N.Y. Social Services Law § 384-b: Guardianship and custody of destitute or dependent children; commitment by court order; modification of commitment and restoration of par...

§ 384-b. Guardianship and custody of destitute or dependent children;

commitment by court order; modification of commitment and restoration of

parental rights.

1. Statement of legislative findings and intent.

(a) The legislature recognizes that the health and safety of children

is of paramount importance. To the extent it is consistent with the

health and safety of the child, the legislature further hereby finds

that:

(i) 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;

(ii) 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 its birth parent,

and that parents are entitled to bring up their own children unless the

best interests of the child would be thereby endangered;

(iii) the state's first obligation is to help the family with services

to prevent its break-up or to reunite it if the child has already left

home; and

(iv) 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.

(b) 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. The legislature

further finds that provision of a timely procedure for the termination,

in appropriate cases, of the rights of the birth parents could reduce

such unnecessary stays.

It is the intent of the legislature in enacting this section 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.

2. For the purposes of this section, (a) "child" shall mean a person

under the age of eighteen years; and, (b) "parent" shall include an

incarcerated parent unless otherwise qualified.

3. (a) The guardianship of the person and the custody of a destitute

or dependent child may be committed to an authorized agency, or to a

foster parent authorized pursuant to section one thousand eighty-nine of

the family court act to institute a proceeding under this section, or to

a relative with care and custody of the child, by order of a surrogate

or judge of the family court, as hereinafter provided. Where such

guardianship and custody is committed to a foster parent or to a

relative with care and custody of the child, the family court or

surrogate's court shall retain continuing jurisdiction over the parties

and the child and may, upon its own motion or the motion of any party,

revoke, modify or extend its order, if the foster parent or relative

fails to institute a proceeding for the adoption of the child within six

months after the entry of the order committing the guardianship and

custody of the child to such foster parent or relative. Where the foster

parent or relative institutes a proceeding for the adoption of the child

and the adoption petition is finally denied or dismissed, the court

which committed the guardianship and custody of the child to the foster

parent or relative shall revoke the order of commitment. Where the court

revokes an order committing the guardianship and custody of a child to a

foster parent or relative, it shall commit the guardianship and custody

of the child to an authorized agency.

(b) A proceeding under this section may be originated by an authorized

agency or by a foster parent authorized to do so pursuant to section one

thousand eighty-nine of the family court act or by a relative with care

and custody of the child or, if an authorized agency ordered by the

court to originate a proceeding under this section fails to do so within

the time fixed by the court, by the child's attorney or guardian ad

litem on the court's direction.

(c) Where a child was placed or continued in foster care pursuant to

article ten, ten-A or ten-C of the family court act or section three

hundred fifty-eight-a of this chapter, a proceeding under this section

shall be originated in the family court in the county in which the

proceeding pursuant to article ten, ten-A or ten-C of the family court

act or section three hundred fifty-eight-a of this chapter was last

heard and shall be assigned, wherever practicable, to the judge who last

heard such proceeding. Where multiple proceedings are commenced under

this section concerning a child and one or more siblings or

half-siblings of such child, placed or continued in foster care with the

same commissioner pursuant to section one thousand fifty-five, one

thousand eighty-nine or one thousand ninety-five of the family court

act, all of such proceedings may be commenced jointly in the family

court in any county which last heard a proceeding under article ten,

ten-A or ten-C of the family court act regarding any of the children who

are the subjects of the proceedings under this section. In such

instances, the case shall be assigned, wherever practicable, to the

judge who last presided over such proceeding. In any other case, a

proceeding under this section, including a proceeding brought in the

surrogate's court, shall be originated in the county where either of the

parents of the child reside at the time of the filing of the petition,

if known, or, if such residence is not known, in the county in which the

authorized agency has an office for the regular conduct of business or

in which the child resides at the time of the initiation of the

proceeding. To the extent possible, the court shall, when appointing an

attorney for the child, appoint an attorney who has previously

represented the child.

