NY Soc Serv L § 384-B (2021)
2021 New York Laws SOS - Social Services Article 6 - Children Title 1 - Care and Protection of Children 384-B - Guardianship and Custody of Destitute or Dependent Children; Commitment by Court Order; Modification of Commitment and Restoration of Parental Rights.

§  384-b. Guardianship and custody of destitute or dependent children; commitment by court order; modification of commitment and restoration of parental rights.   1. Statement of legislative findings and intent.  (a) The legislature recognizes that the health and safety of  children is  of  paramount  importance.  To  the extent it is consistent with the health and safety of the child, the  legislature  further  hereby  finds that:  (i)  it is desirable for children to grow up with a normal family life in  a  permanent  home  and  that  such  circumstance  offers  the  best opportunity for children to develop and thrive;  (ii)  it  is  generally  desirable  for the child to remain with or be returned to the birth parent because  the  child's  need  for  a  normal family  life  will  usually best be met in the home of its birth parent, and that parents are entitled to bring up their own children unless  the best interests of the child would be thereby endangered;  (iii) the state's first obligation is to help the family with services to  prevent  its break-up or to reunite it if the child has already left home; and  (iv) when it is clear that the birth parent cannot or will not provide a normal family home for the child and when continued foster care is not an appropriate plan for the child, then  a  permanent  alternative  home should be sought for the child.  (b)  The  legislature  further  finds that many children who have been placed in foster care experience unnecessarily protracted stays in  such care  without  being  adopted  or  returned  to  their  parents or other custodians.  Such  unnecessary  stays  may  deprive  these  children  of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens. The legislature further  finds that provision of a timely procedure for the termination, in appropriate cases, of the rights of the birth  parents  could  reduce such unnecessary stays.   It  is  the  intent  of  the  legislature  in enacting this section to provide procedures not only assuring that the rights of the birth parent are  protected,  but  also,  where  positive,   nurturing   parent-child relationships no longer exist, furthering the best interests, needs, and rights of the child by terminating parental rights and freeing the child for adoption.   2.  For  the purposes of this section, (a) "child" shall mean a person under the age of eighteen years; and,  (b)  "parent"  shall  include  an incarcerated parent unless otherwise qualified.   3.  (a)  The guardianship of the person and the custody of a destitute or dependent child may be committed to an authorized  agency,  or  to  a foster parent authorized pursuant to section one thousand eighty-nine of the family court act to institute a proceeding under this section, or to a  relative  with care and custody of the child, by order of a surrogate or judge of the  family  court,  as  hereinafter  provided.  Where  such guardianship  and  custody  is  committed  to  a  foster  parent or to a relative with care and  custody  of  the  child,  the  family  court  or surrogate's  court shall retain continuing jurisdiction over the parties and the child and may, upon its own motion or the motion of  any  party, revoke,  modify  or  extend  its order, if the foster parent or relative fails to institute a proceeding for the adoption of the child within six months after the entry of the  order  committing  the  guardianship  and custody of the child to such foster parent or relative. Where the foster parent or relative institutes a proceeding for the adoption of the child and  the  adoption  petition  is  finally denied or dismissed, the court which committed the guardianship and custody of the child to the  foster  parent or relative shall revoke the order of commitment. Where the court revokes an order committing the guardianship and custody of a child to a foster  parent or relative, it shall commit the guardianship and custody of the child to an authorized agency.  (b) A proceeding under this section may be originated by an authorized agency or by a foster parent authorized to do so pursuant to section one thousand  eighty-nine of the family court act or by a relative with care and custody of the child or, if an  authorized  agency  ordered  by  the court to originate a proceeding under this section fails to do so within the  time  fixed  by  the  court, by the child's attorney or guardian ad litem on the court's direction.  (c) Where a child was placed or continued in foster care  pursuant  to article  ten,  ten-A  or  ten-C of the family court act or section three hundred fifty-eight-a of this chapter, a proceeding under  this  section shall  be  originated  in  the  family  court in the county in which the proceeding pursuant to article ten, ten-A or ten-C of the  family  court act  or  section  three  hundred  fifty-eight-a of this chapter was last heard and shall be assigned, wherever practicable, to the judge who last heard such proceeding. Where multiple proceedings  are  commenced  under this   section   concerning   a  child  and  one  or  more  siblings  or half-siblings of such child, placed or continued in foster care with the same commissioner pursuant  to  section  one  thousand  fifty-five,  one thousand  eighty-nine  or  one  thousand ninety-five of the family court act, all of such proceedings may be  commenced  jointly  in  the  family court  in  any  county  which last heard a proceeding under article ten, ten-A or ten-C of the family court act regarding any of the children who are the  subjects  of  the  proceedings  under  this  section.  