2023 New York Laws › SOS - Social Services › Article 6 - Children › Title 1 - Care and Protection of Children › 384-A - Transfer of Care and Custody of Children.

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