Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Current Through February 2016

Physical Abuse

Citation: Soc. Serv. Law § 371‘Abused child’ means a child younger than age 18 whose parent or other person legally responsible for his or her care:

• Inflicts or allows to be inflicted upon such child physical injury by other than accidental means that causes or creates a substantial risk of death, serious or protracted disfigurement, protracted impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily organ
• Creates or allows to be created a substantial risk of physical injury to such child by other than accidental means that would be likely to cause death, serious or protracted disfigurement, protracted impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily organ

Neglect

Citation: Soc. Serv. Law § 371‘Neglected child’ means a child younger than age 18 whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his or her parent or other person legally responsible for his or her care to exercise a minimum degree of care:

• In supplying the child with adequate food, clothing, shelter, education, or medical or surgical care, although financially able to do so or offered financial or other reasonable means to do so
• In providing the child with proper supervision or guardianship
• By unreasonably inflicting or allowing harm to be inflicted, or a substantial risk thereof, including the infliction of excessive corporal punishment
• By misusing drugs or alcoholic beverages to the extent that he or she loses self-control of his or her actions
• By any other acts of a similarly serious nature requiring the aid of the court

Sexual Abuse/Exploitation

Citation: Soc. Serv. Law § 371; Family Court Act § 1012The term ‘abused child’ includes a child younger than age 18 whose parent or other person legally responsible for his or her care commits, or allows to be committed, an act of sexual abuse against such child, as defined in penal law.

The term ‘abused child’ also includes a child younger than age 18 whose parent or other person legally responsible for his care:

• Commits or allows to be committed any sex offense against the child, as defined in article 130 of the penal law, including sexual misconduct, rape, and sexual abuse
• Allows, permits, or encourages the child to engage in child prostitution, as described in §§ 230.25, 230.30, and 230.32 of the penal law
• Commits an act of incest, as described §§ 255.25, 255.26, and 255.27 of the penal law
• Allows the child to engage in acts or conduct to produce, promote, or possess child pornography, as described in article 263 of the penal law

Emotional Abuse

Citation: Family Court Act § 1012‘Impairment of emotional health’ and ‘impairment of mental or emotional condition’ includes a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, acting out, or misbehavior, including incorrigibility, ungovernability, or habitual truancy; provided, however, that such impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child.

Abandonment

Citation: Soc. Serv. Law § 384-b
A child is ‘abandoned’ by his or her parent if such parent evinces an intent to forgo 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.

Standards for Reporting

Citation: Soc. Serv. Law § 413
A report is required when a mandatory reporter has reasonable cause to suspect that a child coming before him or her in his or her professional or official capacity is an abused or maltreated child.

Persons Responsible for the Child

Citation: Soc. Serv. Law § 371; Family Court Act § 1012Responsible persons include the child’s parent and other persons legally responsible for the child’s care.

The term ‘person legally responsible’ includes the child’s custodian, guardian, and any other person responsible for the child’s care at the relevant time. A custodian may include a person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child.

Exceptions

Citation: Soc. Serv. Law § 371When the parent is voluntarily and regularly participating in a rehabilitative program, evidence that the parent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he or she loses self-control of his or her actions shall not establish that the child is a neglected child in the absence of evidence establishing that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired.

Current Through August 2013

Defined in Domestic Violence Civil Laws

Citation: Soc. Serv. Law § 459-aThe term ‘victim of domestic violence’ means any person over age 16, any married person, or any parent accompanied by his or her minor child or children in situations in which such person or such person’s child is a victim of an act that would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; and:

• Such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person’s child.
• Such act or acts are or are alleged to have been committed by a family or household member.

Defined in Child Abuse Reporting and Child Protection Laws

Citation:This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

Citation:This issue is not addressed in the statutes reviewed.

Persons Included in the Definition

Citation: Soc. Serv. Law § 459-aThe term ‘family or household members’ means the following individuals:

• Persons related by consanguinity or affinity
• Persons legally married to one another
• Persons formerly married to one another regardless of whether they still reside in the same household
• Persons who have a child in common regardless of whether such persons are married or have lived together at any time
• Unrelated persons who are continually or at regular intervals living in the same household or who have in the past continually or at regular intervals lived in the same household
• Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time
• Any other category of individuals deemed to be a victim of domestic violence as defined by the Office of Children and Family Services in regulation

Factors that may be considered in determining whether a relationship is an ‘intimate relationship’ include, but are not limited to:

• The nature or type of relationship regardless of whether the relationship is sexual in nature
• The frequency of interaction between the persons
• The duration of the relationship

Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an intimate relationship.

‘Parent’ means a natural or adoptive parent or any individual lawfully charged with a minor child’s care or custody.

Current Through June 2013

Confidentiality of Records

Citation: Soc. Serv. Law § 422Reports made pursuant to this title as well as any other information obtained, reports written, or photographs taken concerning such reports in the possession of the Office of Children and Family Services or local departments shall be confidential.

Persons or Entities Allowed Access to Records

Citation: Soc. Serv. Law § 422Reports and information shall be made available to:

• A physician who reasonably suspects that a child may be abused or maltreated
• A person authorized to place a child in protective custody when it is needed to determine whether to place the child in protective custody
• A duly authorized agency having the responsibility for the care or supervision of a child who is reported to the central register
• Any person who is the subject of the report or other persons named in the report
• A court when it is necessary for the determination of an issue before it
• A grand jury when it is necessary for the determination of charges
• Any appropriate State legislative committee responsible for child protective legislation
• Any person engaged in bona fide research
• A provider agency or a licensing agency
• The Justice Center for the Protection of People with Special Needs in connection with an investigation being conducted by the center
• A probation service conducting an investigation in which there is reason to suspect the child or the child’s sibling may have been maltreated and such child or sibling, parent, guardian, or other person legally responsible for the child is a person named in an indicated report
• A district attorney, an assistant district attorney, investigator, an officer of the State police, the regional State park police, a city police department, or a sheriff’s office when such information is necessary to conduct a criminal investigation or prosecution of a person
• The New York City Department of Investigation
• A provider or coordinator of services to which a child or a child’s family have been referred when it is necessary to enable the provider or coordinator to establish and implement a plan of service for the child or the child’s family, to monitor the provision and coordination of services, or to directly provide services
• A disinterested person making an adoption investigation
• A criminal justice agency conducting an investigation of a missing child where there is reason to suspect such child or such child’s sibling, parent, guardian, or other person legally responsible for such child is a person named in an indicated report of child maltreatment and that such information is needed to further such investigation
• A child protective service of another State when necessary to conduct a child abuse investigation within its jurisdiction
• An attorney appointed to represent the child
• A child care resource and referral program
• Officers and employees of the State comptroller, the city comptroller of the city of New York, or the county officer for purposes of a duly authorized performance audit
• Members of a local or regional fatality review team, a local or regional multidisciplinary investigative team, or a citizen review panel
• An entity with appropriate legal authority in another State to license, certify, or otherwise approve prospective foster and adoptive parents when disclosure of information regarding the prospective foster or adoptive parents and other persons over age 18 residing in the home of such prospective parents is required by Federal law
• A social services official who is investigating whether an adult is in need of protective services when such official has reasonable cause to believe that adult may be in need of protective services due to the conduct of an individual or individuals who had access to the adult when the adult was a child

