N.Y. Social Services Law § 358-a: Dependent children in foster care

§ 358-a. Dependent children in foster care. (1) Initiation of judicial

proceeding. (a) A social services official who accepts or proposes to

accept the custody and guardianship of a child by means of an instrument

executed pursuant to the provisions of section three hundred eighty-four

of this chapter, or the care and custody of a child as a public charge

by means of an instrument executed pursuant to the provisions of section

three hundred eighty-four-a of this chapter, shall determine whether

such child is likely to remain in the care of such official for a period

in excess of thirty consecutive days. If such official determines that

the child is likely to remain in care for a period in excess of thirty

consecutive days, such official shall petition the family court judge of

the county or city in which the social services official has his or her

office, to approve such instrument upon a determination that the

placement of the child is in the best interest of the child, that it

would be contrary to the welfare of the child to continue in his or her

own home and, that where appropriate, 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 that prior to

the initiation of the court proceeding required to be held by this

subdivision, reasonable efforts were made to make it possible for the

child to return safely home. In the case of a child whose care and

custody have been transferred to a social services official by means of

an instrument executed pursuant to the provisions of section three

hundred eighty-four-a of this chapter, approval of the instrument shall

only be made upon an additional determination that all of the

requirements of such section have been satisfied.

* (b) The social services official shall initiate the proceeding by

filing the petition as soon as practicable, but in no event later than

thirty days following removal of the child from the home provided,

however, that the court shall receive, hear and determine petitions

filed later than thirty days following removal of the child from his or

her home, but state reimbursement shall not be available to the social

services district for care and maintenance provided to such child. The

social services official shall diligently pursue such proceeding. Where

the care and custody of a child as a public charge has been transferred

to a social services official by means of an instrument executed

pursuant to the provisions of section three hundred eighty-four-a of

this chapter for a period of thirty days or less for an indeterminate

period which such official deems unlikely to exceed thirty days, and

thereafter such official determines that such child will remain in his

or her care and custody for a period in excess of thirty days, such

official shall, as soon as practicable but in no event later than thirty

days following such determination, execute with the child's parent,

parents or guardian a new instrument pursuant to the provision of

section three hundred eighty-four or three hundred eighty-four-a of this

chapter and shall file a petition in family court, pursuant to this

section, for approval of such instrument. In such cases involving a

social services official, expenditures for the care and maintenance of

such child from the date of the initial transfer of his care and custody

to the social services official shall be subject to state reimbursement.

* NB Effective until June 30, 2027

* (b) The social services official shall initiate the proceeding by

filing the petition as soon as practicable, but in no event later than

thirty days following removal of the child from the home provided,

however, that the court shall receive, hear and determine petitions

filed later than thirty days following removal of the child from his or

her home, but state reimbursement to the social services district for

care and maintenance provided to such child shall be denied pursuant to

section one hundred fifty-three-d of this chapter. The social services

official shall diligently pursue such proceeding. Where the care and

custody of a child as a public charge has been transferred to a social

services official by means of an instrument executed pursuant to the

provisions of section three hundred eighty-four-a of this chapter for a

period of thirty days or less for an indeterminate period which such

official deems unlikely to exceed thirty days, and thereafter such

official determines that such child will remain in his or her care and

custody for a period in excess of thirty days, such official shall, as

soon as practicable but in no event later than thirty days following

such determination, execute with the child's parent, parents or guardian

a new instrument pursuant to the provision of section three hundred

eighty-four or three hundred eighty-four-a of this chapter and shall

file a petition in family court, pursuant to this section, for approval

of such instrument. In such cases involving a social services official,

expenditures for the care and maintenance of such child from the date of

the initial transfer of his care and custody to the social services

official shall be subject to state reimbursement, notwithstanding the

provisions of section one hundred fifty-three-d of this chapter.

* NB Effective June 30, 2027

(2) Contents of petition. (a) Any petition required or authorized

pursuant to subdivision one of this section shall allege whether the

parent, parents or guardian executed the instrument because the parent,

parents or guardian would be unable to make adequate provision for the

care, maintenance and supervision of such child in his or their own

home, and shall include facts supporting the petition. The petition

shall contain a notice in conspicuous print providing 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. The petition shall also set forth the names and last

known addresses of all persons required to be given notice of the

proceeding, pursuant to this section and section three hundred

eighty-four-c of this chapter, and there shall be shown by the petition

or by affidavit or other proof satisfactory to the court that there are

no persons other than those set forth in the petition who are entitled

to notice pursuant to the provisions of this section or of section three

hundred eighty-four-c of this chapter. The petition shall also set forth

the efforts which 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 the efforts which were made prior to the filing

of the petition to make it possible for the child to return safely home.

