NY Soc Serv L § 358-A (2021)
2021 New York Laws SOS - Social Services Article 5 - Assistance and Care Title 10 - Aid to Dependent Children 358-A - Dependent Children in Foster Care.

§ 358-a. Dependent children in foster care. (1) Initiation of judicial proceeding.  (a)  A  social services official who accepts or proposes to accept the custody and guardianship of a child by means of an instrument executed pursuant to the provisions of section three hundred eighty-four of this chapter, or the care and custody of a child as a  public  charge by means of an instrument executed pursuant to the provisions of section three  hundred  eighty-four-a  of  this chapter, shall determine whether such child is likely to remain in the care of such official for a period in excess of thirty consecutive days. If such official  determines  that the  child  is likely to remain in care for a period in excess of thirty consecutive days, such official shall petition the family court judge of the county or city in which the social services official has his or  her office,  to  approve  such  instrument  upon  a  determination  that the placement of the child is in the best interest of  the  child,  that  it would  be contrary to the welfare of the child to continue in his or her own home and, that where appropriate, reasonable efforts were made prior to the placement of the child into foster care to prevent  or  eliminate the need for removal of the child from his or her home and that prior to the  initiation  of  the  court  proceeding  required to be held by this subdivision, reasonable efforts were made to make it  possible  for  the child  to  return  safely  home.  In  the case of a child whose care and custody have been transferred to a social services official by means  of an  instrument  executed  pursuant  to  the  provisions of section three hundred eighty-four-a of this chapter, approval of the instrument  shall only   be  made  upon  an  additional  determination  that  all  of  the requirements of such section have been satisfied.   * (b) The social services official shall initiate  the  proceeding  by filing  the  petition as soon as practicable, but in no event later than thirty days following removal of  the  child  from  the  home  provided, however,  that  the  court  shall  receive, hear and determine petitions filed later than thirty days following removal of the child from his  or her  home,  but state reimbursement shall not be available to the social services district for care and maintenance provided to such  child.  The social  services official shall diligently pursue such proceeding. Where the care and custody of a child as a public charge has been  transferred to  a  social  services  official  by  means  of  an instrument executed pursuant to the provisions of section  three  hundred  eighty-four-a  of this  chapter  for  a period of thirty days or less for an indeterminate period which such official deems unlikely to  exceed  thirty  days,  and thereafter  such  official determines that such child will remain in his or her care and custody for a period in  excess  of  thirty  days,  such official shall, as soon as practicable but in no event later than thirty days  following  such  determination,  execute  with the child's parent, parents or guardian a  new  instrument  pursuant  to  the  provision  of section three hundred eighty-four or three hundred eighty-four-a of this chapter  and  shall  file  a  petition in family court, pursuant to this section, for approval of such instrument.  In  such  cases  involving  a social  services  official, expenditures for the care and maintenance of such child from the date of the initial transfer of his care and custody to the social services official shall be subject to state reimbursement.   * NB Effective until June 30, 2022   * (b) The social services official shall initiate  the  proceeding  by filing  the  petition as soon as practicable, but in no event later than thirty days following removal of  the  child  from  the  home  provided, however,  that  the  court  shall  receive, hear and determine petitions filed later than thirty days following removal of the child from his  or her  home,  but  state reimbursement to the social services district for care and maintenance provided to such child shall be denied pursuant  to  section  one  hundred fifty-three-d of this chapter. The social services official shall diligently pursue such proceeding.  