N.Y. Family Court Act § 1095: Fact finding and disposition

§ 1095. Fact finding and disposition. (a) No fact finding hearing may

commence under this article unless the court enters a finding that all

parties are present at the hearing and have been served with a copy of

the petition, provided however, that if any party is or are living but

are not present, that the court may proceed if every reasonable effort

has been made to effect service under subdivision (d) of section one

thousand ninety-three of this article.

(b) The court shall sustain the petition and make a finding that a

child is destitute if, based upon a preponderance of competent, material

and relevant evidence presented, the court finds that the child meets

the definition of a destitute child as described in subdivision (a) of

section one thousand ninety-two of this article. If the proof does not

conform to the specific allegations of the petition, the court may amend

the allegations to conform to the proof if no party objects to such

conformation.

(c) If the court finds that the child does not meet such definition of

a destitute child or that the aid of the court is not required, the

court shall dismiss the petition, and if applicable, return a child who

was placed in the temporary care of the commissioner of social services

to any parent, caretaker or interested adult; provided, however, that if

the court finds that the child may be in need of protection under

article ten of this act, the court may request the commissioner of

social services to conduct a child protective investigation in

accordance with subdivision one of section one thousand thirty-four of

this act. The court shall state the grounds for any finding under this

subdivision.

(d) If the court sustains the petition pursuant to subdivision (b) of

this section, it may immediately convene a dispositional hearing or may

adjourn the proceeding for further inquiries to be made prior to

disposition provided however, that if a petition pursuant to article six

of this act has been filed by a person or persons seeking custody or

guardianship of the child, or if a petition pursuant to article

seventeen of the surrogate's court procedure act seeking guardianship of

the child has been filed, the court shall consolidate the dispositional

hearing with a hearing under section one thousand ninety-six of this

article, unless consolidation would not be appropriate under the

circumstances. If the court does not consolidate such dispositional

proceedings it shall hold the dispositional hearing under this section

in abeyance pending the disposition of the petition filed pursuant to

article six of this act or article seventeen of the surrogate's court

procedure act. Based upon material and relevant evidence presented at

the dispositional hearing, the court shall enter an order of disposition

stating the grounds for its order and directing one of the following

alternatives:

(1) placing the child in the care and custody of the commissioner of

social services; or

(2) granting an order of custody or guardianship to relatives or

suitable persons pursuant to a petition under article six of this act or

guardianship of the child to a relative or suitable person under article

seventeen of the surrogate's court procedure act and in accordance with

section one thousand ninety-six of this article.

(e) If the child has been placed pursuant to paragraph one of

subdivision (d) of this section, the court shall include the following

in its order:

(1) a date certain for the permanency hearing in accordance with

paragraph two of subdivision (a) of section one thousand eighty-nine of

this act;

(2) a description of the plan for the child to visit with his or her

parent or parents unless contrary to the child's best interests;

(3) a direction that the child be placed together with or, at minimum,

to visit and have regular communication with, his or her siblings, if

any, unless contrary to the best interests of the child and/or the

siblings and may incorporate an order issued pursuant to part eight of

article ten of this chapter in accordance with subdivision (f) of this

section;

(4) a direction that the child's parent or parents be notified of any

planning conferences to be held pursuant to subdivision three of section

four hundred nine-e of the social services law, of their right to attend

such conferences and to have counsel or another representative or

companion with them;

(5) if the child is or will be fourteen or older by the date of the

permanency hearing, the services and assistance that may be necessary to

assist the child in learning independent living skills; and

(6) a notice 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.

(f) If the child has been placed pursuant to paragraph one of

subdivision (d) of this section, the provisions of part eight of article

ten of this act shall be applicable.

(g) If the court makes an order pursuant to paragraph one of

subdivision (d) of this section, the court may include a direction for

the commissioner of social services to provide or arrange for services

or assistance, limited to those authorized or required to be made

available under the comprehensive annual services program plan then in

effect, to ameliorate the conditions that formed the basis for the

fact-finding under this section and, if the child has been placed in the

care and custody of the commissioner of social services, to facilitate

the child's permanency plan.