N.Y. FCT Law § 355.5 — New York Code / Act FCT / Article 3 / Part 5 / Section 355.5
Permanency hearing
Status: in_force

§ 355.5. Permanency hearing. * 1. For the purposes of this section the\nterm "non-secure facility" means a facility operated by an authorized\nagency in accordance with an operating certificate issued pursuant to\nthe social services law or a facility, not including a secure or limited\nsecure facility, with a capacity of twenty-five beds or less operated by\nthe office of children and family services in accordance with section\nfive hundred four of the executive law. The term shall not include a\nlimited secure facility within a social services district operating an\napproved juvenile justice services close to home initiative pursuant to\nsection four hundred four of the social services law.\n  * NB Effective until March 31, 2028\n  * 1. For the purposes of this section the term "non-secure facility"\nmeans a facility operated by an authorized agency in accordance with an\noperating certificate issued pursuant to the social services law or a\nfacility, not including a secure or limited secure facility, with a\ncapacity of twenty-five beds or less operated by the office of children\nand family services in accordance with section five hundred four of the\nexecutive law.\n  * NB Effective March 31, 2028\n  2. Where a respondent is placed with a commissioner of social services\nor the office of children and family services pursuant to section 353.3\nof this article for a period of twelve or fewer months and resides in a\nfoster home or non-secure facility;\n  (a) The initial permanency hearing shall be held no later than twelve\nmonths after the respondent who was placed with a commissioner of social\nservices or the office of children and family services entered foster\ncare and such permanency hearing shall be held in conjunction with an\nextension of placement hearing held pursuant to section 355.3 of this\narticle.\n  (b) Subsequent permanency hearings shall be held no later than every\ntwelve months following the respondent's initial permanency hearing and\nshall be held in conjunction with an extension of placement hearing held\npursuant to section 355.3 of this article.\n  3. Where a respondent is placed with a commissioner of social services\nor the office of children and family services pursuant to section 353.3\nof this article for a period in excess of twelve months and resides in a\nfoster home or in a non-secure facility;\n  (a) the initial permanency hearing shall be held no later than twelve\nmonths after the respondent who was placed with a commissioner of social\nservices or the office of children and family services entered foster\ncare.\n  (b) subsequent permanency hearings shall be held no later than every\ntwelve months following the respondent's initial twelve months in\nplacement but in no event past the respondent's twenty-first birthday;\nprovided, however, that they shall be held in conjunction with an\nextension of placement hearing held pursuant to section 355.3 of this\npart.\n  4. For the purposes of this section, the respondent shall be\nconsidered to have entered foster care sixty days after the respondent\nwas removed from his or her home pursuant to this article.\n  5. A petition for an initial or subsequent permanency hearing shall be\nfiled by the office of children and family services or by the\ncommissioner of social services with whom the respondent was placed.\nSuch petition shall be filed no later than sixty days prior to the end\nof the month in which an initial or subsequent permanency hearing must\nbe held, as directed in subdivision two of this section.\n  6. The foster parent caring for the respondent or any pre-adoptive\nparent or relative providing care for the respondent shall be provided\nwith notice of any permanency hearing held pursuant to this section by\nthe office of children and family services or the commissioner of social\nservices with whom the respondent was placed. Such foster parent,\npre-adoptive parent and relative shall have the right to be heard at any\nsuch hearing; provided, however, no such foster parent, pre-adoptive\nparent or relative shall be construed to be a party to the hearing\nsolely on the basis of such notice and right to be heard. The failure of\nthe foster parent, pre-adoptive parent, or relative caring for the child\nto appear at a permanency hearing shall constitute a waiver of the right\nto be heard and such failure to appear shall not cause a delay of the\npermanency hearing nor shall such failure to appear be a ground for the\ninvalidation of any order issued by the court pursuant to this section.\n  7. At the permanency hearing, the court must consider and determine in\nits order:\n  (a) where appropriate, that reasonable efforts were made to make it\npossible for the respondent to return safely to his or her home, or if\nthe permanency plan for the respondent is adoption, guardianship or\nanother permanent living arrangement other than reunification with the\nparent or parents of the respondent, that reasonable efforts were made\nto make and finalize such alternate permanent placement including\nconsideration of appropriate in-state and out-of-state placements;\n  (b) in the case of a respondent who has attained the age of fourteen,\n(i) the services needed, if any, to assist the respondent to make the\ntransition from foster care to successful adulthood; and (ii)(A) that\nthe permanency plan developed for the respondent, and any revision or\naddition to the plan, shall be developed in consultation with the\nrespondent and, at the option of the respondent, with up to two members\nof the respondent's permanency planning team who are selected by the\nrespondent and who are not a foster parent of, or case worker, case\nplanner or case manager for, the child, except that the local\ncommissioner of social services with custody of the respondent or the\ncommissioner of the office of children and family services if such\noffice has custody of the respondent may reject an individual selected\nby the respondent if such commissioner has good cause to believe that\nthe individual would not act in the best interests of the respondent,\nand (B) that one individual so selected by the respondent may be\ndesignated to be the respondent's advisor and, as necessary, advocate,\nwith respect to the application of the reasonable and prudent parent\nstandard;\n  (c) in the case of a respondent placed outside of this state, whether\nthe out-of-state placement continues to be appropriate and in the best\ninterests of the respondent;\n  (d) with regard to the completion of placement ordered by the court\npursuant to section 353.3 or 355.3 of this