If such efforts were not made, the petition shall set forth the reasons

why these efforts were not made. The petition shall request that,

pending any hearing which may be required by the family court judge, a

temporary order be made transferring the care and custody of the child

to the social services official in accordance with the provisions of

subdivision three of this section. In the case of a child whose care and

custody have been transferred to a social services official by means of

an instrument executed pursuant to section three hundred eighty-four-a

of this chapter, the petition shall also allege and there shall be shown

by affidavit or other proof satisfactory to the court that all the

requirements of such section have been satisfied, including the results

of the investigation to locate relatives of the child, including any

non-respondent parent and all of the child's grandparents. Such results

shall include whether any relative who has been located expressed an

interest in becoming a foster parent for the child or in seeking custody

or care of the child.

(b) The social services official who initiated the proceeding shall

file supplemental information with the clerk of the court not later than

ten days prior to the date on which the proceeding is first heard by the

court. Such information shall include relevant portions, as determined

by the department, of the assessment of the child and his family

circumstances performed and maintained, and the family's service plan if

available, pursuant to sections four hundred nine-e and four hundred

nine-f of this chapter. Copies of such supplemental information need not

be served upon those persons entitled to notice of the proceeding and a

copy of the petition pursuant to subdivision four of this section.

(2-a) Continuing jurisdiction. (a) The court shall possess continuing

jurisdiction over the parties until the child is discharged from

placement and all orders regarding supervision, protection or services

have expired.

(b) The court, upon approving an instrument under this section, shall

schedule a permanency hearing pursuant to article ten-A of the family

court act for a date certain not more than eight months after the

placement of the child into foster care. Such date certain shall be

included in the order approving the instrument.

(c) (i) Subject to the provisions of subparagraph (ii) of this

paragraph, the court shall also maintain jurisdiction over a case for

the purposes of hearing and deciding a motion brought by a former foster

care youth, as defined in article ten-B of the family court act, or by a

young adult who left foster care upon or after attaining the age of

twenty-one, for contempt pursuant to section seven hundred fifty-three

of the judiciary law against a social services district and/or social

services official, as defined by section two of this chapter. In

addition to any other defense, it shall be an affirmative defense to a

motion filed in accordance with this paragraph that compliance with the

court order was not possible due solely to the youth's refusal to

consent to continuation of foster care placement where such refusal is

documented in a signed, notarized letter executed by the youth after

consultation with their attorney for the child.

(ii) The court shall maintain jurisdiction over a motion described in

subparagraph (i) of this paragraph if such motion is filed before the

former foster care youth or young adult attains the age of twenty-three.

The court's jurisdiction over any such motion shall continue until such

motion and any related appeals are finally resolved.

(iii) If the youth is eligible to return to foster care pursuant to

the provisions of article ten-B of the family court act, upon the

consent of the youth, the court may convert a motion brought under this

paragraph to a motion to return the youth to foster care.

(3) Disposition of petition. (a) If the court is satisfied that the

parent, parents or guardian executed such instrument knowingly and

voluntarily and because he or she would be unable to make adequate

provision for the care, maintenance and supervision of such child in his

or her home, and that the requirements of section three hundred

eighty-four-a of this chapter, if applicable, have been satisfied and

that where appropriate, 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 that prior to the

initiation of the court proceeding required to be held by subdivision

one of this section, reasonable efforts were made to make it possible

for the child to return safely to his or her home, the court may find

and determine that the best interests and welfare of the child would be

promoted by removal of the child from such home, and that it would be

contrary to the welfare of such child for the child to continue in such

home, and the court shall thereupon grant the petition and approve such

instrument and the transfer of the custody and guardianship or care and

custody of such child to such social services official in accordance

therewith. If the court determines that, where appropriate, 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, that prior to the initiation of the court proceeding

reasonable efforts were made to make it possible for the child to return

safely to his or her home, or that it would be contrary to the best

interests of the child to continue in the home, or 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 findings.