When Public Disclosure of Records is Allowed

Citation: Soc. Serv. Law § 422-aA commissioner may disclose information regarding the abuse or maltreatment of a child when such disclosure shall not be contrary to the best interests of the child, the child’s siblings, or other children in the household, and any one of the following factors is present:

• The subject of the report has been charged with committing a crime related to a report maintained in the statewide central register.
• The investigation of the abuse or maltreatment of the child by the local child protective service or the provision of services by such service has been publicly disclosed in a report required to be disclosed in the course of their official duties, by a law enforcement agency or official, a district attorney, any other State or local investigative agency or official, or by a judge of the unified court system.
• There has been a prior knowing, voluntary, public disclosure by an individual concerning a report of child abuse or maltreatment in which such individual is named as the subject of the report.
• The child named in the report has died, or the report involves the near fatality of a child.

Use of Records for Employment Screening

Citation: Soc. Serv. Law § 422Chief executive officers of authorized agencies, directors of daycare centers, and directors of facilities operated or supervised by the Department of Education, the Division for Youth, the Office of Mental Health, or the Office of Mental Retardation and Developmental Disabilities, may access the information in records and reports in connection with a disciplinary investigation, action, or administrative or judicial proceeding instituted by any of such officers or directors against an employee of any such agency, center, or facility who is the subject of an indicated report when the incident of abuse or maltreatment contained in the report occurred in the agency, center, facility, or program, and the purpose of such proceeding is to determine whether the employee should be retained or discharged.

Current Through March 2015

Citation: Soc. Serv. Law § 419

Any person, official, or institution participating in good faith in making a report, the taking of photographs, or the removal or keeping of a child pursuant to this title, or the disclosure of Child Protective Services information in compliance with child reporting laws, shall have immunity from any civil or criminal liability that might otherwise result by reason of such actions.

For the purpose of any civil or criminal proceeding, the good faith of any such person, official, or institution required to report cases of child abuse or maltreatment or providing a reporting procedure service shall be presumed–provided that person, official, or institution was acting in the discharge of their duties and within the scope of their employment, and that such liability did not result from the willful misconduct or gross negligence of such person, official, or institution.

Current Through February 2013

Individual Responsibility to Report

Citation: Soc. Serv. Law §§ 413(1); 415Mandated reporters shall immediately make an oral or electronic report to the statewide central register when they have reasonable cause to suspect that a child has been abused or neglected by a person responsible for that child’s care. Oral reports shall be followed by written reports within 48 hours.

Content of Reports

Citation: Soc. Serv. Law § 415Written reports shall be made in a manner prescribed and on forms supplied by the commissioner of the Office of Children and Family Services and shall include the following information:

• The names and addresses of the child and the child’s parents or other person responsible for the child’s care
• The child’s age, sex, and race
• The nature and extent of any injury, abuse, or maltreatment, including any evidence of prior injuries, abuse, or maltreatment to the child or the child’s siblings
• The name of the person or persons alleged to be responsible for causing the injury, abuse, or maltreatment, if known
• Family composition
• The source of the report
• The name and contact information of the person making the report
• Actions taken by the reporting source
• Any other information that the reporter believes may be helpful or required by regulation

Reporting Suspicious Deaths

Citation: Soc. Serv. Law § 418Any mandated reporter, including workers of the local child protective service agency or an official of the State agency responsible for investigation of a report of abuse or maltreatment of a child in residential care, who has reasonable cause to suspect that a child has died as a result of abuse or maltreatment shall report that fact to the appropriate medical examiner or coroner.

The medical examiner or coroner shall accept the report for investigation and shall issue a preliminary written report of his or her findings within 60 days of the date of death, absent extraordinary circumstances, and his or her final written report promptly to the police, the appropriate district attorney, the local child protective service, the Office of Children and Family Services, and, if the institution making the report is a hospital, the hospital. The Office of Children and Family Services shall promptly provide a copy of the preliminary and final reports to the statewide central register of child abuse and maltreatment.

Reporting Substance-Exposed Infants

Citation:This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Citation: Soc. Serv. § 415Oral reports shall be made to the statewide central register of child abuse and maltreatment unless the appropriate local plan for the provision of child protective services provides that oral reports should be made to the local child protective service.

Initial Screening Decisions

Citation: Soc. Serv. Law § 427-aAny social services district may, upon the authorization of the Office of Children and Family Services, establish a program that implements differential responses to reports of child abuse and maltreatment.

The criteria for determining which cases may be placed in the assessment track shall be determined by the local department of social services, except that reports including any criminal allegations such as a sex offense, including prostitution, incest, or child pornography; assault of a child; murder or manslaughter; child abandonment; or severe, repeated abuse or neglect shall not be included in the assessment track of a differential response program.

For all cases included in the family assessment and services track:

• Reports taken at the statewide central register of child abuse and maltreatment shall be transmitted to the appropriate local child protective service.
• A social services district shall, consistent with the criteria for the program, identify those reports that are initially eligible to be included in the family assessment and services track.

Agency Conducting the Assessment/Investigation

Citation: Soc. Serv. Law §§ 423; 427-aEvery local department of social services shall establish a child protective service within the department with the responsibility to conduct investigations of reports of child maltreatment.

