N.Y. Family Court Act § 1022: Preliminary orders of court before petition filed

§ 1022. Preliminary orders of court before petition filed. (a) (i) The

family court may enter an order directing the temporary removal of a

child from the place where he or she is residing before the filing of a

petition under this article, if (A) the parent or other person legally

responsible for the child's care is absent or, though present, was asked

and refused to consent to the temporary removal of the child and was

informed of an intent to apply for an order under this section and of

the information required by section one thousand twenty-three of this

part; and

(B) the child appears so to suffer from the abuse or neglect of his or

her parent or other person legally responsible for his or her care that

his or her immediate removal is necessary to avoid imminent danger to

the child's life or health; and

(C) there is not enough time to file a petition and hold a preliminary

hearing under section one thousand twenty-seven of this part.

(ii) When a child protective agency applies to a court for the

immediate removal of a child pursuant to this subdivision, the court

shall calendar the matter for that day and shall continue the matter on

successive subsequent court days, if necessary, until a decision is made

by the court.

(iii) In determining whether temporary removal of the child is

necessary to avoid imminent risk to the child's life or health, the

court shall consider and determine in its order whether continuation in

the child's home would be contrary to the best interests of the child

and where appropriate, whether reasonable efforts were made prior to the

date of application for the order directing such temporary removal to

prevent or eliminate the need for removal of the child from the home. If

the court determines that reasonable efforts to prevent or eliminate the

need for removal of the child from the home were not made but that the

lack of such efforts was appropriate under the circumstances, the court

order shall include such a finding.

(iv) If the court determines that reasonable efforts to prevent or

eliminate the need for removal of the child from the home were not made

but that such efforts were appropriate under the circumstances, the

court shall order the child protective agency to provide or arrange for

the provision of appropriate services or assistance to the child and the

child's family pursuant to section one thousand fifteen-a of this

article or subdivision (c) of this section.

(v) The court shall also consider and determine whether imminent risk

to the child would be eliminated by the issuance of a temporary order of

protection, pursuant to section one thousand twenty-nine of this part,

directing the removal of a person or persons from the child's residence.

(vi) Any order directing the temporary removal of a child pursuant to

this section shall state the court's findings with respect to the

necessity of such removal, whether the respondent was present at the

hearing and, if not, what notice the respondent was given of the

hearing, whether the respondent was represented by counsel, and, if not,

whether the respondent waived his or her right to counsel.

(vii) At the conclusion of a hearing where it has been determined that

a child should be removed from his or her parent or other person legally

responsible, the court shall set the date certain for an initial

permanency hearing pursuant to paragraph two of subdivision (a) of

section one thousand eighty-nine of this act. The date certain shall be

included in the written order issued pursuant to subdivision (b) of this

section and shall set forth the date certain scheduled for the

permanency hearing.

(b) Any written order pursuant to this section shall be issued

immediately, but in no event later than the next court day following the

removal of the child. The order shall specify the facility to which the

child is to be brought. Except for good cause shown or unless the child

is sooner returned to the place where he or she was residing, a petition

shall be filed under this article within three court days of the

issuance of the order. The court shall hold a hearing pursuant to

section one thousand twenty-seven of this part no later than the next

court day following the filing of the petition if the respondent was not

present, or was present and unrepresented by counsel, and has not waived

his or her right to counsel, for the hearing pursuant to this section.

(c) The family court, before the filing of a petition under this

article, may enter an order authorizing the provision of services or

assistance, including authorizing a physician or hospital to provide

emergency medical or surgical procedures, if (i) such procedures are

necessary to safeguard the life or health of the child; and

(ii) there is not enough time to file a petition and hold a

preliminary hearing under section one thousand twenty-seven. Where the

court orders a social services official to provide or contract for

services or assistance pursuant to this section, such order shall be

limited to services or assistance authorized or required to be made

available pursuant to the comprehensive annual services program plan

then in effect.

(d) The person removing the child shall, coincident with removal, give

written notice to the parent or other person legally responsible for the

child's care of the right to apply to the family court for the return of

the child pursuant to section one thousand twenty-eight of this act, the

name, title, organization, address and telephone number of the person

removing the child, the name and telephone number of the child care

agency to which the child will be taken, if available, the telephone

number of the person to be contacted for visits with the child, and the

information required by section one thousand twenty-three of this act.

Such notice shall be personally served upon the parent or other person

at the residence of the child provided, that if such person is not

present at the child's residence at the time of removal, a copy of the

notice shall be affixed to the door of such residence and a copy shall

be mailed to such person at his or her last known place of residence

within twenty-four hours after the removal of the child. If the place of

removal is not the child's residence, a copy of the notice shall be

personally served upon the parent or person legally responsible for the

child's care forthwith, or affixed to the door of the child's residence

and mailed to the parent or other person legally responsible for the

child's care at his or her last known place of residence within

twenty-four hours after the removal. The form of the notice shall be

prescribed by the chief administrator of the courts.

(e) Nothing in this section shall be deemed to require that the court

order the temporary removal of a child as a condition of ordering

services or assistance, including emergency medical or surgical

procedures pursuant to subdivision (c) of this section.

(f) The court may issue a temporary order of protection pursuant to

section ten hundred twenty-nine of this article as an alternative to or

in conjunction with any other order or disposition authorized under this

section.