Approval of such instrument in a proceeding pursuant to this section

shall not constitute a remand or commitment pursuant to this chapter and

shall not preclude challenge in any other proceeding to the validity of

the instrument. If the permanency plan for the child is adoption,

guardianship, permanent placement with a fit and willing relative or

another planned permanent living arrangement other than reunification

with the parent or parents of the child, the court must consider and

determine in its order whether reasonable efforts are being made to make

and finalize such alternate permanent placement.

(b) For the purpose of this section, reasonable efforts to prevent or

eliminate the need for removing the child from the home of the child or

to make it possible for the child to return safely to the home of the

child shall not be required where the court determines that:

(1) the parent of such child has subjected the child to aggravated

circumstances, as defined in subdivision twelve of this section;

(2) the parent of such child has been convicted of (i) murder in the

first degree as defined in section 125.27 or murder in the second degree

as defined in section 125.25 of the penal law and the victim was another

child of the parent; or (ii) manslaughter in the first degree as defined

in section 125.20 or manslaughter in the second degree as defined in

section 125.15 of the penal law and the victim was another child of the

parent, provided, however, that the parent must have acted voluntarily

in committing such crime;

(3) the parent of such child has been convicted of an attempt to

commit any of the foregoing crimes, and the victim or intended victim

was the child or another child of the parent; or has been convicted of

criminal solicitation as defined in article one hundred, conspiracy as

defined in article one hundred five or criminal facilitation as defined

in article one hundred fifteen of the penal law for conspiring,

soliciting or facilitating any of the foregoing crimes, and the victim

or intended victim was the child or another child of the parent;

(4) the parent of such child has been convicted of assault in the

second degree as defined in section 120.05, assault in the first degree

as defined in section 120.10 or aggravated assault upon a person less

than eleven years old as defined in section 120.12 of the penal law, and

the commission of one of the foregoing crimes resulted in serious

physical injury to the child or another child of the parent;

(5) the parent of such child has been convicted in any other

jurisdiction of an offense which includes all of the essential elements

of any crime specified in subparagraph two, three or four of this

paragraph, and the victim of such offense was the child or another child

of the parent; or

(6) the parental rights of the parent to a sibling of such child have

been involuntarily terminated;

unless the court determines that providing reasonable efforts would be

in the best interests of the child, not contrary to the health and

safety of the child, and would likely result in the reunification of the

parent and the child in the foreseeable future. The court shall state

such findings in its order.

If the court determines that reasonable efforts are not required

because of one of the grounds set forth above, a permanency hearing

shall be held within thirty days of the finding of the court that such

efforts are not required. Such hearing shall be conducted pursuant to

section one thousand eighty-nine of the family court act. The local

social services official shall thereafter make reasonable efforts to

place the child in a timely manner and to complete whatever steps are

necessary to finalize the permanent placement of the child as set forth

in the permanency plan approved by the court. If reasonable efforts are

determined by the court not to be required because of one of the grounds

set forth in this paragraph, the local social services official may file

a petition for termination of parental rights of the parent in

accordance with section three hundred eighty-four-b of this chapter.

(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 concern.

(d) For the purpose of this section, a sibling shall include a

half-sibling.

(e) The order granting the petition of a social services official and

approving an instrument executed pursuant to section three hundred

eighty-four-a of this chapter may include conditions, where appropriate

and specified by the judge, requiring the implementation of a specific

plan of action by the social services official to exercise diligent

efforts toward the discharge of the child from care, either to his own

family or to an adoptive home; provided, however, that such plan 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. An order of placement shall include, at the least:

(i) a description of the visitation plan;

(ii) a direction that the respondent or respondents shall be notified

of the planning conference or conferences to be held pursuant to

subdivision three of section four hundred nine-e of this chapter, of

their right to attend the conference, and of their right to have counsel

or other representative or companion with them;

A copy of the court's order and the service plan shall be given to the

respondent. The order shall also contain a notice that if the child

remains in foster care for more than fifteen of the most recent

twenty-two months, the agency may be required by law to file a petition

to terminate parental rights.

Nothing in such order shall preclude either party to the instrument

from exercising its rights under this section or under any other

provision of law relating to the return of the care and custody of the

child by the social services official to the parent, parents or

guardian. Violation of such on order shall be subject to punishment

pursuant to section seven hundred fifty-three of the judiciary law.

