 130.67, 130.70, 130.75 and\n130.80 of the penal law, or (B) the parent has been convicted of a crime\nunder section 130.25, 130.30, 130.35, former sections 130.40, 130.45,\n130.50, sections 130.65, 130.67, 130.70, 130.75 or 130.80 of the penal\nlaw against the child, a sibling of the child or another child for whose\ncare such parent is or has been legally responsible, within the five\nyear period immediately preceding the initiation of the proceeding in\nwhich abuse is found; and\n (iii) the agency has made diligent efforts, to encourage and\nstrengthen the parental relationship, including efforts to rehabilitate\nthe respondent, when such efforts will not be detrimental to the best\ninterests of the child, and such efforts have been unsuccessful and are\nunlikely to be successful in the foreseeable future. Where a court has\npreviously determined in accordance with this chapter or the family\ncourt act that reasonable efforts to make it possible for the child to\nreturn safely to his or her home are not required, the agency shall not\nbe required to demonstrate diligent efforts as set forth in this\nsection.\n (c) Notwithstanding any other provision of law, the requirements of\nparagraph (g) of subdivision three of this section shall be satisfied if\none of the findings of abuse pursuant to subparagraph (i) or (ii) of\nparagraph (b) of this subdivision is found to be based on clear and\nconvincing evidence.\n (d) A determination by the court in accordance with article ten of the\nfamily court act based upon clear and convincing evidence that the child\nwas a severely abused child as defined in subparagraphs (i) and (ii) of\nparagraph (a) of this subdivision shall establish that the child was a\nseverely abused child in accordance with this section. Such a\ndetermination by the court in accordance with article ten of the family\ncourt act based upon a fair preponderance of evidence shall be\nadmissible in any proceeding commenced in accordance with this section.\n (e) A determination by the court in accordance with article ten of the\nfamily court act based upon clear and convincing evidence that a child\nwas abused (A) as defined in paragraph (i) of subdivision (e) of section\nten hundred twelve of the family court act, as a result of such parent's\nacts; or (B) as defined in paragraph (iii) of subdivision (e) of section\nten hundred twelve of the family court act, as a result of such parent's\nacts; provided, however, the respondent must have committed or knowingly\nallowed to be committed a felony sex offense as defined in sections\n130.25, 130.30, 130.35, former sections 130.40, 130.45, 130.50, sections\n130.65, 130.67, 130.70, 130.75 and 130.80 of the penal law shall\nestablish that the child was an abused child for the purpose of a\ndetermination as required by subparagraph (i) or (ii) of paragraph (b)\nof this subdivision. Such a determination by the court in accordance\nwith article ten of the family court act based upon a fair preponderance\nof evidence shall be admissible in any proceeding commenced in\naccordance with this section.\n (f) Upon a finding pursuant to paragraph (a) or (b) of this\nsubdivision that the child has been severely or repeatedly abused by his\nor her parent, the court shall enter an order of disposition either (i)\ncommitting the guardianship and custody of the child, pursuant to this\nsection, or (ii) suspending judgment in accordance with section six\nhundred thirty-three of the family court act, upon a further finding,\nbased on clear and convincing, competent, material and relevant evidence\nintroduced in a dispositional hearing, that the best interests of the\nchild require such commitment or suspension of judgment. Where the\ndisposition ordered is the commitment of guardianship and custody\npursuant to this section, an initial freed child permanency hearing\nshall be completed pursuant to section one thousand eighty-nine of the\nfamily court act.\n 9. Nothing in this section shall be construed to terminate, upon\ncommitment of the guardianship and custody of a child to an authorized\nagency or foster parent, any rights and benefits, including but not\nlimited to rights relating to contact with siblings, inheritance,\nsuccession, social security, insurance and wrongful death action claims,\npossessed by or available to the child pursuant to any other provision\nof law. For purposes of this section, "siblings" shall include\nhalf-siblings and those who would be deemed siblings or half-siblings\nbut for the termination of parental rights or death of a parent.\nNotwithstanding any other provision of law, a child committed to the\ncustody and guardianship of an authorized agency pursuant to this\nsection shall be deemed to continue in foster care until such time as an\nadoption or another planned permanent living arrangement is finalized.\nWhere the disposition ordered is the commitment of guardianship and\ncustody pursuant to this section, an initial freed child permanency\nhearing shall be held pursuant to section one thousand eighty-nine of\nthe family court act.\n 10. Upon the court's order transferring custody and guardianship to\nthe commissioner, the attorney for the petitioning authorized agency\nshall promptly serve upon the persons who have been approved by such\nagency as the child's adoptive parents, notice of entry of such order\nand advise such persons that an adoption proceeding may be commenced. In\naccordance with the regulations of the department, the authorized agency\nshall advise such persons of the procedures necessary for adoption of\nthe child. The authorized agency shall cooperate with such persons in\nthe provision of necessary documentation.\n 11. Upon the entry of an order committing the guardianship and custody\nof a child pursuant to this section, the court shall inquire whether any\nfoster parent or parents with whom the child resides, or any relative of\nthe child, or other person, seeks to adopt such child. If such person or\npersons do seek to adopt such child, such person or persons may submit,\nand the court shall accept, all such petitions for the adoption of the\nchild, together with an adoption home study, if any, completed by an\nauthorized agency or disinterested person as such term is defined in\nsubdivision three of section one hundred sixteen of the domestic\nrelations law. The court shall thereafter establish a schedule for\ncompletion of other inquiries and investigations necessary to complete\nreview of the adoption of the child and shall immediately set a schedule\nfor completion of the adoption.\n 13. A petition to modify a disposition of commitment of guardianship\nand custody in order to restore parental rights may be brought in\naccordance with part one-A of article six of the family court act where\nthe conditions enumerated in section six hundred thirty-five of such\npart have been met.\n