For those reports that are included in the family assessment and services track, the social services district shall conduct the family assessments.

Assessment/Investigation Procedures

Citation: Soc. Serv. Law §§ 424; 427-aUpon receipt of a report, each child protective service shall commence, within 24 hours, an appropriate investigation that shall include:

• An evaluation of the environment of the child named in the report and any other children in the same home
• A determination of the risk to such children if they continue to remain in the existing home environment
• A determination of the nature, extent, and cause of any condition enumerated in the report
• The names, ages, and conditions of other children in the home
• After seeing to the safety of the child or children, notify the subjects of the report and other persons named in the report in writing of the existence of the report and their respective rights

When the social services district determines that a case is appropriate to be included in the family assessment and services track, the district’s activities shall include, at a minimum, the following:

• The provision of written notice to each parent or caregiver explaining that it is the intent of the social services district to meet the needs of the family without engaging in a traditional child protective services investigation
• An examination, with the family, of the family’s strengths, concerns, and needs
• Where appropriate, an offer of assistance that shall include case management that is supportive of family stabilization
• The planning and provision of services responsive to the service needs of the family
• An ongoing joint evaluation and assessment of the family’s progress including periodic assessments of risk to the child

Timeframes for Completing Investigations

Citation: Soc. Serv. Law §§ 424; 427-aEach child protective service shall:

• No later than 7 days after receipt of the initial report, send a preliminary written report of the initial investigation, including evaluation and actions taken or contemplated, to the central register
• Determine, within 60 days, whether the report is ‘indicated’ or ‘unfounded’

For reports assigned to the family assessment and services track, the social services district shall be responsible for ensuring that the children are safe in their homes. A safety assessment shall be commenced within 24 hours of receipt of the report and completed within 7 days.

Classification of Reports

Citation: Soc. Serv. Law § 412Reports of investigations shall be classified as follows:

• A report shall be ‘unfounded’ unless an investigation determines that some credible evidence of the alleged abuse or maltreatment exists.
• A report shall be ‘indicated’ if an investigation determines that some credible evidence of the alleged abuse or maltreatment exists.

Current Through August 2015

Professionals Required to Report

Citation: Soc. Serv. Law § 413The following persons and officials are required to report:

• Physicians, physician assistants, surgeons, medical examiners, coroners, dentists, dental hygienists, osteopaths, optometrists, chiropractors, podiatrists, residents, interns, psychologists, registered nurses, social workers, or emergency medical technicians
• Licensed creative arts therapists, marriage and family therapists, mental health counselors, or psychoanalysts
• Hospital personnel or Christian Science practitioners
• School officials, including but not limited to, teachers, guidance counselors, school psychologists, school social workers, school nurses, or administrators
• Full- or part-time compensated school employees required to hold temporary coaching licenses or professional coaching certificates
• Social services workers, daycare center workers, providers of family or group family daycare, or any other child care or foster care worker
• Directors of children’s overnight camps, summer day camps, or traveling summer day camps
• Employees or volunteers in residential care facilities for children that are licensed, certified, or operated by the Office of Children and Family Services
• Mental health professionals, substance abuse counselors, alcoholism counselors, or all persons credentialed by the Office of Alcoholism and Substance Abuse Services
• Peace officers, police officers, district attorneys or assistant district attorneys, investigators employed in the office of a district attorney, or other law enforcement officials

Reporting by Other Persons

Citation: Soc. Serv. Law § 414Any other person who has reasonable cause to suspect that a child is abused or maltreated may report.

Institutional Responsibility to Report

Citation: Soc. Serv. Law § 413Whenever a person is required to report in his or her capacity as a member of the staff of a medical or other public or private institution, school, facility, or agency, he or she shall make the report as required and immediately notify the person in charge of such institution, school, facility, or agency, or his or her designated agent. The person in charge, or the designated agent of such person, shall be responsible for all subsequent administration necessitated by the report. Any report shall include the name, title, and contact information for every staff person of the institution who is believed to have direct knowledge of the allegations in the report. Nothing in this section or title is intended to require more than one report from any such institution, school, or agency.

A medical or other public or private institution, school, facility, or agency shall not take any retaliatory personnel action against an employee because such employee believes that he or she has reasonable cause to suspect that a child is an abused or maltreated child and that employee therefore makes a report in accordance with this title. No school, school official, child care provider, foster care provider, residential care facility provider, hospital, medical institution provider, or mental health facility provider shall impose any conditions, including prior approval or prior notification, upon a member of their staff specifically required to report under this title.

Standards for Making a Report

Citation: Soc. Serv. Law § 413A report is required when the reporter has reasonable cause to suspect:

• A child coming before him or her in his or her professional or official capacity is an abused or maltreated child.
• The parent, guardian, custodian, or other person legally responsible for the child comes before the reporter and states from personal knowledge facts, conditions, or circumstances that, if correct, would render the child an abused or maltreated child.

Privileged Communications

Citation: Soc. Serv. Law § 415Notwithstanding the privileges set forth in article 45 of the civil practice law and rules, and any other provision of law to the contrary, mandated reporters who make a report that initiates an investigation of an allegation of child abuse or maltreatment are required to comply with all requests for records made by a child protective service relating to the report.

Inclusion of Reporter’s Name in Report

Citation: Soc. Serv. Law § 415The report shall include the name and contact information for the reporter.

Disclosure of Reporter Identity

Citation: Soc. Serv. Law § 422-aAny disclosure of information shall not identify the source of the report.

Current Through April 2015

Citation: Soc. Serv. Law § 413(4)Any person, institution, school, facility, agency, organization, partnership, or corporation that employs persons who are mandated to report suspected incidents of child abuse or maltreatment and whose employees, in the normal course of their employment travel to locations where children reside, shall provide, consistent with § 421 of this title, all current and new employees with information on recognizing the signs of an unlawful methamphetamine laboratory. Pursuant to § 19.27 of the mental hygiene law, the Office of Alcoholism and Substance Abuse Services shall make available to such employers information on recognizing the signs of unlawful methamphetamine laboratories.