(f) For a child who has attained the age of fourteen, if the court

grants the petition and approves an instrument executed pursuant to

section three hundred eighty-four or three hundred eighty-four-a of this

chapter and the transfer of custody and guardianship or care and custody

of the child to a local social services official the court shall

determine in its order the services and assistance needed to assist the

child in learning independent living skills.

(g) (i) In any case in which an order has been issued pursuant to this

section approving a foster care placement instrument, the social

services official or authorized agency charged with custody or care of

the child shall report the initial placement and any anticipated change

in placement to the court and the attorneys for the parties, including

the attorney for the child, forthwith, but not later than one business

day following either the decision to make the initial placement or to

change the placement or the actual date the initial placement or

placement change occurred, whichever is sooner. Such notice shall

indicate the date that the placement change is anticipated to occur or

the date the placement change occurred, as applicable. Provided,

however, if such notice lists an anticipated date for the initial

placement or placement change, the local social services district or

authorized agency shall subsequently notify the court and attorneys for

the parties, including the attorney for the child, of the date the

placement or placement change occurred; such notice shall occur no later

than one business day following the placement or placement change.

(ii) When a child whose legal custody was transferred to the

commissioner of a local social services district in accordance with this

section resides in a qualified residential treatment program, as defined

in section four hundred nine-h of this chapter, and where such child's

initial placement or change in placement in such program commenced on or

after September twenty-ninth, two thousand twenty-one, upon receipt of

notice required pursuant to subparagraph (i) of this paragraph and

motion of the local social services district, the court shall schedule a

court review to make an assessment and determination of such placement

in accordance with section three hundred ninety-three of this chapter.

Notwithstanding any other provision of law to the contrary, such court

review shall occur no later than sixty days from the date the placement

of the child in the qualified residential treatment program commenced.

(4) Notice. (a) Upon the filing of a petition pursuant to this

section, the family court judge shall direct that service of a notice of

the proceeding and a copy of the petition shall be made upon such

persons and in such manner as the judge may direct. If the instrument

executed by the parent, parents or guardian of a child consents to the

jurisdiction of the family court over such proceeding, and waives

service of the petition and notice of proceeding, then the family court

judge may, in his discretion, dispense with service upon the consenting

parent, parents or guardian, provided, however, that a waiver of service

of process and notice of the proceeding by a parent or guardian who has

transferred the care and custody of a child to an authorized agency,

pursuant to section three hundred eighty-four-a of this chapter, shall

be null and void and shall not be given effect by the court. Notice to

any parent, parents or guardian who has not executed the instrument

shall be required.

(b) In the event the family court judge determines that service by

publication is necessary and orders service by publication, service

shall be made in accordance with the provisions of rule three hundred

sixteen of the civil practice law and rules, provided, however, that a

single publication of the summons or other process with a notice as

specified herein in only one newspaper designated in the order shall be

sufficient. In no event shall the whole petition be published. The

petition shall be delivered to the person summoned at the first court

appearance pursuant to section one hundred fifty-four-a of the family

court act. The notice to be published with the summons or other process

shall state the date, time, place and purpose of the proceeding.

(i) If the petition is initiated to transfer custody and guardianship

of a child by an instrument executed pursuant to the provisions of

section three hundred eighty-four of this chapter, the notice to be

published shall also state that failure to appear may result, without

further notice, in the transfer of custody and guardianship of the child

to a social services official in this proceeding.

(ii) If the petition is initiated to transfer care and custody of a

child by an instrument executed pursuant to the provisions of section

three hundred eighty-four-a of this chapter, the notice to be published

shall also state that failure to appear may result, without further

notice, in the transfer of care and custody of the child to a social

services official in this proceeding.

(5) Hearing and waiver. The instrument may include a consent by the

parent, parents or guardian to waiver of any hearing and that a

determination may be made by the family court judge based solely upon

the petition, and other papers and affidavits, if any, submitted to the

family court judge, provided, however, that a waiver of hearing by a

parent or guardian who has transferred the care and custody of a child

to an authorized agency, pursuant to section three hundred eighty-four-a

of this chapter, shall be effective only if such waiver was executed in

an instrument separate from that transferring the child's care and

custody. In any case where an effective waiver has been executed, the

family court judge may dispense with a hearing, approve the instrument

and the transfer of the custody and guardianship or care and custody of

the child to the social services official and make the requisite

findings and determinations provided for in subdivision three of this

section, if it appears to the satisfaction of the family court judge

that the allegations in the petition are established sufficiently to

warrant the family court judge to grant such petition, to make such

findings and determination, and to issue such order.