(c-1) Before hearing a petition under this section, the court in which

the termination of parental rights petition has been filed shall

ascertain whether the child is under the jurisdiction of a family court

pursuant to a placement in a child protective or foster care proceeding

or continuation in out-of-home care pursuant to a permanency hearing

and, if so, which court exercised jurisdiction over the most recent

proceeding. If the court determines that the child is under the

jurisdiction of a different family court, the court in which the

termination of parental rights petition was filed shall stay its

proceeding for not more than thirty days and shall communicate with the

court that exercised jurisdiction over the most recent proceeding. The

communication shall be recorded or summarized on the record by the court

in which the termination of parental rights petition was filed. Both

courts shall notify the parties and child's attorney, if any, in their

respective proceedings and shall give them an opportunity to present

facts and legal argument or to participate in the communication prior to

the issuance of a decision on jurisdiction. The court that exercised

jurisdiction over the most recent proceeding shall determine whether it

will accept or decline jurisdiction over the termination of parental

rights petition. This determination of jurisdiction shall be

incorporated into an order regarding jurisdiction that shall be issued

by the court in which the termination of parental rights petition was

filed within thirty days of such filing. If the court that exercised

jurisdiction over the most recent proceeding determines that it should

exercise jurisdiction over the termination of parental rights petition,

the order shall require that the petition shall be transferred to that

court forthwith but in no event more than thirty-five days after the

filing of the petition. The petition shall be assigned, wherever

practicable, to the judge who heard the most recent proceeding. If the

court that exercised jurisdiction over the most recent proceeding

declines to exercise jurisdiction over the adoption petition, the court

in which the termination of parental rights petition was filed shall

issue an order incorporating that determination and shall proceed

forthwith.

(d) The family court shall have exclusive, original jurisdiction over

any proceeding brought upon grounds specified in paragraph (c), (d) or

(e) of subdivision four of this section, and the family court and

surrogate's court shall have concurrent, original jurisdiction over any

proceeding brought upon grounds specified in paragraph (a) or (b) of

subdivision four of this section, except as provided in paragraphs (c)

and (c-1) of this subdivision.

(e) A proceeding under this section is originated by a petition on

notice served upon the child's parent or parents, the attorney for the

child's parent or parents and upon such other persons as the court may

in its discretion prescribe. Such notice shall inform the parents and

such other persons that the proceeding may result in an order freeing

the child for adoption without the consent of or notice to the parents

or such other persons. Such notice also shall inform the parents and

such other persons of their right to the assistance of counsel,

including any right they may have to have counsel assigned by the court

in any case where they are financially unable to obtain counsel. When

the proceeding is initiated in family court service of the petition and

other process shall be made in accordance with the provisions of section

six hundred seventeen of the family court act, and when the proceeding

is initiated in surrogate's court, service shall be made in accordance

with the provisions of section three hundred seven of the surrogate's

court procedure act. When the proceeding is initiated on the grounds of

abandonment of a child less than one year of age at the time of the

transfer of the care and custody of such child to a local social

services official, the court shall take judicial notice of efforts to

locate the child's parents or other known relatives or other persons

legally responsible pursuant to paragraph (ii) of subdivision (b) of

section one thousand fifty-five of the family court act.

(f) In any proceeding under this section in which the surrogate's

court has exercised jurisdiction, the provisions of the surrogate's

court procedure act shall apply to the extent that they do not conflict

with the specific provisions of this section. In any proceeding under

this section in which the family court has exercised jurisdiction, the

provisions of articles one, two and eleven of the family court act shall

apply to the extent that they do not conflict with the specific

provisions of this section. In any proceeding under this section, the

provisions and limitations of article thirty-one of the civil practice

law and rules shall apply to the extent that they do not conflict with

the specific provisions of this section. In determining any motion for a

protective order, the court shall consider the need of the party for the

discovery to assist in the preparation of the case and any potential

harm to the child from the discovery. The court shall set a schedule for

discovery to avoid unnecessary delay. Any proceeding originated in

family court upon the ground specified in paragraph (d) of subdivision

four of this section shall be conducted in accordance with the

provisions of part one of article six of the family court act.

