NY Soc Serv L § 384-A (2021)
2021 New York Laws SOS - Social Services Article 6 - Children Title 1 - Care and Protection of Children 384-A - Transfer of Care and Custody of Children.

§ 384-a. Transfer of care and custody of children. 1. Method. The care and  custody  of a child may be transferred by a parent or guardian, and the care of a child may be transferred by any person to  whom  a  parent has  entrusted  the  care  of  the  child,  to an authorized agency by a written instrument in accordance with the provisions  of  this  section. Such  transfer  by  a  person  who is not the child's parent or guardian shall not affect the rights or obligations of the parents  or  guardian, and  such transfer shall be deemed a transfer of the care and custody of the child for the purposes of section  three  hundred  fifty-eight-a  of this chapter.   1-a. Prior to accepting a transfer of care and custody, a local social services  official  shall commence a search to locate any non-respondent parent of the child and shall conduct an immediate investigation to  (a) locate   relatives   of   the   child,  including  all  of  the  child's grandparents, all  suitable  relatives  identified  by  either  and  any relative  identified  by  a child over the age of five as a relative who plays or has played a significant positive role in his or her life,  and to  inform  them  of  the opportunity for becoming foster parents or for seeking custody or care of the child, and that the child may be  adopted by foster parents if attempts at reunification with the birth parent are not required or are unsuccessful; and to determine whether the child may appropriately  be placed with a suitable person related to the child and whether such relative seeks approval as a foster parent pursuant to this chapter for the purposes of providing care for such child, or wishes  to provide  care and custody for the child until the parent or other person responsible for the care of the child is able to resume custody; and (b) identify minor siblings or half-siblings of the child and  to  determine whether   such   siblings  or  half-siblings  have  been  or  are  being transferred to the care and custody  of  such  official.  Such  official shall  provide  or arrange for the provision of care so as to permit the child and his or her  minor  siblings  or  half-siblings  to  be  placed together  unless, in the judgment of such official, such placement would be contrary to the best  interests  of  the  children;  whereupon,  such official shall provide or arrange for regular visitation and other forms of  regular  communication between such children unless, in the judgment of such official, such visitation and communication would be contrary to the best interests of such children. Placement or regular visitation and communication with siblings or half-siblings shall be  presumptively  in the  child's  best  interests  unless  such  placement or visitation and communication would  be  contrary  to  the  child's  health,  safety  or welfare,  or  the  lack  of  geographic  proximity precludes or prevents visitation.   1-b. Upon accepting the transfer of care and custody of a  child  from the  parent, guardian or other person to whom care of the child has been entrusted, a local social services official shall obtain information  to the extent known from such person regarding the other parent, any person to whom the parent transferring care and custody had been married at the time  of  the  conception or birth of the child and any other person who would be entitled to notice of a proceeding to terminate parental rights pursuant to section three hundred  eighty-four-c  of  this  title.  Such information  shall  include,  but  not  be  limited to, such parent's or person's name, last-known address, social  security  number,  employer's address  and any other identifying information. Any information provided pursuant to this subdivision shall  be  recorded  in  the  uniform  case record  maintained  pursuant  to  section  four  hundred  nine-f of this article; provided, however, that the failure to provide such information shall not invalidate the transfer of care and custody.    2. Terms. (a) The instrument shall be upon such terms, for  such  time and  subject  to  such  conditions  as may be agreed upon by the parties thereto.   The office of children and  family  services  may  promulgate suggested  terms  and  conditions for inclusion in such instruments, but shall  not require that any particular terms and conditions be included. If the instrument provides that the child  is  to  be  returned  by  the authorized  agency  on  a  date  certain  or  upon  the occurrence of an identifiable event, such agency shall return such  child  at  such  time unless  such action would be contrary to court order entered at any time prior to such date or event or within ten days  thereafter  pursuant  to section  three  hundred eighty-four-b of this title or article six, ten, or ten-A of the family court act or unless and so long as the parent  or guardian  is  unavailable  or  incapacitated  to  receive the child. The parent or guardian may, upon written  notice  to  such  agency,  request return  of  the child at any time prior to the identified date or event, whereupon such agency may, without court order,  return  the  child  or, within  ten  days  after such request, may notify the parent or guardian that such request is denied. If such agency denies or fails to act  upon such  request,  the  parent  or guardian may seek return of the care and custody of the child by motion in family court for return of such  child and  order  to  show  cause,  or by writ of habeas corpus in the supreme court or family court.  