In any case where a hearing is required, the family court judge, if

the holding of an immediate hearing on notice is impractical, may

forthwith, upon the basis of the instrument and the allegations of the

petition, make a temporary finding that the parent, parents, or guardian

of the child are unable to make adequate provision for the care,

maintenance and supervision of such child in the child's own home and

that the best interest and welfare of the child will be promoted by the

removal of such child from such home and thereupon, the family court

judge shall make a temporary order transferring the care and custody of

such child to the social services official, and shall set the matter

down for hearing on the first feasible date.

(6) Representation. In any case where a hearing is directed by the

family court judge, he or she shall, pursuant to section two hundred

forty-nine of the family court act, appoint an attorney to represent the

child, who shall be admitted to practice law in the state of New York.

(7) Return of child. If an instrument provides for the return of the

care and custody of a child by the local social services official to the

parent, parents or guardian upon any terms and conditions or at any

time, the local social services official shall comply with such terms of

such instrument without further court order. Every order approving an

instrument providing for the transfer of the care and custody of a child

to a local social services official shall be served upon the parent,

parents or guardian who executed such instrument in such manner as the

family court judge may provide in such order, together with a notice of

the terms and conditions under which the care and custody of such child

may be returned to the parent, parents or guardian. If an instrument

provides for the return of the care and custody of a child by the local

social services official to the parent, parents or guardian without

fixing a definite date for such return, or if the local social services

official shall fail to return a child to the care and custody of the

child's parent, parents or guardian in accordance with the terms of the

instrument, the parent, parents or guardian may seek such care and

custody by motion for return of such child and order to show cause in

such proceeding or by writ of habeas corpus in the supreme court.

Nothing in this subdivision shall limit the requirement for a permanency

hearing pursuant to article ten-A of the family court act.

(8) Appealable orders. Any order of a family court denying any

petition of a local social services official filed pursuant to this

section, or any order of a family court granting or denying any motion

filed by a parent, parents or guardian for return of a child pursuant to

this section, shall be deemed an order of disposition appealable

pursuant to article eleven of the family court act.

(9) Duty of social services official. In the event that a family court

judge denies a petition of a social services official for approval of an

instrument, upon a finding that the welfare of the child would not be

promoted by foster care, such social services official shall not accept

or retain the care and custody as a public charge or custody and

guardianship of such child, provided, however, that the denial by a

family court judge of a petition of a social services official filed

pursuant to this section shall not limit or affect the duty of such

social services official to take such other action or offer such

services as are authorized by law to promote the welfare and best

interests of the child.

(10) Visitation rights; non-custodial parents and grandparents. (a)

Where a social services official incorporates in an instrument

visitation rights set forth in an order, judgment or agreement as

described in paragraph (d) of subdivision two of section three hundred

eighty-four-a of this chapter, such official shall make inquiry of the

state central register of child abuse and maltreatment to determine

whether or not the person having such visitation rights is a subject or

another person named in an indicated report of child abuse or

maltreatment, as such terms are defined in section four hundred twelve

of this chapter, and shall further ascertain, to the extent practicable,

whether or not such person is a respondent in a proceeding under article

ten of the family court act whereby the respondent has been alleged or

adjudicated to have abused or neglected such child.

(b) Where a social services official or the attorney for the child

opposes incorporation of an order, judgment or agreement conferring

visitation rights as provided for in paragraph (e) of subdivision two of

section three hundred eighty-four-a of this chapter, the social services

official or attorney for the child shall apply for an order determining

that the provisions of such order, judgment or agreement should not be

incorporated into the instrument executed pursuant to such section. Such

order shall be granted upon a finding, based on competent, relevant and

material evidence, that the child's life or health would be endangered

by incorporation and enforcement of visitation rights as described in

such order, judgment or agreement. Otherwise, the court shall deny such

application.