In  such instances,  the  case  shall  be  assigned, wherever practicable, to the judge who last presided over such  proceeding.  In  any  other  case,  a proceeding  under  this  section,  including a proceeding brought in the surrogate's court, shall be originated in the county where either of the parents of the child reside at the time of the filing of  the  petition, if known, or, if such residence is not known, in the county in which the authorized  agency  has an office for the regular conduct of business or in which the child  resides  at  the  time  of  the  initiation  of  the proceeding.  To the extent possible, the court shall, when appointing an attorney  for  the  child,  appoint  an  attorney  who  has   previously represented the child.  (c-1) Before hearing a petition under this section, the court in which the  termination  of  parental  rights  petition  has  been  filed shall ascertain whether the child is under the jurisdiction of a family  court pursuant  to a placement in a child protective or foster care proceeding or continuation in out-of-home care pursuant  to  a  permanency  hearing and,  if  so,  which  court  exercised jurisdiction over the most recent proceeding. If  the  court  determines  that  the  child  is  under  the jurisdiction  of  a  different  family  court,  the  court  in which the termination of  parental  rights  petition  was  filed  shall  stay  its proceeding  for not more than thirty days and shall communicate with the court that exercised jurisdiction over the most recent  proceeding.  The communication shall be recorded or summarized on the record by the court in  which  the  termination  of parental rights petition was filed. Both courts shall notify the parties and child's attorney, if any,  in  their respective  proceedings  and  shall  give them an opportunity to present facts and legal argument or to participate in the communication prior to the issuance of a decision on jurisdiction.  The  court  that  exercised jurisdiction  over the most recent proceeding shall determine whether it will accept or decline jurisdiction over  the  termination  of  parental rights   petition.   This   determination   of   jurisdiction  shall  be  incorporated into an order regarding jurisdiction that shall  be  issued by  the  court  in which the termination of parental rights petition was filed within thirty days of such filing. If  the  court  that  exercised jurisdiction  over  the most recent proceeding determines that it should exercise jurisdiction over the termination of parental rights  petition, the  order  shall require that the petition shall be transferred to that court forthwith but in no event more than  thirty-five  days  after  the filing  of  the  petition.  The  petition  shall  be  assigned, wherever practicable, to the judge who heard the most recent proceeding.  If  the court  that  exercised  jurisdiction  over  the  most  recent proceeding declines to exercise jurisdiction over the adoption petition, the  court in  which  the  termination  of parental rights petition was filed shall issue an  order  incorporating  that  determination  and  shall  proceed forthwith.  (d)  The family court shall have exclusive, original jurisdiction over any proceeding brought upon grounds specified in paragraph (c),  (d)  or (e)  of  subdivision  four  of  this  section,  and the family court and surrogate's court shall have concurrent, original jurisdiction over  any proceeding  brought  upon  grounds  specified in paragraph (a) or (b) of subdivision four of this section, except as provided in  paragraphs  (c) and (c-1) of this subdivision.  (e)  A  proceeding  under  this section is originated by a petition on notice served upon the child's parent or parents, the attorney  for  the child's  parent  or parents and upon such other persons as the court may in its discretion prescribe. Such notice shall inform  the  parents  and such  other  persons  that the proceeding may result in an order freeing the child for adoption without the consent of or notice to  the  parents or  such  other  persons.  Such notice also shall inform the parents and such other  persons  of  their  right  to  the  assistance  of  counsel, including  any right they may have to have counsel assigned by the court in any case where they are financially unable  to  obtain  counsel.  The petition  shall  set  forth  the  names  and last known addresses of all persons required to be given notice of the proceeding, pursuant to  this section and section three hundred eighty-four-c of this title, and there shall  be  shown  by  the  petition  or  by  affidavit  or  other  proof satisfactory to the court that there are no persons other than those set forth in the petition  who  are  entitled  to  notice  pursuant  to  the provisions  of this section or of section three hundred eighty-four-c of this title. When the proceeding is initiated in family court service  of the  petition  and  other  process  shall be made in accordance with the provisions of section six hundred seventeen of the family court act, and when the proceeding is initiated in surrogate's court, service shall  be made in accordance with the provisions of section three hundred seven of the surrogate's court procedure act. When the proceeding is initiated on the  grounds  of abandonment of a child less than one year of age at the time of the transfer of the care and custody of such child  to  a  local social  services  official,  the  court  shall  take  judicial notice of efforts to locate the child's parents or other known relatives or  other persons  legally  responsible  pursuant to paragraph (ii) of subdivision (b) of section one thousand fifty-five of the family court act.  (f) In any proceeding under this  section  in  which  the  surrogate's court  has  exercised  jurisdiction,  the  provisions of the surrogate's court procedure act shall apply to the extent that they do not  conflict with  the  specific  provisions of this section. In any proceeding under this section in which the family court has exercised  jurisdiction,  the provisions of articles one, two and eleven of the family court act shall apply  to  the  extent  that  they  do  not  conflict  with the specific provisions of this section. In any proceeding under  this  section,  the  provisions  and  limitations of article thirty-one of the civil practice law and rules shall apply to the extent that they do not  conflict  with the specific provisions of this section. In determining any motion for a protective order, the court shall consider the need of the party for the discovery  to  assist  in  the preparation of the case and any potential harm to the child from the discovery. The court shall set a schedule for discovery to avoid  unnecessary  delay.  Any  proceeding  originated  in family  court  upon the ground specified in paragraph (d) of subdivision four  of  this  section  shall  be  conducted  in  accordance  with  the provisions of part one of article six of the family court act.  (g)  (i)  An  order committing the guardianship and custody of a child pursuant to this section shall be granted only upon a finding  that  one or more of the grounds specified in subdivision four of this section are based upon clear and convincing proof.  (ii) Where a proceeding has been properly commenced under this section by  the  filing of a petition before the eighteenth birthday of a child, an order committing the guardianship and custody of a child pursuant  to this section upon a finding under subdivision four of this section shall be  granted  after  the  eighteenth  birthday of a child where the child consents to such disposition.  (h) In any proceeding brought upon a ground set forth in paragraph (c) of subdivision four, neither the  privilege  attaching  to  confidential communications  between  husband  and  wife,  as  set  forth  in section forty-five hundred two of the civil practice  law  and  rules,  nor  the physician-patient  and  related  privileges,  as  set  forth  in section forty-five hundred four of the civil practice law  and  rules,  nor  the psychologist-client  privilege,  as  set  forth  in  section  forty-five hundred seven of the civil  practice  law  and  rules,  nor  the  social worker-client  privilege,  as  set  forth  in section forty-five hundred eight of the civil practice  law  and  rules,  shall  be  a  ground  for excluding evidence which otherwise would be admissible.  (i) In a proceeding instituted by an authorized agency pursuant to the provisions  of this section, proof of the likelihood that the child will be placed for adoption shall not be required in determining whether  the best  interests  of the child would be promoted by the commitment of the guardianship and custody of the child to an authorized agency.  (j) The order and the papers upon which it was granted in a proceeding under this section shall be filed in the court, and a certified copy  of such  order shall also be filed in the office of the county clerk of the county in which such court is located, there to be recorded  and  to  be inspected  or  examined  in  the  same manner as a surrender instrument, pursuant to the provisions of section three hundred eighty-four of  this chapter.  (k)  Where  the child is over fourteen years of age, the court may, in its discretion, consider the wishes of the child in determining  whether the  best  interests of the child would be promoted by the commitment of the guardianship and custody of the child.  (l) (i) Notwithstanding any other law to the contrary,  whenever:  the child  shall  have  been  in  foster care for fifteen months of the most recent twenty-two months; or  a  court  of  competent  jurisdiction  has determined  the  child  to be an abandoned child; or the parent has been convicted of a crime as set forth in subdivision eight of this  section, the  authorized  agency  having  care of the child shall file a petition pursuant to this section unless based on a case by  case  determination: (A)  the child is being cared for by a relative or relatives; or (B) the agency has documented in the most recent case plan, a copy of which  has been  made  available  to the court, a compelling reason for determining that the filing of a petition would not be in the best interest  of  the  child;  or  (C)  the agency has not provided to the parent or parents of the child such services as it deems necessary for the safe return of the child to the parent or parents, unless such  services  are  not  legally required;  or (D) the parent or parents are incarcerated, in immigration detention or immigration removal  proceedings,  or  participating  in  a residential   substance   abuse   treatment   program,   or   the  prior incarceration, immigration detention or immigration removal proceedings, or participation of a parent or parents in a residential substance abuse treatment program is a significant factor in why the child has  been  in foster care for fifteen of the last twenty-two months, provided that the parent  maintains  a  meaningful  role  in the child's life based on the criteria set forth in subparagraph (v) of this paragraph and the  agency has  not  documented  a  reason why it would otherwise be appropriate to file a petition pursuant to this section.  (ii) For the purposes of this section, a compelling reason  whereby  a social  services  official  is  not  required  to  file  a  petition for termination of parental rights in accordance with  subparagraph  (i)  of this paragraph includes, but is not limited to, where:  (A) the child was placed into foster care pursuant to article three or seven  of  the  family  court act and a review of the specific facts and circumstances of the child's placement demonstrate that the  appropriate permanency  goal for the child is either (1) return to his or her parent or guardian or (2) discharge to independent living;  (B) the child has a permanency goal other than adoption;  (C) the child is fourteen years of age or older and will  not  consent to his or her adoption;  (D)  there are insufficient grounds for filing a petition to terminate parental rights; or  (E) the child is the subject of a pending  disposition  under  article ten  of  the family court act, except where such child is already in the custody of the  commissioner  of  social  services  as  a  result  of  a proceeding  other  than the pending article ten proceeding, and a review of the  specific  facts  and  circumstances  of  the  child's  placement demonstrate  that  the  appropriate  permanency  goal  for  the child is discharge to his or her parent or guardian.  (iii) For the purposes of this paragraph,  the  date  of  the  child's entry  into  foster  care is the earlier of sixty days after the date on which the child was removed from the home or  the  date  the  child  was found  by a court to be an abused or neglected child pursuant to article ten of the family court act.  (iv) In the event that the  social  services  official  or  authorized agency  having care and custody of the child fails to file a petition to terminate parental rights within sixty days of the time required by this section, or within ninety days of a court direction to file a proceeding not otherwise required by this section, such proceeding may be filed  by the  foster  parent  of  the child without further court order or by the attorney for the child on the direction of the court. In  the  event  of such  filing  the  social  services official or authorized agency having care and custody of the  child  shall  be  served  with  notice  of  the proceeding and shall join the petition.  (v)  For  the  purposes  of  clause  (D)  of  subparagraph (i) of this paragraph, an assessment of whether a parent maintains a meaningful role in his or her child's life shall be based on evidence, which may include the following: a parent's expressions or acts  manifesting  concern  for the  child, such as letters, telephone calls, visits, and other forms of communication with the child; efforts by the parent to  communicate  and work  with the authorized agency, attorney for the child, foster parent, the court, and the parent's  attorney  or  other  individuals  providing  services  to  the  parent,  including  correctional,  mental  health and substance abuse treatment program personnel for the purpose of complying with the  service  plan  and  repairing,  maintaining  or  building  the parent-child  relationship;  a  positive  response  by the parent to the authorized agency's diligent efforts as  defined  in  paragraph  (f)  of subdivision seven of this section; and whether the continued involvement of  the  parent  in the child's life is in the child's best interest. In assessing whether a parent maintains a meaningful role  in  his  or  her child's  life, the authorized agency shall gather input from individuals and agencies in a reasonable position  to  help  make  this  assessment, including  but  not  limited to, the authorized agency, attorney for the child, parent, child, foster parent or other individuals  of  importance in  the  child's  life,  and  parent's  attorney  or  other  individuals providing services to the parent, including correctional, mental  health and  substance  abuse treatment program personnel. The court may make an order directing the authorized agency to undertake further steps to  aid in completing its assessment.   4.  An  order  committing  the  guardianship  and  custody  of a child pursuant to this section shall be granted only upon one or more  of  the following grounds:  (a)  Both parents of the child are dead, and no guardian of the person of such child has been lawfully appointed; or  (b) The parent or parents, whose consent to the adoption of the  child would  otherwise  be  required  in  accordance  with section one hundred eleven of the domestic relations  law,  abandoned  such  child  for  the period of six months immediately prior to the date on which the petition is filed in the court; or  (c)  The parent or parents, whose consent to the adoption of the child would otherwise be required  in  accordance  with  section  one  hundred eleven  of  the  domestic  relations  law,  are  presently  and  for the foreseeable future unable, by reason of mental illness  or  intellectual disability, to provide proper and adequate care for a child who has been in  the  care  of  an  authorized  agency  for  the  period  of one year immediately prior to the date on which the  petition  is  filed  in  the court; or  (d) The child is a permanently neglected child; or  (e)  The parent or parents, whose consent to the adoption of the child would otherwise be required  in  accordance  with  section  one  hundred eleven of the domestic relations law, severely or repeatedly abused such child.  Where  a court has determined that reasonable efforts to reunite the child with his or her parent  are  not  required,  pursuant  to  the family  court  act  or  this  chapter,  a petition to terminate parental rights on the ground of severe abuse as set forth in subparagraph  (iii) of  paragraph  (a)  of  subdivision  eight  of this section may be filed immediately upon such determination.   5. (a) For the purposes of this section, a child is "abandoned" by his parent if such parent evinces an intent to forego his  or  her  parental rights  and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to  do  so and  not  prevented  or  discouraged from doing so by the agency. In the absence  of  evidence  to  the  contrary,  such  ability  to  visit  and communicate shall be presumed.  (b)  The  subjective  intent  of  the  parent,  whether  expressed  or otherwise, unsupported  by  evidence  of  the  foregoing  parental  acts manifesting  such  intent,  shall not preclude a determination that such parent has abandoned his or her child. In making such determination, the court shall not require a showing of diligent efforts,  if  any,  by  an  authorized  agency to encourage the parent to perform the acts specified in paragraph (a) of this subdivision.   6.  (a)  For  the  purposes of this section, "mental illness" means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or  judgment to  such  an extent that if such child were placed in or returned to the custody of the parent, the child  would  be  in  danger  of  becoming  a neglected child as defined in the family court act.  (b)  For the purposes of this section, "intellectual disability" means subaverage  intellectual  functioning  which   originates   during   the developmental  period  and  is  associated  with  impairment in adaptive behavior to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act;  provided,  however, that  case  law  regarding  use of the phrase "mental retardation" under this section shall be applicable to the term "intellectual disability".  (c) The legal sufficiency of the proof in a proceeding upon the ground set forth in paragraph (c) of subdivision four of this section shall not be determined until the judge has taken the testimony of a psychologist, or psychiatrist, in accordance with paragraph (e) of this subdivision.  (d) A determination or order upon a ground set forth in paragraph  (c) of  subdivision  four  shall  in  no  way  affect  any  other  right, or constitute an adjudication of the legal status of the parent.  (e) In every proceeding upon a ground set forth in  paragraph  (c)  of subdivision four the judge shall order the parent to be examined by, and shall  take the testimony of, a qualified psychiatrist or a psychologist licensed pursuant to article one hundred fifty-three  of  the  education law  as  defined  in section 730.10 of the criminal procedure law in the case  of  a  parent  alleged  to  be  mentally  ill  or  retarded,  such psychologist  or  psychiatrist  to be appointed by the court pursuant to section thirty-five of the judiciary law. The parent and the  authorized agency  shall  have the right to submit other psychiatric, psychological or  medical  evidence.  If  the  parent  refuses  to  submit   to   such court-ordered  examination, or if the parent renders himself unavailable therefor whether before or after the initiation of  a  proceeding  under this  section,  by  departing  from  the  state or by concealing himself therein, the appointed psychologist or psychiatrist, upon the  basis  of other  available  information,  including,  but  not limited to, agency, hospital or clinic records, may testify without an examination  of  such parent,  provided that such other information affords a reasonable basis for his opinion.   7.   (a) For the purposes  of  this  section,  "permanently  neglected child" shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of either at least one year  or  fifteen out of the most recent twenty-two months following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for  the future  of the child, although physically and financially able to do so, notwithstanding  the  agency's  diligent  efforts   to   encourage   and strengthen  the  parental  relationship  when  such  efforts will not be detrimental to the best interests of the child. The court shall consider the special circumstances of an incarcerated parent or parents, or of  a parent  or  parents  participating  in  a  residential  substance  abuse treatment program, when determining whether a child  is  a  "permanently neglected  child" as defined in this paragraph. In such cases, the court also shall  consider  the  particular  constraints,  including  but  not limited  to, limitations placed on family contact and the unavailability of social or rehabilitative services to aid  in  the  development  of  a  meaningful  relationship  between  the parent and his or her child, that may impact the parent's ability to  substantially  and  continuously  or repeatedly  maintain  contact  with his or her child and to plan for the future  of  his  or  her  child  as  defined  in  paragraph  (c) of this subdivision. Where a court has previously determined in accordance  with paragraph   (b)   of   subdivision   three   of  section  three  hundred fifty-eight-a of this chapter or  section  one  thousand  thirty-nine-b, subparagraph  (A)  of  paragraph  (i)  of subdivision (b) of section one thousand fifty-two, paragraph (b) of subdivision two  of  section  seven hundred  fifty-four or paragraph (c) of subdivision two of section 352.2 of the family court act that reasonable efforts to make it possible  for the  child  to  return  safely  to his or her home are not required, the agency shall not be required to demonstrate diligent efforts as  defined in  this section. In the event that the parent defaults after due notice of a proceeding to determine such neglect, such physical  and  financial ability of such parent may be presumed by the court.  (b) For the purposes of paragraph (a) of this subdivision, evidence of insubstantial  or  infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of  law  to  preclude  a determination  that such child is a permanently neglected child. A visit or communication by a parent with the child which is of  such  character as   to  overtly  demonstrate  a  lack  of  affectionate  and  concerned parenthood shall not be deemed a substantial contact.  (c) As used in paragraph (a) of this subdivision,  "to  plan  for  the future  of  the child" shall mean to take such steps as may be necessary to provide an adequate, stable home and  parental  care  for  the  child within  a  period  of  time  which  is  reasonable  under  the financial circumstances available to the parent. The plan must  be  realistic  and feasible,  and good faith effort shall not, of itself, be determinative. In determining whether a parent has planned for the future of the child, the court may consider the failure of the  parent  to  utilize  medical, psychiatric,  psychological and other social and rehabilitative services and material resources made available to such parent.  (d) For the purposes of this subdivision:  (i) A parent shall not be deemed unable to maintain  contact  with  or plan for the future of the child by reason of such parent's use of drugs or  alcohol,  except  while  the  parent  is  actually  hospitalized  or institutionalized therefor; and  (ii) The time during  which  a  parent  is  actually  hospitalized  or institutionalized  shall  not  interrupt,  but  shall  not be part of, a period of failure to maintain contact with or plan for the future  of  a child.  (e)   Notwithstanding   the   provisions  of  paragraph  (a)  of  this subdivision, evidence of diligent efforts by an agency to encourage  and strengthen the parental relationship shall not be required when:  (i)  The  parent  has  failed  for  a period of six months to keep the agency apprised of his or her location,  provided  that  the  court  may consider  the  particular  delays  or barriers an incarcerated parent or parents, or a parent or parents participating in a residential substance abuse treatment program, may experience in keeping the  agency  apprised of his or her location; or  (ii) An incarcerated parent has failed on more than one occasion while incarcerated  to  cooperate  with an authorized agency in its efforts to assist such parent to plan for the future of the child, as  such  phrase is  defined  in  paragraph  (c) of this subdivision, or in such agency's efforts to plan and arrange  visits  with  the  child  as  described  in subparagraph five of paragraph (f) of this subdivision.  (f)  As  used  in  this  subdivision,  "diligent  efforts"  shall mean reasonable attempts by an  authorized  agency  to  assist,  develop  and encourage  a  meaningful  relationship  between  the  parent  and child, including but not limited to:  (1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family;  (2)  making  suitable  arrangements for the parents to visit the child except that with respect to an incarcerated parent, arrangements for the incarcerated parent to visit the child outside the correctional facility shall not be  required  unless  reasonably  feasible  and  in  the  best interest of the child;  (3)  provision of services and other assistance to the parents, except incarcerated parents, so that problems preventing the discharge  of  the child from care may be resolved or ameliorated;  (4)  informing  the  parents  at  appropriate intervals of the child's progress, development and health;  (5) making suitable arrangements  with  a  correctional  facility  and other  appropriate persons for an incarcerated parent to visit the child within the correctional facility,  if  such  visiting  is  in  the  best interests   of   the   child.  When  no  visitation  between  child  and incarcerated parent has been arranged for or permitted by the authorized agency because such visitation is determined  not  to  be  in  the  best interest  of  the child, then no permanent neglect proceeding under this subdivision shall be  initiated  on  the  basis  of  the  lack  of  such visitation.  Such  arrangements  shall include, but shall not be limited to, the transportation of the child to the  correctional  facility,  and providing  or suggesting social or rehabilitative services to resolve or correct the problems other than incarceration itself  which  impair  the incarcerated  parent's  ability to maintain contact with the child. When the parent is incarcerated in a correctional  facility  located  outside the  state,  the  provisions  of this subparagraph shall be construed to require that an  authorized  agency  make  such  arrangements  with  the correctional  facility  only  if  reasonably feasible and permissible in accordance with the laws and regulations applicable  to  such  facility; and  (6)  providing  information  which  the authorized agency shall obtain from the office of children and family  services,  outlining  the  legal rights  and  obligations  of  a  parent  who  is  incarcerated  or  in a residential substance abuse treatment program whose child is in  custody of  an  authorized  agency,  and  on  social  or rehabilitative services available in the community, including family visiting services,  to  aid in  the  development of a meaningful relationship between the parent and child.  Wherever possible, such information shall  include  transitional and  family  support  services  located  in  the  community  to which an incarcerated parent or parent participating in a  residential  substance abuse treatment program shall return.   8.  (a)  For the purposes of this section a child is "severely abused" by his or her parent if (i) the child has been found  to  be  an  abused child  as  a  result  of  reckless  or  intentional  acts  of the parent committed under circumstances evincing a depraved indifference to  human life, which result in serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law; or  (ii)  the  child  has  been found to be an abused child, as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of  the family  court act, as a result of such parent's acts; provided, however, the respondent must have committed or knowingly allowed to be  committed a  felony  sex  offense  as  defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75,  130.80,  130.95  and  130.96  of  the penal law and, for the purposes of this section the corroboration requirements contained in the penal law shall not apply to proceedings under this section; or  (iii) (A) the parent of such child has been convicted of murder in the first  degree  as defined in section 125.27, murder in the second degree as defined in section  125.25,  