2023 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.  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
* NB Effective until September 1, 2024
* (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,

former sections 130.40, 130.45, 130.50, sections 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
* NB Effective September 1, 2024
(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
* NB Effective until September 1, 2024
* (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, former sections 130.40, 130.45, 130.50, sections 130.65, 130.67,
130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law; and
* NB Effective September 1, 2024
* (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
* NB Effective until September 1, 2024
* (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,  former  sections
130.40,  130.45,  130.50,  sections  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, former  sections  130.40,  130.45,
130.50,  sections  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
* NB Effective September 1, 2024
(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.
* NB Effective until September 1, 2024
* (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 (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, former sections 130.40,
130.45, 130.50, sections 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.
* NB Effective September 1, 2024
(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.
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.