Citation: Soc. Serv. Law § 371(4-a)‘Neglected child’ means a child younger than age 18 whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his or her parent or other person legally responsible for his or her care to exercise a minimum degree of care by misusing a drug or drugs, or by misusing alcoholic beverages to the extent that he or she loses self-control of his or her actions, or by any other acts of a similarly serious nature requiring the aid of the court; provided, however, that where the respondent is voluntarily and regularly participating in a rehabilitative program, evidence that the respondent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he or she loses self-control of his or her actions shall not establish that the child is a neglected child in the absence of evidence establishing that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired.

Current Through August 2014

Making The Appointment

Citation: Family Court Act § 1016The court shall appoint an attorney to represent a child who has been allegedly abused or neglected upon the earliest occurrence of any of the following:

• The court receiving notice of the emergency removal of the child
• An application for an order for removal of the child prior to the filing of a petition
• The filing of a petition alleging abuse or neglect

The Use of Court-Appointed Special Advocates (CASAs)

Citation:This issue is not addressed in the statutes reviewed.

Qualifications/Training

Citation: Family Court Act § 242The term ‘attorney for the child’ refers to an attorney admitted to practice law in the State of New York who has been designated to represent a minor.

Specific Duties

Citation: Family Court Act §§ 1016; 1075; NY Ct. Rules § 7.2Whenever an attorney has been appointed by the family court to represent a child, the appointment shall continue without further court order or appointment during an order of disposition issued by the court directing supervision, protection, or suspending judgment, or any extension thereof; an adjournment in contemplation of dismissal; or the pendency of the foster care placement. All notices and reports required by law shall be provided to the attorney for the child. Such appointment shall terminate upon the expiration of the order, unless another appointment of an attorney has been made by the court or unless the attorney makes application to the court to be relieved of his or her appointment. Upon approval of an application to be relieved, the court shall immediately appoint another attorney for the child to whom all notices and reports required by law shall be provided.

In addition to all other duties and responsibilities necessary to the representation of a child, an attorney for the child shall upon receipt of a report from a child protective agency, review the information contained therein and make a determination as to whether there is reasonable cause to suspect that the child is at risk of further abuse or neglect or that there has been a substantive violation of a court order. When the attorney makes such a determination, he or she shall apply to the court for appropriate relief. Nothing contained in this section shall relieve a child protective agency or social services official of its duties pursuant to this act or the social services law.

In court rules: In proceedings in which the child is the subject, the attorney must zealously advocate for the child’s position. The attorney must ascertain the child’s position by consulting with the child in a manner consistent with the child’s capacities, and by gaining a thorough knowledge of the child’s circumstances. If the child is capable of knowing, voluntary, and considered judgment, the attorney for the child should be directed by the wishes of the child, even if this conflicts with the attorney’s belief that what the child wants is not in the child’s best interests. The attorney should fully explain the options available to the child, and may recommend a course of action that in the attorney’s view would best promote the child’s interests.

When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary, and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child’s wishes. In these circumstances, the attorney for the child must inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position.

How the Representative Is Compensated

Citation: Family Court Act § 1016An attorney for the child shall be entitled to compensation pursuant to applicable provisions of law for services rendered up to and including disposition of the petition. The attorney shall, by separate application, be entitled to compensation for services rendered subsequent to the disposition of the petition.

Current Through April 2014

When Case Plans Are Required

Citation: Soc. Serv. Laws § 409-eUpon completion of any assessment of a family’s needs and circumstances, and no later than 30 days after a child is removed from his or her home or is placed in foster care, the local social services district shall establish or update and maintain a family service plan based on an assessment of the family’s needs and circumstances.

Who May Participate in the Case Planning Process

Citation: Soc. Serv. Laws § 409-e; N.Y. Reg. Tit. 18, § 428.3The family service plan shall be prepared in consultation with the child’s parent or guardian, unless such person is unavailable or unwilling to participate or such participation would be harmful to the child; with the child if the child is age 10 or older; and, when appropriate, with the child’s siblings. Such consultation shall be done in person, unless such a meeting is impracticable or would be harmful to the child. If it is impracticable to hold such consultation in person, such consultation may be done through the use of technology, including but not limited to, videoconferencing and teleconference technology. If the parent is incarcerated or residing in a residential drug treatment facility, the plan shall reflect the special circumstances and needs of the child and the family.

In regulation: Each family assessment and service plan must document the involvement of or the efforts to involve the parent or guardian in the development of the plan, as well as the involvement of or efforts to involve children age 10 or older, when appropriate, including children in foster care and their siblings or half-siblings and children placed by a court in the direct custody of a relative or other suitable person. Such efforts must include, but are not limited to:

• Encouraging the parents or guardian and the children to participate in the development and review of the plan and attempting to obtain the parents’ or guardian’s signatures documenting their review of the plan
• When the parents or guardian and/or children are not able to participate and arrangements cannot be made to allow participation, conveying the contents of the service plan and any recommendations to them, and attempting to obtain the parents’ or guardian’s comments and signatures documenting their review of the plan

Contents of a Case Plan

Soc. Serv. Laws § 409-e; N.Y. Reg. Tit. 18, § 428.6The plan shall include at least the following:

• Timeframes for periodic reassessment of the care and maintenance needs of each child and the manner in which such reassessments are to be accomplished
• Short-term, intermediate, and long-term goals for the child and family and actions planned to meet the needs of the child and family and each goal
• Identification of necessary and appropriate services and assistance to the child and members of the child’s family
• Any alternative plans for services where specific services are not available, and any viable options for services considered during the planning process
• Where placement in foster care is determined necessary, specification of the reasons for such determination, the kind and level of placement, any available placement alternatives, an estimate of the anticipated duration of placement, and plan for termination of services under appropriate circumstances

In regulation: Each family service plan must include, but is not limited to, the following:

• A program choice or choices for each child receiving services
• A goal and plan for child permanency
• A description of legal activities and their impact on the case
• A thorough and comprehensive assessment or reassessment and analysis of the family members’ strengths, needs, and problems
• Immediate actions or controlling interventions that must be taken or have been provided
• The family’s view of its needs and concerns
• A plan of services and assistance made in consultation with the family and each child over age 10, whenever possible, that utilizes the family’s strengths and addresses the family members’ needs and concern
• The status of the service plan including service availability and a description of the manner of service provision
• The family’s progress toward plan achievement
• Essential data relating to the identification and history of the child and family members and a summary that documents the involvement of the parent(s) or guardian, child(ren) and any others in the development of the service plan
• Safety assessments in all cases
• Risk assessments in child protective services cases
• Assessments of family functioning