manslaughter  in  the  first  degree  as defined  in  section  125.20,  or  manslaughter  in the second degree as defined in section 125.15, and the victim of any such crime was  another child  of  the  parent or another child for whose care such parent is or has been legally responsible as defined in subdivision  (g)  of  section one  thousand  twelve  of the family court act, or another parent of the child, unless the convicted parent was a victim of physical,  sexual  or psychological  abuse  by the decedent parent and such abuse was a factor in causing the homicide; or has been convicted of an attempt  to  commit any  of  the foregoing crimes, and the victim or intended victim was the child or another child of the parent or another  child  for  whose  care such parent is or has been legally responsible as defined in subdivision (g)  of  section one thousand twelve of the family court act, or another parent of the child,  unless  the  convicted  parent  was  a  victim  of physical,  sexual or psychological abuse by the decedent parent and such abuse was a factor in causing the attempted homicide; (B) the parent  of such  child  has  been  convicted of criminal solicitation as defined in article one hundred, conspiracy as defined in article one  hundred  five or  criminal  facilitation  as defined in article one hundred fifteen of the penal law for conspiring, soliciting  or  facilitating  any  of  the foregoing  crimes,  and  the  victim or intended victim was the child or another child of the parent or another child for whose care such  parent is  or  has  been  legally responsible; (C) the parent of such child has been convicted of assault in the second degree  as  defined  in  section 120.05,  assault  in  the  first  degree as defined in section 120.10 or aggravated assault upon a person less than eleven years old  as  defined in section 120.12 of the penal law, and the victim of any such crime was the child or another child of the parent or another child for whose care such parent is or has been legally responsible; or has been convicted of an  attempt  to  commit  any  of the foregoing crimes, and the victim or intended victim was the child or another child of the parent or  another child  for whose care such parent is or has been legally responsible; or (D) the parent of such child has been convicted under  the  law  in  any other  jurisdiction  of  an  offense which includes all of the essential elements of any crime specified in  clause  (A),  (B)  or  (C)  of  this subparagraph; and  (iv)  the agency has made diligent efforts to encourage and strengthen the  parental  relationship,  including  efforts  to  rehabilitate   the respondent,  when  such  efforts  will  not  be  detrimental to the best interests of the child, and such efforts have been unsuccessful and  are unlikely  to  be successful in the foreseeable future. Where a court has previously determined in accordance with  this  chapter  or  the  family court  act  that reasonable efforts to make it possible for the child to return safely to his or her home are not required, the agency shall  not be  required  to  demonstrate  diligent  efforts  as  set  forth in this section.  (b) For the purposes of this section a child is "repeatedly abused" by his or her parent if:  (i) the child has been found to be an abused child, (A) as defined  in paragraph  (i)  of  subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; or (B)  as  defined in  paragraph  (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a  result  of  such  parent's  acts;  provided,  however,  the  respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in  sections  130.25,  130.30, 130.35,  130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law; and  (ii)  (A)  the child or another child for whose care such parent is or has been legally responsible has been previously found, within the  five years  immediately  preceding  the initiation of the proceeding in which such abuse is found, to be an abused child, as defined in paragraph  (i) or  (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, in  the case  of a finding of abuse as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act the respondent must have committed or knowingly allowed to be committed  a  felony  sex offense  as  defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75 and 130.80 of the penal  law,  or (B)  the  parent  has  been  convicted  of a crime under section 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67,  130.70,  130.75 or  130.80 of the penal law against the child, a sibling of the child or another child for  whose  care  such  parent  is  or  has  been  legally responsible,  within  the  five  year  period  immediately preceding the initiation of the proceeding in which abuse is found; and  (iii)  the  agency  has  made  diligent  efforts,  to  encourage   and strengthen  the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental  to  the  best interests  of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foreseeable future. Where a  court  has previously  determined  in  accordance  with  this chapter or the family court act that reasonable efforts to make it possible for the  child  to return  safely to his or her home are not required, the agency shall not be required to  demonstrate  diligent  efforts  as  set  forth  in  this section.  (c)  Notwithstanding  any  other provision of law, the requirements of paragraph (g) of subdivision three of this section shall be satisfied if one of the findings of abuse pursuant to subparagraph  (i)  or  (ii)  of paragraph  (b)  of  this  subdivision  is found to be based on clear and convincing evidence.  (d) A determination by the court in accordance with article ten of the family court act based upon clear and convincing evidence that the child was a severely abused child as defined in subparagraphs (i) and (ii)  of paragraph  (a)  of this subdivision shall establish that the child was a severely  abused  child  in  accordance  with  this  section.   