If the instrument fails to  specify  a  date  or identifiable  event upon which such agency shall return such child, such agency shall return the child within twenty days after  having  received notice  that  the  parent  or guardian wishes the child returned, unless such action would be contrary to court order entered at any  time  prior to  the  expiration  of such twenty day period pursuant to section three hundred eighty-four-b of this title or article six, ten, or ten-A of the family court act.  Expenditures by a local social services district  for the  care  and maintenance of a child who has been continued in the care of  an  authorized  agency  in  violation  of  the  provisions  of  this subdivision shall not be subject to state reimbursement.  (b) No provisions set forth in any such instrument regarding the right of  the  parent  or  guardian  to  visit  the  child or to have services provided to the child and to the parent or guardian  to  strengthen  the parental  relationship  may  be  terminated or limited by the authorized agency having the  care  and  custody  of  the  child  unless:  (i)  the instrument  shall have been amended to so limit or terminate such right, pursuant to subdivision three of this section;  or  (ii)  the  right  of visitation or to such services would be contrary to or inconsistent with a court order obtained in any proceeding in which the parent or guardian was a party.  (c)  The instrument shall state, in lay terms, in conspicuous print of at least eighteen point type:  (i) that the parent or guardian has the right, prior  to  signing  the instrument  transferring  the  care  and  custody  of  the  child  to an authorized agency, to legal representation of the parent's own choosing. The agency shall provide the parent or guardian with a list of attorneys or legal services  organizations,  if  any,  which  provide  free  legal services to persons unable to otherwise obtain such services;  (ii)  that  the parent or guardian has no legal obligation to transfer the care and custody of the child to such official, and  will  incur  no legal sanction for failing to do so;  (iii) that the law permits the instrument to specify a date certain or an  identifiable event upon which the child is to be returned, and if no date or event is specified, that the parent or guardian has a  right  to the  return  of  the  child  within twenty days of a request for return, unless otherwise ordered by the court; and to otherwise have  the  child  returned  in  accordance  with  the  terms  of  the  instrument  and the provisions of this section;  (iv)  that  the parent or guardian has a right to supportive services, which shall include preventive and other supportive services  authorized to  be  provided  pursuant to the state's consolidated services plan, to visit the child, and to determine jointly with the agency the terms  and frequency of visitation;  (v)  that  the  parent  or  guardian,  subject  to  the  terms  of the instrument, has an obligation  (A) to visit the child,  (B) to plan for the future of the child,  (C) to meet with and consult with the agency about such plan,  (D) to contribute to the support of the child to the extent of his  or her financial ability to do so, and  (E) to inform the agency of any change of name and address;  (vi)  that  the  failure  of  the  parent  or  guardian  to  meet  the obligations listed in subparagraph (v) could be the basis  for  a  court proceeding  for  the  commitment  of the guardianship and custody of the child to an authorized agency thereby terminating parental rights;  (vii) that the parent or guardian  has  a  right  to  a  fair  hearing pursuant  to  section twenty-two of this chapter concerning the agency's failure to permit the parent or  guardian  to  visit  the  child  or  to provide  supportive  services,  which shall include preventive and other supportive services authorized to be provided pursuant  to  the  state's consolidated services plan, to the child and to the parent or guardian;  (viii)  the  amount  of  money  which  the  parent  will  periodically contribute to the support  of  the  child  and  the  schedule  for  such payments, if known.  (ix)  that if the child remains in foster care for fifteen of the most recent twenty-two months, the agency may be required by law  to  file  a petition to terminate parental rights.  (d) In any case where a parent who has transferred care and custody of a  child  to a social services official pursuant to this section informs the social services  official  that  an  order  or  judgment  conferring visitation  rights  relating to the child has been entered by the family court or supreme court or that  a  written  agreement  as  described  in section two hundred thirty-six of the domestic relations law between the parents  confers  such  rights, any instrument executed pursuant to this section shall incorporate the provisions  of  such  order,  judgment  or agreement  to  the  extent that visitation rights are affected and shall provide for visitation or  other  rights  as  required  by  such  order, judgment  or  agreement.  Such incorporation shall not preclude a social services official from exercising his authority  pursuant  to  paragraph (e) or (f) of this subdivision.  (e)  Where  a  social  services  official  opposes incorporation of an order,  judgment  or  agreement  described  in  paragraph  (d)  of  this subdivision,  such  official  may,  upon  execution  of  the  instrument described in this section and upon notice to the non-custodial parent or grandparent named in such order, judgment or agreement, be heard thereon in a proceeding pursuant to section three hundred fifty-eight-a of  this chapter.  (f)  Nothing  in  this  section  shall  be deemed to prohibit a social services official or an attorney for the child, if any, from  making  an application  to  modify  the  terms  of a visitation order, incorporated pursuant to this section, for good  cause  shown,  upon  notice  to  all interested  parties,  or to limit the right of a non-custodial parent or grandparent to seek visitation pursuant to applicable provisions of law.  (g) In the event  a  child  whose  care  and  custody  is  transferred pursuant  to this section is admitted to a hospital operated or licensed by the office of mental health and cannot be returned  to  the  physical custody  of his or her parent or guardian upon request because, pursuant to  section  four  hundred  of this chapter, the medical director of the facility has not authorized the removal of the child,  the  child  shall nonetheless  be  deemed  to  have  been  returned  to the legal care and custody of his or her parent  or  guardian.  Expenditures  by  a  social services  district for the care and maintenance of such a child shall be subject to state reimbursement notwithstanding the provisions of section one hundred fifty-three-b of this chapter.  (h) (i) Where a local social services official determines that a child is at significant risk of placement in the care and custody of the local commissioner of social services during the eighteen  months  immediately following  review by such official because the custodial parent or legal guardian of such child is suffering  from  a  progressively  chronic  or irreversibly  fatal illness and it is determined that there is neither a relative nor a close friend identified by the custodial  parent  or  the legal  guardian  able  to  assume  legal  guardianship of the child, the custodial parent or legal guardian shall be assisted by the local social services district in transferring the care and custody of the  child  to an  authorized  agency  by  a  written instrument in accordance with the provisions for this section which provides the transfer shall  not  take effect  until  the parent or legal guardian dies, becomes debilitated or incapacitated as defined in subdivision one of section seventeen hundred twenty-six of the surrogate's court procedure act.  (ii) Where a local social services official determines that a child is at significant risk of placement in the care and custody  of  the  local commissioner  of  social services during the eighteen months immediately following a review of such official  because  the  custodial  parent  or legal guardian is suffering from a progressively chronic or irreversibly fatal  illness and there is a relative or close friend identified by the custodial parent or legal guardian who is able  and  willing  to  assume care and custody of the child, but who requires foster care services and financial   support   thereof   pursuant   to   section   three  hundred ninety-eight-a of this article, the custodial parent or  legal  guardian shall  be assisted by the local social services district in transferring the care and custody of the child to an authorized agency by  a  written instrument  in  accordance  with  the  provisions  of this section. Such instrument shall provide that the transfer of  custody  shall  not  take effect  until  the parent or legal guardian dies, becomes debilitated or incapacitated as defined in subdivision one of section seventeen hundred twenty-six  of  the  surrogate's  court  procedure  act.  If   otherwise qualified,   the  social  services  official  shall  assist  the  person identified to accept care and custody of the child to  become  certified as a foster parent.  (iii)  A  local  social  services  official who accepts or proposes to accept the care and custody of a child by means of a written  instrument executed  pursuant  to  this paragraph, shall, pursuant to section three hundred fifty-eight-a of this chapter, petition the family court of  the county  or  city  in which the local social services official has his or her office to approve such  written  instrument.  A  written  instrument executed  pursuant  to  this  paragraph and approved pursuant to section three hundred fifty-eight-a of this chapter shall be in effect until the court reviews the child's placement pursuant to  article  ten-A  of  the family  court  act.  The status of a child subject to such an instrument shall be reviewed by the court pursuant to article ten-A of  the  family court act.  (iv)  Upon  receiving  a notice from the custodial parent or the legal guardian that the parent or legal guardian is no longer  debilitated  or incapacitated  and  that  the  parent  or  legal  guardian  requests the immediate return of the child, the social services district shall return such  child to the parent or legal guardian within ten days of receiving notice, except where a contrary court order has been issued pursuant  to part two, five or seven of article ten of the family court act.   3.  Amendment.  (a)  The parties to the instrument or anyone acting on their behalf with their consent may amend it by mutual consent but  only by a supplemental instrument executed in the same manner as the original instrument. The supplemental instrument shall be attached to, and become part  of,  the  original  instrument.  The supplemental instrument shall contain the recitation required in paragraph (c) of subdivision  two  of this section.  (b)  The  instrument shall also be deemed amended where ordered by the family court pursuant to the provisions of paragraph (d) of  subdivision ten of section three hundred fifty-eight-a of this chapter.   4.  Execution. The instrument shall be executed in the presence of one or more witnesses and shall  include  only  the  provisions,  terms  and conditions agreed upon by the parties thereto.   5. Records. The instrument shall be kept in a file maintained for that purpose  by  the  agency  accepting the care and custody of the child. A copy of the instrument shall be given to the parent or guardian  at  the time of the execution of the instrument.   6.  An  instrument executed pursuant to the provisions of this section shall not constitute a remand or commitment pursuant to this chapter.