Where  the  care  and custody  of  a child as a public charge has been transferred to a social services  official  by  means  of an instrument executed pursuant to the provisions of section three hundred eighty-four-a of this chapter for  a period  of  thirty  days  or less for an indeterminate period which such official deems unlikely to  exceed  thirty  days,  and  thereafter  such official  determines  that such child will remain in his or her care and custody for a period in excess of thirty days, such official  shall,  as soon  as  practicable  but  in no event later than thirty days following such determination, execute with the child's parent, parents or guardian a new instrument pursuant to the  provision  of  section  three  hundred eighty-four  or  three  hundred  eighty-four-a of this chapter and shall file a petition in family court, pursuant to this section, for  approval of  such instrument. In such cases involving a social services official, expenditures for the care and maintenance of such child from the date of the initial transfer of his care and  custody  to  the  social  services official  shall  be  subject to state reimbursement, notwithstanding the provisions of section one hundred fifty-three-d of this chapter.   * NB Effective June 30, 2022  (2) Contents of petition. (a)  Any  petition  required  or  authorized pursuant  to  subdivision  one  of this section shall allege whether the parent, parents or guardian executed the instrument because the  parent, parents  or  guardian would be unable to make adequate provision for the care, maintenance and supervision of such child  in  his  or  their  own home,  and  shall  include  facts  supporting the petition. The petition shall contain a notice in conspicuous print providing 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. The petition shall also 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 chapter, 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 chapter. The petition shall also set forth the efforts which were made, prior to the placement of  the  child  into foster  care,  to prevent or eliminate the need for removal of the child from his or her home and the efforts which were made prior to the filing of the petition to make it possible for the child to return safely home. If such efforts were not made, the petition shall set forth the  reasons why  these  efforts  were  not  made.  The  petition shall request that, pending any hearing which may be required by the family court  judge,  a temporary  order  be made transferring the care and custody of the child to the social services official in accordance  with  the  provisions  of subdivision three of this section. In the case of a child whose care and custody  have been transferred to a social services official by means of an instrument executed pursuant to section three  hundred  eighty-four-a of this chapter, the petition shall also allege and there shall be shown by  affidavit  or  other  proof  satisfactory  to the court that all the requirements of such section have been satisfied, including the  results of  the  investigation  to  locate relatives of the child, including any non-respondent parent and all of the child's grandparents. Such  results shall  include  whether  any  relative who has been located expressed an interest in becoming a foster parent for the child or in seeking custody or care of the child.  (b) The social services official who initiated  the  proceeding  shall file supplemental information with the clerk of the court not later than ten days prior to the date on which the proceeding is first heard by the court.  Such  information shall include relevant portions, as determined by  the  department,  of  the  assessment  of  the  child and his family circumstances performed and maintained, and the family's service plan if available, pursuant to sections four hundred  nine-e  and  four  hundred nine-f of this chapter. Copies of such supplemental information need not be  served upon those persons entitled to notice of the proceeding and a copy of the petition pursuant to subdivision four of this section.  (2-a) Continuing jurisdiction. (a) The court shall possess  continuing jurisdiction  over  the  parties  until  the  child  is  discharged from placement and all orders regarding supervision, protection  or  services have expired.  (b)  The court, upon approving an instrument under this section, shall schedule a permanency hearing pursuant to article ten-A  of  the  family court  act  for  a  date  certain  not  more than eight months after the placement of the child into foster care.  Such  date  certain  shall  be included in the order approving the instrument.  (3)  Disposition  of  petition. (a) If the court is satisfied that the parent, parents or  guardian  executed  such  instrument  knowingly  and voluntarily  and  because  he  or  she  would be unable to make adequate provision for the care, maintenance and supervision of such child in his or her  home,  and  that  the  requirements  of  section  three  hundred eighty-four-a  of  this  chapter, if applicable, have been satisfied and that where appropriate,  reasonable  efforts  were  made  prior  to  the placement of the child into foster care to prevent or eliminate the need for  removal  of  the  child  from his or her home and that prior to the initiation of the court proceeding required to be  held  by  subdivision one  of  this  section, reasonable efforts were made to make it possible for the child to return safely to his or her home, the  court  may  find and  determine that the best interests and welfare of the child would be promoted by removal of the child from such home, and that  it  would  be contrary  to the welfare of such child for the child to continue in such home, and the court shall thereupon grant the petition and approve  such instrument  and the transfer of the custody and guardianship or care and custody of such child to such social  services  official  in  accordance therewith.  