part: whether and when the\nrespondent: (i) will be returned to the parent; (ii) should be placed\nfor adoption with the local commissioner of social services filing a\npetition for termination of parental rights; (iii) should be referred\nfor legal guardianship; (iv) should be placed permanently with a fit and\nwilling relative; or (v) should be placed in another planned permanent\nliving arrangement with a significant connection to an adult willing to\nbe a permanency resource for the respondent if the respondent is age\nsixteen or older and (A) the office of children and family services or\nthe local commissioner of social services has documented to the court:\n(1) the intensive, ongoing, and, as of the date of the hearing,\nunsuccessful efforts made to return the respondent home or secure a\nplacement for the respondent with a fit and willing relative including\nadult siblings, a legal guardian, or an adoptive parent, including\nthrough efforts that utilize search technology including social media to\nfind biological family members for children, (2) the steps being taken\nto ensure that (I) the respondent's foster family home or child care\nfacility is following the reasonable and prudent parent standard in\naccordance with guidance provided by the United States department of\nhealth and human services, and (II) the respondent has regular, ongoing\nopportunities to engage in age or developmentally appropriate activities\nincluding by consulting with the respondent in an age-appropriate manner\nabout the opportunities of the respondent to participate in activities;\nand (B) the office of children and family services or the local\ncommissioner of social services has documented to the court and the\ncourt has determined that there are compelling reasons for determining\nthat it continues to not be in the best interest of the respondent to\nreturn home, be referred for termination of parental rights and placed\nfor adoption, placed with a fit and willing relative, or placed with a\nlegal guardian; and (C) the court has made a determination explaining\nwhy, as of the date of this hearing, another planned living arrangement\nwith a significant connection to an adult willing to be a permanency\nresource for the respondent is the best permanency plan for the\nrespondent; and\n  (e) with regard to the completion or extension of placement ordered by\nthe court pursuant to section 353.3 or 355.3 of this article, the steps\nthat must be taken by the agency with which the respondent is placed to\nimplement the plan for release or conditional release submitted pursuant\nto paragraph (c) of subdivision seven of section 353.3 of this article,\nincluding consideration of appropriate in-state and out-of-state\nplacements, the adequacy of such plan and any modifications that should\nbe made to such plan.\n  8. At the permanency hearing, the court shall consult with the\nrespondent in an age-appropriate manner regarding the permanency plan\nfor the respondent; provided, however, that if the respondent is age\nsixteen or older and the requested permanency plan for the respondent is\nplacement in another planned permanent living arrangement with a\nsignificant connection to an adult willing to be a permanency resource\nfor the respondent, the court must ask the respondent about the desired\npermanency outcome for the respondent.\n  9. The court shall not reduce or terminate the placement of the\nrespondent prior to the completion of the period of placement ordered by\nthe court pursuant to section 353.3 or 355.3 of this article.\n  10. Where the respondent remains placed in a qualified residential\ntreatment program, as defined in section four hundred nine-h of the\nsocial services law, the commissioner of the local social services\ndistrict or the office of children and family services with legal\ncustody of the respondent shall submit evidence at the permanency\nhearing with respect to the respondent:\n  (a) demonstrating that ongoing assessment of the strengths and needs\nof the respondent cannot be met through placement in a foster family\nhome, that the placement in a qualified residential treatment program\nprovides the most effective and appropriate level of care for the\nrespondent in the least restrictive environment, and that the placement\nis consistent with the short-term and long-term goals for the\nrespondent, as specified in the respondent's permanency plan;\n  (b) documenting the specific treatment and service needs that will be\nmet for the respondent in the placement and the length of time the\nrespondent is expected to need the treatment or services; and\n  (c) documenting the efforts made by the local social services district\nor the office of children and family services with legal custody of the\nrespondent to prepare the respondent to return home, or to be placed\nwith a fit and willing relative, legal guardian or adoptive parent, or\nin a foster family home.\n  11. Where placement will end prior to a subsequent permanency hearing\ndue to the respondent's age and/or failure to consent to continuation of\nplacement, court orders made pursuant to this section shall be\nenforceable against the agency with whom such respondent was placed\nafter such respondent was discharged from care.\n  (a) The court shall maintain jurisdiction over a case for purposes of\nhearing a motion for contempt against the agency with whom the\nrespondent was placed pursuant to section seven hundred fifty-three of\nthe judiciary law. Such a motion may be brought by a respondent who was\nformerly placed with a commissioner of social services or the office of\nchildren and family services pursuant to section 353.3 of this part and\nresided in a foster home or non-secure facility. In addition to any\nother defense, it shall be an affirmative defense to a motion filed in\naccordance with this paragraph that compliance with the court order was\nnot possible due solely to the youth's refusal to consent to\ncontinuation of foster care placement where such refusal is documented\nin a signed, notarized letter executed by the youth after consultation\nwith their attorney for the child.\n  (b) The court shall maintain jurisdiction over a motion described in\nparagraph (a) of this subdivision if such motion is filed before the\nrespondent attains the age of twenty-three. The court's jurisdiction\nover any such motion shall continue until such motion and any related\nappeals are finally resolved.\n  (c) If the respondent is eligible to return to foster care pursuant to\nthe provisions of article ten-B of this act, upon the consent of the\nrespondent, the court may convert a motion brought under this\nsubdivision to a motion to return the respondent to foster care.\n