(c) Where visitation rights pursuant to an order, judgment or

agreement are incorporated in an instrument, the parties may agree to an

alternative schedule of visitation equivalent to and consistent with the

original or modified visitation order, judgment, or agreement where such

alternative schedule reflects changed circumstances of the parties and

is consistent with the best interests of the child. In the absence of

such an agreement between the parties, the court may, in its discretion,

upon application of any party or the child's attorney, order an

alternative schedule of visitation, as described herein, where it

determines that such schedule is necessary to facilitate visitation and

to protect the best interests of the child.

(d) The order providing an alternative schedule of visitation shall

remain in effect for the length of the placement of the child as

provided for in such instrument unless such order is subsequently

modified by the court for good cause shown. Whenever the court makes an

order denying or modifying visitation rights pursuant to this

subdivision, the instrument described in section three hundred

eighty-four-a of this chapter shall be deemed amended accordingly.

(11) Siblings, placement and visitation. (a) In reviewing any petition

brought under this section, the court shall inquire if the social

services official has arranged for the placement of the child who is the

subject of the petition with any minor siblings or half-siblings who are

placed in care or, if such children have not been placed together,

whether such official has arranged for regular visitation and other

forms of regular communication between such child and such siblings.

(b) If the court determines that the subject child has not been placed

with his or her minor siblings or half-siblings who are in care, or that

regular visitation and other forms of regular communication between the

subject child and his or her minor siblings or half-siblings has not

been provided or arranged for, the court may direct such official to

provide or arrange for such placement or regular visitation and

communication where the court finds that such placement or visitation

and communication is in the child's and his or her siblings' or

half-siblings' best interests. Placement or regular visitation and

communication with siblings or half-siblings shall be presumptively in

the child's and his or her siblings' or half-siblings' best interests

unless such placement or visitation and communication would be contrary

to the child's or his or her siblings' or half-siblings' health, safety

or welfare, or the lack of geographic proximity precludes or prevents

visitation.

(c) If a child placed in foster care pursuant to this section is not

placed together or afforded regular communication with his or her

siblings, the child, through his or her attorney or through a parent on

his or her behalf, may move for an order regarding placement or

communication. The motion shall be served upon: (i) the parent or

parents in the proceeding under this section; (ii) the local social

services official having the care of the child; (iii) other persons

having care, custody and control of the child, if any; (iv) the parents

or other persons having care, custody and control of the siblings to be

visited or with whom contact is sought; (v) such sibling himself or

herself if ten years of age or older; and (vi) such sibling's attorney,

if any. Upon receipt of a motion filed under this paragraph the court

shall determine, after giving notice and an opportunity to be heard to

the persons served, whether visitation and contact would be in the best

interests of the child and his or her siblings. The court may order that

the child be placed together with or have regular communication with his

or her siblings if the court determines it to be in the best interests

of the child and his or her siblings.

(d) For purposes of this section, "siblings" shall include

half-siblings and those who would be deemed siblings or half-siblings

but for the surrender, termination of parental rights or death of a

parent.

(12) For the purposes of this section, aggravated circumstances means

where a child has been either severely or repeatedly abused, as defined

in subdivision eight of section three hundred eighty-four-b of this

chapter; or where a child has subsequently been found to be an abused

child, as defined in paragraph (i) or (iii) of subdivision (e) of

section one thousand twelve of the family court act, within five years

after return home following placement in foster care as a result of

being found to be a neglected child, as defined in subdivision (f) of

section one thousand twelve of the family court act, provided that the

respondent or respondents in each of the foregoing proceedings was the

same; or where the court finds by clear and convincing evidence that the

parent of a child in foster care has refused and has failed completely,

over a period of at least six months from the date of removal, to engage

in services necessary to eliminate the risk of abuse or neglect if

returned to the parent, and has failed to secure services on his or her

own or otherwise adequately prepare for the return home and, after being

informed by the court that such an admission could eliminate the

requirement that the local department of social services provide

reunification services to the parent, the parent has stated in court

under oath that he or she intends to continue to refuse such necessary

services and is unwilling to secure such services independently or

otherwise prepare for the child's return home; provided, however, that

if the court finds that adequate justification exists for the failure to

engage in or secure such services, including but not limited to a lack

of child care, a lack of transportation, and an inability to attend

services that conflict with the parent's work schedule, such failure

shall not constitute an aggravated circumstance; or where a court has

determined a child five days old or younger was abandoned by a parent

with an intent to wholly abandon such child and with the intent that the

child be safe from physical injury and cared for in an appropriate

manner.