If  the court determines that, where appropriate, reasonable efforts were made prior to the placement of the child into  foster  care to  prevent  or  eliminate the need for removal of the child from his or her  home,  that  prior  to  the  initiation  of  the  court  proceeding reasonable efforts were made to make it possible for the child to return safely  to  his  or  her  home, or that it would be contrary to the best interests of the child to continue  in  the  home,  or  that  reasonable efforts  to  prevent or eliminate the need for removal of the child from the home were not made but that the lack of such efforts was appropriate under the circumstances, the court order shall  include  such  findings. Approval  of  such  instrument  in a proceeding pursuant to this section shall not constitute a remand or commitment pursuant to this chapter and shall not preclude challenge in any other proceeding to the validity  of the  instrument.  If  the  permanency  plan  for  the child is adoption, guardianship, permanent placement with a fit  and  willing  relative  or another  planned  permanent  living arrangement other than reunification with the parent or parents of the child, the  court  must  consider  and determine in its order whether reasonable efforts are being made to make and finalize such alternate permanent placement.  (b)  For the purpose of this section, reasonable efforts to prevent or eliminate the need for removing the child from the home of the child  or  to  make  it  possible for the child to return safely to the home of the child shall not be required where the court determines that:  (1)  the  parent  of  such child has subjected the child to aggravated circumstances, as defined in subdivision twelve of this section;  (2) the parent of such child has been convicted of (i) murder  in  the first degree as defined in section 125.27 or murder in the second degree as defined in section 125.25 of the penal law and the victim was another child of the parent; or (ii) manslaughter in the first degree as defined in  section  125.20  or  manslaughter in the second degree as defined in section 125.15 of the penal law and the victim was another child of  the parent,  provided,  however, that the parent must have acted voluntarily in committing such crime;  (3) the parent of such child 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 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;  (4)  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 commission of one  of  the  foregoing  crimes  resulted  in  serious physical injury to the child or another child of the parent;  (5)  the  parent  of  such  child  has  been  convicted  in  any other jurisdiction of an offense which includes all of the essential  elements of  any  crime  specified  in  subparagraph  two,  three or four of this paragraph, and the victim of such offense was the child or another child of the parent; or  (6) the parental rights of the parent to a sibling of such child  have been involuntarily terminated; unless  the  court determines that providing reasonable efforts would be in the best interests of the child,  not  contrary  to  the  health  and safety of the child, and would likely result in the reunification of the parent  and  the  child in the foreseeable future. The court shall state such findings in its order.   If the court determines  that  reasonable  efforts  are  not  required because  of  one  of  the  grounds set forth above, a permanency hearing shall be held within thirty days of the finding of the court  that  such efforts  are  not  required. Such hearing shall be conducted pursuant to section one thousand eighty-nine of the  family  court  act.  The  local social  services  official  shall  thereafter make reasonable efforts to place the child in a timely manner and to complete  whatever  steps  are necessary  to finalize the permanent placement of the child as set forth in the permanency plan approved by the court. If reasonable efforts  are determined by the court not to be required because of one of the grounds set forth in this paragraph, the local social services official may file a  petition  for  termination  of  parental  rights  of  the  parent  in accordance with section three hundred eighty-four-b of this chapter.  (c) For the purpose of this section, in determining reasonable efforts to be made with respect to  a  child,  and  in  making  such  reasonable efforts, the child's health and safety shall be the paramount concern.  (d)  For  the  purpose  of  this  section,  a  sibling shall include a half-sibling.  (e) The order granting the petition of a social services official  and approving  an  instrument  executed  pursuant  to  section three hundred  eighty-four-a of this chapter may include conditions, where  appropriate and  specified  by the judge, requiring the implementation of a specific plan of action by the social  services  official  to  exercise  diligent efforts  toward  the discharge of the child from care, either to his own family or to an adoptive home; provided, however, that such  plan  shall not  include the provision of any service or assistance to the child and his or her family which  is  not  authorized  or  required  to  be  made available  pursuant  to  the  comprehensive annual services program plan then in effect. An order of placement shall include, at the least:  (i) a description of the visitation plan;  (ii) a direction that the respondent or respondents shall be  notified of  the  planning  conference  or  conferences  to  be  held pursuant to subdivision three of section four hundred nine-e  of  this  chapter,  of their right to attend the conference, and of their right to have counsel or other representative or companion with them;   A copy of the court's order and the service plan shall be given to the respondent.  The  order  shall  also  contain a notice that if the child remains in foster  care  for  more  than  fifteen  of  the  most  recent twenty-two  months, the agency may be required by law to file a petition to terminate parental rights.   Nothing in such order shall preclude either party  to  the  instrument from  exercising  its  rights  under  this  section  or  under any other provision of law relating to the return of the care and custody  of  the child  by  the  social  services  official  to  the  parent,  parents or guardian. Violation of such on order  shall  be  subject  to  punishment pursuant to section seven hundred fifty-three of the judiciary law.  (f)  For  a  child  who has attained the age of fourteen, if the court grants the petition and approves  an  instrument  executed  pursuant  to section three hundred eighty-four or three hundred eighty-four-a of this chapter and the transfer of custody and guardianship or care and custody of  the  child  to  a  local  social  services  official the court shall determine in its order the services and assistance needed to assist  the child in learning independent living skills.  (g) (i) In any case in which an order has been issued pursuant to this section  approving  a  foster  care  placement  instrument,  the  social services official or authorized agency charged with custody or  care  of the  child shall report the initial placement and any anticipated change in placement to the court and the attorneys for the  parties,  including the  attorney  for the child, forthwith, but not later than one business day following either the decision to make the initial  placement  or  to change  the  placement  or  the  actual  date  the  initial placement or placement change  occurred,  whichever  is  sooner.  Such  notice  shall indicate  the  date that the placement change is anticipated to occur or the  date  the  placement  change  occurred,  as  applicable.  Provided, however,  if  such  notice  lists  an  anticipated  date for the initial placement or placement change, the local  social  services  district  or authorized  agency shall subsequently notify the court and attorneys for the parties, including the attorney for  the  child,  of  the  date  the placement or placement change occurred; such notice shall occur no later than one business day following the placement or placement change.  (ii)  When  a  child  whose  legal  custody  was  transferred  to  the commissioner of a local social services district in accordance with this section resides in a qualified residential treatment program, as defined in section four hundred nine-h of this chapter, and where  such  child's initial placement or change in placement in such program commenced on or after  September  twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to  subparagraph  (i)  of  this  paragraph  and motion of the local social services district, the court shall schedule a  court  review  to make an assessment and determination of such placement in accordance with section three hundred ninety-three of  this  chapter. Notwithstanding  any  other provision of law to the contrary, such court review  shall occur no later than sixty days from the date the placement of the child in the qualified residential treatment program commenced.  (4) Notice. (a) Upon  the  filing  of  a  petition  pursuant  to  this section, the family court judge shall direct that service of a notice of the  proceeding  and  a  copy  of  the  petition shall be made upon such persons and in such manner as the judge may direct.  If  the  instrument executed  by  the parent, parents or guardian of a child consents to the jurisdiction of the  family  court  over  such  proceeding,  and  waives service  of the petition and notice of proceeding, then the family court judge may, in his discretion, dispense with service upon the  consenting parent, parents or guardian, provided, however, that a waiver of service of  process and notice of the proceeding by a parent or guardian who has transferred the care and custody of a child  to  an  authorized  agency, pursuant  to  section three hundred eighty-four-a of this chapter, shall be null and void and shall not be given effect by the court.  