For children placed in foster care, the plan also must include:

• A description of the reasonable efforts made to prevent or eliminate the need for placement or the justification for the determination that reasonable efforts were not necessary
• Identification of all available placement alternatives and the specific reasons why they were rejected
• Efforts made to locate any absent parents
• Documentation that continuity in the child’s environment has been maintained or the reasons why this is not practicable or in the best interests of the child
• Information about whether the child will be placed with the child’s siblings and, if not, the reasons why and the arrangements made for contact with the siblings
• An estimate of the anticipated duration of the placement and the circumstances and conditions that must be met to safely discharge the child from placement
• A visiting plan for the child with his or her parent(s), guardian, siblings, and other significant family members
• A description of the reasons identified for not filing a petition to terminate parental rights for any child in foster care for at least 15 of the most recent 22 months
• Where concurrent planning is determined through assessment to be warranted in the case, a description of the alternate plan to achieve permanency for the child if the child cannot be safely returned home

Current Through November 2012

Citation: N.Y. Reg. Tit. 18, § 428.9 (LexisNexis through 11-16-12)A case consultation must be held for each child in preparation for each permanency hearing, including in those cases where the permanency hearing will constitute the service plan review. The purpose of such case consultation is to assist with the development of the permanency hearing report. The issues addressed in the report shall include the following:

• A review of the reasonable efforts made to assist with the achievement of the child’s permanency planning goal
• An assessment of the need for modification or continuation of the current permanency planning goal
• For a child who is not free for adoption, a review of the status of the concurrent permanency plan for the child, in the event the child is unlikely to be able to return home safely

Citation: N.Y. Reg. Tit. 18, § 428.6(a)(1) (LexisNexis through 11-16-12)When the family assessment determines that concurrent planning is warranted, the family assessment and service plan must include a description of the alternate plan to achieve permanency for the child if the child cannot be returned home safely.

Current Through January 2016

Schedule of Hearings

Citation: Fam. Crt. Act § 1089For a child in foster care:

• The initial permanency hearing shall be commenced no later than 6 months from the date that is 60 days after the child was removed from his or her home.
• Subsequent permanency hearings for a child who remains in foster care shall be commenced no later than 6 months from the completion of the previous permanency hearing.

After a child has been freed for adoption, permanency hearings shall be held:

• No later than 30 days after the hearing at which the child was freed
• No later than 6 months from the completion of the previous permanency hearing

For a former foster youth who has returned to foster care, a permanency hearing shall be held no later than 30 days after the youth has returned to foster care.

Persons Entitled to Attend Hearings

Citation: Fam. Crt. Act § 1089Notice of permanency hearings shall be provided to:

• The child’s parent, including any nonrespondent parent, unless the parent’s rights have been terminated
• The foster parent in whose home the child currently resides
• Any other person legally responsible for the child’s care
• The agency supervising the care of the child
• The child’s attorney and the attorney for the respondent parent
• The child if he or she is age 10 or older
• Any preadoptive parent or relative providing care for the child
• A former foster parent, if any, in whose home the child previously had resided for a continuous period of 12 months in foster care

The child’s parent, person legally responsible for the child’s care, and the current foster parent shall be parties to the proceeding. A preadoptive parent, relative, or former foster parent, on the basis of such notice, shall have an opportunity to be heard but shall not be a party to the permanency hearing.

The child has a right to be present at the hearing, except upon a waiver of that right after consultation with the attorney for the child. Upon an application by the child’s attorney, the court shall grant an adjournment whenever necessary to protect the child’s right to meaningfully participate in the hearing.

Determinations Made at Hearings

Citation: Fam. Crt. Act § 1089The court shall review the permanency hearing report that shall include, but need not be limited to, up-to-date and accurate information regarding:

• The child’s current permanency goal
• The health, well-being, and status of the child since the last hearing
• The child’s current placement
• The educational and other progress the child has made since the last hearing
• The visitation plan for the child
• For a child who is age 16 who elects not to participate in an educational program leading to a high school diploma, the steps that the local social services district has taken to assist the child to become gainfully employed or enrolled in a vocational program
• For a child who is age 14 or older, the services and assistance that are being provided to enable the child to learn independent living skills
• Any other services being provided to the child
• The status of the parent, including:
  • The services that have been offered to the parent to enable the child to return home safely
  • The steps the parent has taken to use the services
  • Any barriers encountered to the delivery of such services
  • The progress the parent has made toward reunification, if applicable
  • Any other steps the parent has taken to comply with and achieve the permanency plan
• The reasonable efforts to achieve the child’s permanency plan that have been taken by the local social services district or agency since the last hearing
• The recommended permanency plan

Permanency Options

Citation: Fam. Crt. Act § 1089The child’s current permanency goal may be:

• Return to the parent or parents
• Placement for adoption with the local social services official filing a petition for termination of parental rights
• Referral for legal guardianship
• Permanent placement with a fit and willing relative
• If the child is age 16 or older, placement in another planned permanent living arrangement, with documentation of:
  • A significant connection to an adult who is willing to be a permanency resource for the child
  • Intensive, ongoing, and unsuccessful efforts to return the child home or secure a permanent placement for the child, including efforts through search technology, including social media, to find the child’s biological family members
  • The steps being taken to ensure that the child’s foster family home is following the reasonable and prudent parent standard, and the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities
  • The compelling reasons for determining that it continues to not be in the best interests of the child to be returned home or placed in another permanent home

Current Through March 2016

Citation: Soc. Serv. Law § 358-a(3)(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 concerns.

Citation: Soc. Serv. Law § 384-b(1)The legislature recognizes that the health and safety of children are of paramount importance. To the extent it is consistent with the health and safety of the child, the legislature further finds that:

• 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.
• 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 his or her birth parent, and that parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered.
• The State’s first obligation is to help the family with services to prevent its breakup or to reunite it if the child has already left home.
• 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.

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. Provision of a timely procedure for the termination of the rights of the birth parents, in appropriate cases, could reduce such unnecessary stays.

It is the intent of the legislature 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.

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Soc. Serv. Law §§ 358-a; 384-bAn order terminating parental rights shall be granted only upon a finding that one or more of the grounds specified below are based upon clear and convincing proof:

• The parent has abandoned the child for 6 months immediately prior to the date on which the petition is filed in the court.
• The parent is presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for the child.
• The child is a permanently neglected child.
• The parent severely or repeatedly abused such child.

