N.Y. Family Court Act § 1094: Initial appearance and preliminary proceedings

§ 1094. Initial appearance and preliminary proceedings. (a) At the

initial appearance, the court shall:

(1) appoint an attorney to represent the child in accordance with

section two hundred forty-nine of this act, and appoint an attorney to

represent a parent, caretaker or interested adult in accordance with

paragraph (ix) of subdivision (a) of section two hundred sixty-two of

this act, if he or she is financially unable to obtain counsel;

(2) (i) if any parent, caretaker or interested adult enters an

appearance, determine whether the child may safely remain in or return

to his or her home and, if appropriate, order services to assist the

family toward that end; provided however, that such order shall not

include the provision of any service or assistance to the child and his

or her family which is not authorized or required to be made available

pursuant to the comprehensive annual services program plan then in

effect;

(ii) determine whether temporary care is necessary to avoid risk to

the child's life or health and whether it would be contrary to the

welfare of the child to continue in, or return to his or her own home,

and, if so, whether the child should be placed in the temporary care and

custody of a relative or other suitable person or in the temporary care

and custody of the commissioner of social services;

(iii) upon a determination that the child should be temporarily

placed:

(A) direct the petitioner to investigate whether there are any

parents, caretakers or interested adults not named in the petition or

any other relatives or other suitable persons with whom the child may

safely reside and, if so, direct the child to reside temporarily in

their care; and

(B) if a relative or other suitable person seeks approval to care for

the child as a foster parent, direct the petitioner to commence an

investigation into the home of such relative and thereafter approve such

relative or other suitable person, if qualified, as a foster parent;

provided, however, that if such home is found to be unqualified for

approval, the petitioner shall report such fact to the court forthwith

and, in the case of a relative who seeks approval to care for the child

as a foster parent, the relative may proceed in accordance with section

one thousand twenty-eight-a of this act.

(3) set a date certain for the fact finding and disposition hearing

pursuant to section one thousand ninety-five of this article and, if the

child is temporarily placed, set a date certain for the initial

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

section one thousand eighty-nine of this act. The date certain for the

initial permanency hearing shall be no later than eight months from the

date the social services official accepted care of the child;

(4) determine whether reasonable efforts were made prior to the

placement of the child into foster care to prevent or eliminate the need

for removal of the child from his or her home, and if such efforts were

not made whether the lack of such efforts were appropriate under the

circumstances; determine, where appropriate, if reasonable efforts were

made to make it possible for the child to remain in or return safely

home; and

(5) include the findings made pursuant to paragraphs one through four

of this subdivision in a written order.

(b) (1) Any parent or caretaker, or interested adult from whose care

the child has been removed, or the child's attorney may request a

hearing to determine whether a child who has been removed from his or

her home should be returned and, if so, whether services should be

ordered to facilitate such return; provided however, that such order

shall not include the provision of any service or assistance to the

child and his or her family which is not authorized or required to be

made available pursuant to the comprehensive annual services program

plan then in effect. Except for good cause shown, the hearing shall be

held within three court days of the request and shall not be adjourned.

The court shall grant the application for return of the child unless it

finds that the return presents an imminent risk to the child's life or

health. If imminent risk to the child is found, the court may make

orders in accordance with paragraph two of subdivision (a) of this

section, including, but not limited to, directions for investigations of

relatives or other suitable persons with whom the child may safely

reside.

(2) 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

the hearing to prevent or eliminate the need for removal of the child

from the home and where appropriate, whether reasonable efforts were

made after removal of the child to make it possible for the child to

safely return home.

(3) 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 and the

basis for such finding.

(4) If the court determines that reasonable efforts to allow a child

to safely return home were not made subsequent to the removal of the

child but that the lack of such efforts was appropriate under the

circumstances, the court order shall include such a finding and the

basis for such finding.

(c) (1) The court may upon its own motion or the motion of any person,

deem a person not named in the petition who has a significant connection

to the child alleged to be destitute, a party to the proceeding, if such

person consents to being added as a party, and such action is

appropriate under the circumstances.

(2) If the court deems a person a party pursuant to paragraph (i) of

this subdivision and such person is not before the court, the court

shall cause a copy of the petition and a summons requiring such person

to appear in court on the return date be served on such person in

accordance with subdivision (d) of section one thousand ninety-three of

this article.

(d) The court may, if it deems appropriate, appoint counsel for an

interested adult or another person named as a party to the proceeding

pursuant to subdivision (c) of this section, if such adult or person is

financially unable to obtain counsel.