Notice  to any  parent,  parents  or  guardian  who has not executed the instrument shall be required.  (b) In the event the family court judge  determines  that  service  by publication  is  necessary  and  orders  service by publication, service shall be made in accordance with the provisions of  rule  three  hundred sixteen  of  the civil practice law and rules, provided, however, that a single publication of the summons or other  process  with  a  notice  as specified  herein in only one newspaper designated in the order shall be sufficient. In no event shall  the  whole  petition  be  published.  The petition  shall  be  delivered to the person summoned at the first court appearance pursuant to section one hundred fifty-four-a  of  the  family court  act. The notice to be published with the summons or other process shall state the date, time, place and purpose of the proceeding.  (i) If the petition is initiated to transfer custody and  guardianship of  a  child  by  an  instrument  executed pursuant to the provisions of section three hundred eighty-four of this  chapter,  the  notice  to  be published  shall  also  state that failure to appear may result, without further notice, in the transfer of custody and guardianship of the child to a social services official in this proceeding.  (ii) If the petition is initiated to transfer care and  custody  of  a child  by  an  instrument executed pursuant to the provisions of section three hundred eighty-four-a of this chapter, the notice to be  published shall  also  state  that  failure  to appear may result, without further notice, in the transfer of care and custody of the  child  to  a  social services official in this proceeding.  (5)  Hearing  and  waiver. The instrument may include a consent by the parent, parents or  guardian  to  waiver  of  any  hearing  and  that  a determination  may  be  made by the family court judge based solely upon the petition, and other papers and affidavits, if any, submitted to  the family  court  judge,  provided,  however, that a waiver of hearing by a parent or guardian who has transferred the care and custody of  a  child to an authorized agency, pursuant to section three hundred eighty-four-a of  this chapter, shall be effective only if such waiver was executed in an instrument separate from  that  transferring  the  child's  care  and custody.  In  any  case where an effective waiver has been executed, the family court judge may dispense with a hearing, approve  the  instrument and  the transfer of the custody and guardianship or care and custody of the child to  the  social  services  official  and  make  the  requisite findings  and  determinations  provided for in subdivision three of this section, if it appears to the satisfaction of  the  family  court  judge  that  the  allegations  in  the petition are established sufficiently to warrant the family court judge to grant  such  petition,  to  make  such findings and determination, and to issue such order.   In  any  case  where a hearing is required, the family court judge, if the holding of an  immediate  hearing  on  notice  is  impractical,  may forthwith,  upon  the basis of the instrument and the allegations of the petition, make a temporary finding that the parent, parents, or guardian of the child are  unable  to  make  adequate  provision  for  the  care, maintenance  and  supervision  of such child in the child's own home and that the best interest and welfare of the child will be promoted by  the removal  of  such  child  from such home and thereupon, the family court judge shall make a temporary order transferring the care and custody  of such  child  to  the  social services official, and shall set the matter down for hearing on the first feasible date.  (6) Representation. In any case where a hearing  is  directed  by  the family  court  judge,  he  or she shall, pursuant to section two hundred forty-nine of the family court act, appoint an attorney to represent the child, who shall be admitted to practice law in the state of New York.  (7) Return of child. If an instrument provides for the return  of  the care and custody of a child by the local social services official to the parent,  parents  or  guardian  upon  any terms and conditions or at any time, the local social services official shall comply with such terms of such instrument without further court order. Every  order  approving  an instrument providing for the transfer of the care and custody of a child to  a  local  social  services official shall be served upon the parent, parents or guardian who executed such instrument in such manner  as  the family  court judge may provide in such order, together with a notice of the terms and conditions under which the care and custody of such  child may  be  returned  to  the parent, parents or guardian. If an instrument provides for the return of the care and custody of a child by the  local social  services  official  to  the  parent, parents or guardian without fixing a definite date for such return, or if the local social  services official  shall  fail  to  return a child to the care and custody of the child's parent, parents or guardian in accordance with the terms of  the instrument,  the  parent,  parents  or  guardian  may seek such care and custody by motion for return of such child and order to  show  cause  in such  proceeding  or  by  writ  of  habeas  corpus in the supreme court. Nothing in this subdivision shall limit the requirement for a permanency hearing pursuant to article ten-A of the family court act.  (8) Appealable orders.  Any  order  of  a  family  court  denying  any petition  of  a  local  social  services official filed pursuant to this section, or any order of a family court granting or denying  any  motion filed by a parent, parents or guardian for return of a child pursuant to this  section,  shall  be  deemed  an  order  of  disposition appealable pursuant to article eleven of the family court act.  (9) Duty of social services official. In the event that a family court judge denies a petition of a social services official for approval of an instrument, upon a finding that the welfare of the child  would  not  be promoted  by foster care, such social services official shall not accept or retain the care and  custody  as  a  public  charge  or  custody  and guardianship  of  such  child,  provided,  however, that the denial by a family court judge of a petition of a  social  services  official  filed pursuant  to  this  section  shall  not limit or affect the duty of such social services official  to  take  such  other  action  or  offer  such services  as  are  authorized  by  law  to  promote the welfare and best interests of the child.  (10) Visitation rights; non-custodial parents  and  grandparents.  (a) Where   a   social  services  official  incorporates  in  an  instrument  visitation rights set forth  in  an  order,  judgment  or  agreement  as described  in  paragraph (d) of subdivision two of section three hundred eighty-four-a of this chapter, such official shall make inquiry  of  the state  central  register  of  child  abuse and maltreatment to determine whether or not the person having such visitation rights is a subject  or another   person  named  in  an  indicated  report  of  child  abuse  or maltreatment, as such terms are defined in section four  hundred  twelve of this chapter, and shall further ascertain, to the extent practicable, whether or not such person is a respondent in a proceeding under article ten  of  the family court act whereby the respondent has been alleged or adjudicated to have abused or neglected such child.  (b) Where a social services official or the  attorney  for  the  child opposes  incorporation  of  an  order,  judgment or agreement conferring visitation rights as provided for in paragraph (e) of subdivision two of section three hundred eighty-four-a of this chapter, the social services official or attorney for the child shall apply for an order  determining that  the  provisions of such order, judgment or agreement should not be incorporated into the instrument executed pursuant to such section. Such order shall be granted upon a finding, based on competent, relevant  and material  evidence,  that the child's life or health would be endangered by incorporation and enforcement of visitation rights  as  described  in such  order, judgment or agreement. Otherwise, the court shall deny such application.  (c)  Where  visitation  rights  pursuant  to  an  order,  judgment  or agreement are incorporated in an instrument, the parties may agree to an alternative schedule of visitation equivalent to and consistent with the original or modified visitation order, judgment, or agreement where such alternative  schedule  reflects changed circumstances of the parties and is consistent with the best interests of the child. In  the  absence  of such an agreement between the parties, the court may, in its discretion, upon  application  of  any  party  or  the  child's  attorney,  order an alternative schedule  of  visitation,  as  described  herein,  where  it determines  that such schedule is necessary to facilitate visitation and to protect the best interests of the child.  (d) The order providing an alternative schedule  of  visitation  shall remain  in  effect  for  the  length  of  the  placement of the child as provided for in  such  instrument  unless  such  order  is  subsequently modified  by the court for good cause shown. Whenever the court makes an order  denying  or  modifying  visitation  rights   pursuant   to   this subdivision,   the   instrument   described  in  section  three  hundred eighty-four-a of this chapter shall be deemed amended accordingly.  (11) Siblings, placement and visitation. (a) In reviewing any petition brought under this section,  the  court  shall  inquire  if  the  social services official has arranged for the placement of the child who is the subject of the petition with any minor siblings or half-siblings who are placed  in  care  or,  if  such  children have not been placed together, whether such official has arranged  for  regular  visitation  and  other forms of regular communication between such child and such siblings.  (b) If the court determines that the subject child has not been placed with his or her minor siblings or half-siblings who are in care, or that regular  visitation and other forms of regular communication between the subject child and his or her minor siblings  or  half-siblings  has  not been  provided  or  arranged  for, the court may direct such official to provide  or  arrange  for  such  placement  or  regular  visitation  and communication  where  the  court finds that such placement or visitation and communication is  in  the  child's  and  his  or  her  siblings'  or half-siblings'  best  interests.  Placement  or  regular  visitation and communication with siblings or half-siblings shall be  presumptively  in  the  child's  and  his or her siblings' or half-siblings' best interests unless such placement or visitation and communication would be  contrary to  the child's or his or her siblings' or half-siblings' health, safety or  welfare,  or  the lack of geographic proximity precludes or prevents visitation.  (c) If a child placed in foster care pursuant to this section  is  not placed  together  or  afforded  regular  communication  with  his or her siblings, the child, through his or her attorney or through a parent  on his  or  her  behalf,  may  move  for  an  order  regarding placement or communication. The motion shall  be  served  upon:  (i)  the  parent  or parents  in  the  proceeding  under  this section; (ii) the local social services official having the care of  the  child;  (iii)  other  persons having  care, custody and control of the child, if any; (iv) the parents or other persons having care, custody and control of the siblings to  be visited  or  with  whom  contact  is sought; (v) such sibling himself or herself if ten years of age or older; and (vi) such sibling's  attorney, if  any.  Upon  receipt of a motion filed under this paragraph the court shall determine, after giving notice and an opportunity to be  heard  to the  persons served, whether visitation and contact would be in the best interests of the child and his or her siblings. The court may order that the child be placed together with or have regular communication with his or her siblings if the court determines it to be in the  best  interests of the child and his or her siblings.  (d)   For   purposes   of   this  section,  "siblings"  shall  include half-siblings and those who would be deemed  siblings  or  half-siblings but  for  the  surrender,  termination  of parental rights or death of a parent.  (12) For the purposes of this section, aggravated circumstances  means where  a child has been either severely or repeatedly abused, as defined in subdivision eight of section  three  hundred  eighty-four-b  of  this chapter;  or  where  a child has subsequently been found to be an abused child, as defined in paragraph  (i)  or  (iii)  of  subdivision  (e)  of section  one  thousand twelve of the family court act, within five years after return home following placement in foster  care  as  a  result  of being  found  to  be a neglected child, as defined in subdivision (f) of section one thousand twelve of the family court act, provided  that  the respondent  or  respondents in each of the foregoing proceedings was the same; or where the court finds by clear and convincing evidence that the parent of a child in foster care has refused and has failed  completely, over a period of at least six months from the date of removal, to engage in  services  necessary  to  eliminate  the  risk of abuse or neglect if returned to the parent, and has failed to secure services on his or  her own or otherwise adequately prepare for the return home and, after being informed  by  the  court  that  such  an  admission  could eliminate the requirement  that  the  local  department  of  social  services  provide reunification  services  to  the  parent, the parent has stated in court under oath that he or she intends to continue to refuse  such  necessary services  and  is  unwilling  to  secure  such services independently or otherwise prepare for the child's return home; provided,  however,  that if the court finds that adequate justification exists for the failure to engage  in  or secure such services, including but not limited to a lack of child care, a lack of transportation,  and  an  inability  to  attend services  that  conflict  with  the parent's work schedule, such failure shall not constitute an aggravated circumstance; or where  a  court  has determined  a  child  five days old or younger was abandoned by a parent with an intent to wholly abandon such child and with the intent that the child be safe from physical injury  and  cared  for  in  an  appropriate manner.