When a court determines that reasonable efforts to reunite the child with his or her parent are not required, a petition to terminate parental rights may be filed immediately. Reasonable efforts shall not be required when:

• The parent has subjected the child to aggravated circumstances, as defined below.
• The parent of such child has been convicted of:
  • Murder or voluntary manslaughter and the victim was another child of the parent
  • The attempt to commit any of the above crimes
  • Assault or aggravated assault upon a person less than age 11 that resulted in serious physical injury to the child or another child of the parent
• The parent has failed for 6 months to keep the agency apprised of his or her location.
• An incarcerated parent has failed on more than one occasion to cooperate with efforts to assist the parent to plan for the future of the child or to plan and arrange visits with the child.
• The parental rights of the parent to a sibling of the child have been involuntarily terminated.

‘Aggravated circumstances’ means:

• A child has been either severely or repeatedly abused.
• A child has subsequently been found to be an abused child within 5 years after returning home following placement in foster care as a result of being found to be a neglected child.
• The parent of a child in foster care has refused and has failed completely, over a period of at least 6 months from the date of removal, to engage in services necessary to eliminate the risk of abuse or neglect.

Circumstances That Are Exceptions to Termination of Parental Rights

Citation: Soc. Serv. Law § 384-bWhen the child has been in foster care for 15 of the most recent 22 months, has been determined to be an abandoned child, or the parent has been convicted of one of the crimes listed above, a petition to terminate the parent’s rights shall be filed unless:

• The child is being cared for by a relative or relatives.
• The agency has documented in the most recent case plan a compelling reason for determining that the filing of a petition would not be in the best interests of the child.
• 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.
• The parent or parents are incarcerated or participating in a residential substance abuse treatment program, or the prior incarceration 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 15 of the last 22 months, provided that the parent maintains a meaningful role in the child’s life, and the agency has not documented a reason why it would otherwise be appropriate to file a petition pursuant to this section.

For the purposes of this section, a compelling reason why a petition for termination of parental rights is not required may include, but is not limited to:

• The child was placed into foster care, and a review of the specific facts and circumstances of the child’s placement demonstrates that the appropriate permanency goal for the child is either a return to his or her parent or guardian or discharge to independent living.
• The child has a permanency goal other than adoption.
• The child is age 14 or older and will not consent to his or her adoption.
• There are insufficient grounds for filing a petition to terminate parental rights.
• The child is the subject of a pending disposition.

Circumstances Allowing Reinstatement of Parental Rights

Citation: Fam. Court Act §§ 635; 636; 637A petition to restore parental rights may be filed when the following conditions are met:

• The order terminating parental rights was issued 2 or more years prior to the date of filing of the petition.
• The termination was based upon grounds enumerated § 384-b(4)(b), (c) or (d) of the social services law.
• The petitioners consent to the relief requested in the petition or that they withheld consent without good cause.
• The child is age 14 or older, remains under the jurisdiction of the family court, has not been adopted, does not have a permanency goal of adoption, and consents to the relief requested in the petition.

The petitioner shall have the burden of proof by clear and convincing evidence that restoration of parental rights is in the child’s best interests. The court may make the following orders of disposition:

• The court may grant the petition and transfer guardianship and custody of the child to the birth parent or parents.
• The court may dismiss the petition, in which case custody of the child with the authorized agency or individual would continue and a permanency hearing would be required to be held as scheduled.
• The court may grant the petition conditionally for a designated period of up to 6 months, during which time guardianship and custody of the child shall remain with the local social services district or authorized agency while the child may visit with, or be placed on a trial discharge with, the birth parent or parents. The court shall direct the district or agency to supervise the child’s birth parent or parents, develop a reunification plan, and provide appropriate transitional services to the child and birth parent or parents.

Current Through December 2014

Definitions

Citation: Soc. Serv. Law § 458-aThe term ‘prospective relative guardian’ means a person who is related to the child through blood, marriage, or adoption and who has been caring for the child as a fully certified or approved foster parent for at least 6 consecutive months prior to applying for kinship guardianship assistance payments.

The term ‘relative guardian’ means a person who was appointed as a guardian or permanent guardian for a child after entering into an agreement with a social services official for the receipt of payments and services in accordance with this title.

Purpose of Guardianship

Citation: Fam. Crt. Act § 1089-aIn determining whether the best interests of the child will be promoted by the granting of guardianship of the child to a relative who has cared for the child as a foster parent, the court shall give due consideration to the permanency goal of the child, the relationship between the child and the relative, whether the relative and the local Department of Social Services have entered into an agreement to provide kinship guardianship assistance payments for the child to the relative, and, if so, whether a fact-finding hearing pursuant to § 1051 of this chapter has occurred, and whether compelling reasons exist for determining that the return home of the child and the adoption of the child are not in the best interests of the child and are, therefore, not appropriate permanency options.

A Guardian’s Rights and Responsibilities

Citation: Fam. Crt. Act § 661The permanent guardian of a child shall have the right and responsibility to make decisions, including issuing any necessary consents regarding the child’s protection, education, care, and control, health and medical needs, and the physical custody of the person of the child, and may consent to the adoption of the child.

Qualifying the Guardian

Citation: Soc. Serv. Law § 458-bA prospective relative guardian and any person age 18 or older living in the home of the prospective relative guardian who has not already been subject to a national and State criminal history record check as part of the process of the prospective relative guardian becoming a certified or approved foster parent must complete such a record check upon application for guardianship.

The social services official must inquire of the Office of Children and Family Services whether each prospective relative guardian and each person age 18 or older living in the home of the prospective relative guardian has been or is currently the subject of an indicated report of child abuse or maltreatment on file with the statewide central register of child abuse and maltreatment. If the prospective relative guardian or any other person older than age 18 residing in the home of the prospective relative guardian resided in another State in the 5 years preceding the application, a request must be made for child abuse and maltreatment information maintained by the child abuse and maltreatment registry from the applicable child welfare agency in each State of previous residence if such a request has not been made as part of the process of the prospective relative guardian becoming a certified or approved foster parent.