Such   a determination  by the court in accordance with article ten of the family court  act  based  upon  a  fair  preponderance  of  evidence  shall  be admissible in any proceeding commenced in accordance with this section.  (e) A determination by the court in accordance with article ten of the family  court  act based upon clear and convincing evidence that a child was abused as defined in paragraph (i) of subdivision (e) of section ten hundred twelve of the family court act, as a  result  of  such  parent's acts; or (B) as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, the respondent must have committed or knowingly allowed  to  be  committed  a  felony sex offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67,  130.70, 130.75 and 130.80 of the penal law shall establish that the child was an abused  child  for  the  purpose  of  a  determination  as  required  by subparagraph (i) or (ii) of paragraph (b) of this  subdivision.  Such  a determination  by the court in accordance with article ten of the family  court  act  based  upon  a  fair  preponderance  of  evidence  shall  be admissible in any proceeding commenced in accordance with this section.  (f)  Upon  a  finding  pursuant  to  paragraph  (a)  or  (b)  of  this subdivision that the child has been severely or repeatedly abused by his or her parent, the court shall enter an order of disposition either  (i) committing  the  guardianship and custody of the child, pursuant to this section, or (ii) suspending judgment  in  accordance  with  section  six hundred  thirty-three  of  the family court act, upon a further finding, based on clear and convincing, competent, material and relevant evidence introduced in a dispositional hearing, that the best  interests  of  the child  require  such  commitment  or  suspension  of judgment. Where the disposition ordered  is  the  commitment  of  guardianship  and  custody pursuant  to  this  section,  an  initial freed child permanency hearing shall be completed pursuant to section one thousand eighty-nine  of  the family court act.   9.  Nothing  in  this  section  shall  be construed to terminate, upon commitment of the guardianship and custody of a child to  an  authorized agency  or  foster  parent,  any  rights and benefits, including but not limited to  rights  relating  to  contact  with  siblings,  inheritance, succession, social security, insurance and wrongful death action claims, possessed  by  or available to the child pursuant to any other provision of  law.  For  purposes  of  this  section,  "siblings"  shall   include half-siblings  and  those  who would be deemed siblings or half-siblings but for the termination  of  parental  rights  or  death  of  a  parent. Notwithstanding  any  other  provision  of law, a child committed to the custody and guardianship  of  an  authorized  agency  pursuant  to  this section shall be deemed to continue in foster care until such time as an adoption  or  another planned permanent living arrangement is finalized. Where the disposition ordered is  the  commitment  of  guardianship  and custody  pursuant  to  this  section,  an initial freed child permanency hearing shall be held pursuant to section one  thousand  eighty-nine  of the family court act.   10.  Upon  the  court's order transferring custody and guardianship to the commissioner, the attorney for  the  petitioning  authorized  agency shall  promptly  serve  upon  the persons who have been approved by such agency as the child's adoptive parents, notice of entry  of  such  order and advise such persons that an adoption proceeding may be commenced. In accordance with the regulations of the department, the authorized agency shall  advise  such  persons of the procedures necessary for adoption of the child. The authorized agency shall cooperate with  such  persons  in the provision of necessary documentation.   11. Upon the entry of an order committing the guardianship and custody of a child pursuant to this section, the court shall inquire whether any foster parent or parents with whom the child resides, or any relative of the child, or other person, seeks to adopt such child. If such person or persons  do seek to adopt such child, such person or persons may submit, and the court shall accept, all such petitions for the adoption  of  the child,  together  with  an  adoption home study, if any, completed by an authorized agency or disinterested person as such  term  is  defined  in subdivision  three  of  section  one  hundred  sixteen  of  the domestic relations law. The court  shall  thereafter  establish  a  schedule  for completion  of  other inquiries and investigations necessary to complete review of the adoption of the child and shall immediately set a schedule for completion of the adoption.   12. If the court determines to commit the custody and guardianship  of the  child  pursuant  to  this  section,  or  if the court determines to suspend judgement pursuant to section six hundred  thirty-three  of  the family court act, the court in its order shall determine if there is any  parent  to  whom  notice  of  an  adoption would be required pursuant to section one hundred eleven-a of the domestic relations law. In its order the court shall indicate whether  such  person  or  persons  were  given notice  of  the  proceeding and whether such person or persons appeared. Such determinations shall be conclusive in  all  subsequent  proceedings relating to the custody, guardianship or adoption of the child.   13.  A  petition to modify a disposition of commitment of guardianship and custody in order to  restore  parental  rights  may  be  brought  in accordance  with part one-A of article six of the family court act where the conditions enumerated in section six  hundred  thirty-five  of  such part have been met.