Procedures for Establishing Guardianship

Citation: Fam. Crt. Act §§ 661; 1089-aWhen the permanency goal for a foster child is referral for legal guardianship, a petition shall be filed with the court by a fit and willing relative or other suitable person. The court presiding over the proceeding may consolidate the hearing of the guardianship petition with the dispositional hearing or permanency hearing, as applicable.

The court may issue an order of guardianship in response to a petition filed by a relative or suitable person seeking guardianship of the child if:

• The court finds that granting guardianship of the child to the relative or suitable person is in the best interests of the child and that the termination of the order placing the child in out-of-home care will not jeopardize the safety of the child.
• The court finds that granting guardianship of the child to the relative or suitable person will provide the child with a safe and permanent home.
• The parents, the attorney for the child, the local department, and the person of the child who has been the foster parent for the child for 1 year or more consent to the guardianship.

The court shall hold age-appropriate consultation with the child. If the youth has reached age 14, the court shall ascertain his or her preference for a suitable guardian. Notwithstanding any other section of law, when the youth is older than age 18, he or she shall consent to the appointment of a suitable guardian.

Contents of a Guardianship Order

Citation: Fam. Crt. Act § 1089-aAn order made in accordance with the provisions of this section shall set forth the required findings as described above. Notwithstanding any other provision of law, the court shall not issue an order of supervision nor may the court require the local department to provide services to the petitioner when granting guardianship.

Any order entered pursuant to this section shall conclude the court’s jurisdiction over the proceeding, and the court shall not maintain jurisdiction over the proceeding for further permanency hearings.

Modification/Revocation of Guardianship

Citation: Fam. Crt. Act § 1089-aAs part of the order granting custody or guardianship to the relative or suitable person, the court may require that the local department of social services and the attorney for the child receive notice of, and be made parties to, any subsequent proceeding to modify the order of custody or guardianship. If, however, the guardian and the local department have entered into an agreement to provide kinship guardianship assistance payments for the child, the order must require that the local department and the attorney for the child receive notice of, and be made parties to, any such subsequent proceeding involving custody or guardianship of the child.

Eligibility for Guardianship Subsidy

Citation: Soc. Serv. Law § 458-bNote: This provision shall not take effect until an amendment to the New York Title IV-E State Plan to establish a guardianship assistance program is approved by the U.S. Department of Health and Human Services.

A child is eligible for kinship guardianship assistance payments if the social services official determines the following:

• The child has been in foster care in the home of the prospective relative guardian for at least 6 consecutive months.
• Return home or adoption are not appropriate permanency options for the child.
• The child demonstrates a strong attachment to the prospective relative guardian, and the prospective relative guardian has a strong commitment to caring permanently for the child.
• Age-appropriate consultation has been held with the child:
  • With respect to a child who is age 14 or older, the child has been consulted regarding the kinship guardianship arrangement.
  • With respect to a child who is age 18 or older, the child has consented to the kinship guardianship arrangement.

The financial status of the prospective relative guardian shall not be considered in determining eligibility for kinship guardianship assistance payments.

A prospective relative guardian who has been caring for an eligible foster child for at least 6 consecutive months and who intends to seek guardianship of the child may apply to the social services official who has custody of the child to receive kinship guardianship assistance payments, nonrecurring guardianship payments, and other applicable services and payments on behalf of the child. Applications shall only be accepted prior to issuance of letters of guardianship of the child to the relative guardian.

Links to Agency Policies

New York State Office of Children and Family Services: Know Your Options: Relatives Caring for Children (PDF – 312 KB)

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Citation: Fam. Ct. Act §§ 1017; 1055-bWhen the court determines that a child must be removed from his or her home, the court shall direct the local commissioner of social services to conduct an immediate investigation to locate any nonrespondent parent of the child and any relatives of the child, including all of the child’s grandparents, all suitable relatives identified by any respondent parent or any nonrespondent parent, and any relative identified by a child over age 5 as a relative who plays or has played a significant and positive role in his or her life. The commissioner shall inform the relatives of the pendency of the proceeding and of the opportunity for becoming foster parents or for seeking custody or care of the child.

At the conclusion of the dispositional hearing, the court may grant custody or guardianship of the child to a relative or other suitable person if:

• The relative or suitable person has filed a petition for custody or guardianship of the child.
• The court finds that granting custody or guardianship of the child to the relative or suitable person is in the best interests of the child and that the safety of the child will not be jeopardized if the respondent or respondents under the child protective proceeding are no longer under supervision or receiving services.
• The court finds that granting custody or guardianship of the child to the relative or suitable person will provide the child with a safe and permanent home.

Requirements for Placement with Relatives

Citation: Fam. Ct. Act § 1028-aUpon application of a relative to become a foster parent of a child, the court shall hold a hearing to determine whether the child should be placed with the relative. The hearing shall be held only if:

• The relative is related within the third degree of consanguinity to either parent.
• The child has been temporarily removed from his or her home and placed in nonrelative foster care.
• The relative indicates a willingness to become the foster parent of the child and has not refused previously to be considered as a foster parent or custodian of the child; however, an inability to provide immediate care for the child due to a lack of resources or inadequate housing, educational, or other arrangements necessary to care appropriately for the child shall not constitute a previous refusal.
• The local social services district has refused to place the child with the relative for reasons other than the relative’s failure to qualify as a foster parent pursuant to the regulations of the Office of Children and Family Services.
• The application is brought within 6 months from the date the relative received notice that the child was being removed or had been removed from his or her home and no later than 12 months from the date that the child was removed.

The court shall give due consideration to such application and make the determination as to whether the child should be placed in foster care with the relative based on the best interests of the child.

After the hearing, if the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services to commence an investigation of the home of the relative within 24 hours and thereafter expedite approval or certification of the relative, if qualified, as a foster parent. No child, however, shall be placed with a relative prior to final approval or certification of the relative as a foster parent.

Requirements for Placement of Siblings

Citation: Fam. Ct. Act § 1027-aWhen a social services official removes a child from his or her home, such official shall place the child with his or her minor siblings or half-siblings who have been or are being remanded to or placed in the care and custody of the official unless, in the judgment of the official, such placement is contrary to the best interests of the children. Placement with siblings or half-siblings shall be presumptively in the child’s best interests, unless such placement would be contrary to the child’s health, safety, or welfare. If such placement is not immediately available at the time of the removal of the child, such official shall provide or arrange for the provision of such placement within 30 days.

Relatives Who May Adopt

Citation: Soc. Serv. Law §§ 383; 383-c
Upon acceptance of a judicial surrender or approval of an extrajudicial surrender, the court shall inquire whether any foster parent or parents with whom the child resides, any relative of the child, or other person seeks to adopt the child.

Any adult husband and his adult wife and any adult unmarried person who, as foster parent or parents, have cared for a child continuously for a period of 12 months or more may apply to an authorized agency for the placement of the child with them for the purpose of adoption. If the child is eligible for adoption, the agency shall give preference and first consideration to their application over all other applications for adoption placements.

Requirements for Adoption by Relatives

Citation: Soc. Serv. Law §§ 383; 383-cFinal determination of the propriety of an adoption of a foster child by a foster parent or relative shall be within the sole discretion of the court.

If a foster parent, relative, or other person seeks to adopt the child, such person may submit, and the court shall accept, all petitions for the adoption of the child, together with an adoption home study, if any, completed by an authorized agency or disinterested person. 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.

Current Through March 2016

What Are Reasonable Efforts

Citation: Soc. Serv. Law § 384-b(7)(f)The term ‘diligent efforts’ means reasonable attempts by an agency to assist, develop, and encourage a meaningful relationship between the parent and child, which include but are not limited to:

• Consulting and cooperating with the parents to develop a plan for appropriate services
• Making suitable arrangements for the parent to visit with the child
• Providing services and other assistance so that problems preventing the child’s discharge from care can be resolved
• Informing the parents of the child’s progress, development, and health
• Making suitable arrangements with a correctional facility for an incarcerated parent to visit with the child, if such visiting is in the best interests of the child

When Reasonable Efforts Are Required

Citation: Soc. Serv. Law § 358-a(3)(a)Reasonable efforts must be made:

• Prior to placement to prevent or eliminate the need for removal of the child from the home
• To make it possible for the child to return home
• If the permanent plan for the child is other than reunification, to make and finalize the alternative permanent placement

When Reasonable Efforts Are NOT Required

Citation: Soc. Serv. Law §§ 358-a(3)(b); 384-b(7)(e)Reasonable efforts are not required when the court determines that:

• The parent has subjected the child to aggravated circumstances, where the child has been either severely or repeatedly abused.
• The parent has been convicted of murder or manslaughter, and the victim was another child of the parent. However, the parent must have acted voluntarily in committing such crime.
• The parent has been convicted of an attempt to commit any of the above crimes, and the victim or intended victim was the child or another child of the parent; or has been convicted of conspiring, soliciting, or facilitating any of the above crimes, and the victim or intended victim was the child or another child of the parent.
• The parent has been convicted of assault or aggravated assault upon a person younger than age 11, and the crime resulted in serious physical injury to the child or another child of the parent.
• The parental rights of the parent to a sibling of the child have been involuntarily terminated.

Evidence of diligent efforts by an agency to encourage and strengthen the parental relationship shall not be required when:

• The parent has failed for a period of 6 months to keep the agency apprised of his or her location.
• An incarcerated parent has failed on more than one occasion while incarcerated to cooperate with an authorized agency in its efforts to help the parent plan for the future of the child or in the agency’s efforts to plan and arrange visits with the child.

Current Through February 2015

Who Can Nominate a Standby Guardian

Citation: Surrogate’s Crt. Proc. Act § 1726A parent, legal guardian, or legal custodian may petition for the appointment of a standby guardian. The child’s primary caretaker may petition when the parent, guardian, or custodian cannot be located.

How to Establish a Standby Guardian

Citation: Surrogate’s Crt. Proc. Act §§ 1726; 1706The petition must state:

• Whether the authority of the standby guardian is to become effective upon the petitioner’s incapacity, death, or consent, whichever occurs first
• That the petitioner suffers from either a progressively chronic illness or an irreversibly fatal illness, and the basis for such statement, such as the date and source of a medical diagnosis, without requiring the identification of the illness in question

If the court finds that the petitioner suffers from a progressively chronic illness or an irreversibly fatal illness and that the interests of the child will be promoted by the appointment of a standby guardian, it must make a decree accordingly.

A standby guardian may also be designated by a written designation, signed by the parent in the presence of two witnesses. An optional designation form is provided in the statute.

The court will consider the preference of a child who is age 14 or older. If the youth is older than age 18, he or she shall consent to the appointment of a suitable guardian.

How Standby Authority is Activated

Citation: Surrogate’s Crt. Proc. Act § 1726The standby guardian’s authority commences upon receipt of a determination of the parent’s incapacity, certificate of the parent’s death, or the parent’s written consent. An attending physician must document the parent’s incapacity.

A guardian by judicial decree has 90 days to file confirming documents. A guardian by written designation has 60 days to file confirming documents and petition for appointment.

Involvement of the Noncustodial Parent

Citation: Surrogate’s Crt. Proc. Act § 1705
Notice of hearing is required to any parent living in a known residence in New York, unless the parent has abandoned the child, is deprived of civil rights, divorced from the custodial parent, incompetent, or otherwise judicially deprived of custody of the child.

Authority Relationship of the Parent and the Standby

Citation: Surrogate’s Crt. Proc. Act § 1726The commencement of the standby guardian’s authority due to incapacity, debilitation, or consent shall not divest the parent of any parental rights, but shall confer upon the standby guardian concurrent authority with respect to the child.

Withdrawing Guardianship

Citation: Surrogate’s Crt. Proc. Act § 1726The petitioner may revoke a standby guardianship created by judicial appointment by executing a written revocation, filing it with the court that issued the decree, and promptly notifying the standby guardian of the revocation.

A judicially appointed standby guardian may at any time before the commencement of his or her authority renounce the appointment by executing a written renunciation and filing it with the court that issued the decree, and promptly notifying the petitioner of the revocation.

The parent may revoke a standby guardianship created by written designation:

• By executing a subsequent designation of guardianship by petition to the court
• In the case of a standby guardian whose authority becomes effective upon the death of the parent, by a subsequent designation of standby guardian set forth in a will of the parent
• By notifying the standby guardian verbally or in writing or by any other act evidencing a specific intent to revoke the standby guardianship prior to the filing of a petition