(g) (i) An order committing the guardianship and custody of a child

pursuant to this section shall be granted only upon a finding that one

or more of the grounds specified in subdivision four of this section are

based upon clear and convincing proof.

(ii) Where a proceeding has been properly commenced under this section

by the filing of a petition before the eighteenth birthday of a child,

an order committing the guardianship and custody of a child pursuant to

this section upon a finding under subdivision four of this section shall

be granted after the eighteenth birthday of a child where the child

consents to such disposition.

(h) In any proceeding brought upon a ground set forth in paragraph (c)

of subdivision four, neither the privilege attaching to confidential

communications between husband and wife, as set forth in section

forty-five hundred two of the civil practice law and rules, nor the

physician-patient and related privileges, as set forth in section

forty-five hundred four of the civil practice law and rules, nor the

psychologist-client privilege, as set forth in section forty-five

hundred seven of the civil practice law and rules, nor the social

worker-client privilege, as set forth in section forty-five hundred

eight of the civil practice law and rules, shall be a ground for

excluding evidence which otherwise would be admissible.

(i) In a proceeding instituted by an authorized agency pursuant to the

provisions of this section, proof of the likelihood that the child will

be placed for adoption shall not be required in determining whether the

best interests of the child would be promoted by the commitment of the

guardianship and custody of the child to an authorized agency.

(j) The order and the papers upon which it was granted in a proceeding

under this section shall be filed in the court, and a certified copy of

such order shall also be filed in the office of the county clerk of the

county in which such court is located, there to be recorded and to be

inspected or examined in the same manner as a surrender instrument,

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

chapter.

(k) Where the child is over fourteen years of age, the court may, in

its discretion, consider the wishes of the child in determining whether

the best interests of the child would be promoted by the commitment of

the guardianship and custody of the child.

(l) (i) Notwithstanding any other law to the contrary, whenever: the

child shall have been in foster care for fifteen months of the most

recent twenty-two months; or a court of competent jurisdiction has

determined the child to be an abandoned child; or the parent has been

convicted of a crime as set forth in subdivision eight of this section,

the authorized agency having care of the child shall file a petition

pursuant to this section unless based on a case by case determination:

(A) the child is being cared for by a relative or relatives; or (B) the

agency has documented in the most recent case plan, a copy of which has

been made available to the court, a compelling reason for determining

that the filing of a petition would not be in the best interest of the

child; or (C) 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; or (D) the parent or parents are incarcerated, in immigration

detention or immigration removal proceedings, or participating in a

residential substance abuse treatment program, or the prior

incarceration, immigration detention or immigration removal proceedings,

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 fifteen of the last twenty-two months, provided that the

parent maintains a meaningful role in the child's life based on the

criteria set forth in subparagraph (v) of this paragraph and the agency

has not documented a reason why it would otherwise be appropriate to

file a petition pursuant to this section.

(ii) For the purposes of this section, a compelling reason whereby a

social services official is not required to file a petition for

termination of parental rights in accordance with subparagraph (i) of

this paragraph includes, but is not limited to, where:

(A) the child was placed into foster care pursuant to article three or

seven of the family court act and a review of the specific facts and

circumstances of the child's placement demonstrate that the appropriate

permanency goal for the child is either (1) return to his or her parent

or guardian or (2) discharge to independent living;

(B) the child has a permanency goal other than adoption;

(C) the child is fourteen years of age or older and will not consent

to his or her adoption;

(D) there are insufficient grounds for filing a petition to terminate

parental rights; or

(E) the child is the subject of a pending disposition under article

ten of the family court act, except where such child is already in the

custody of the commissioner of social services as a result of a

proceeding other than the pending article ten proceeding, and a review

of the specific facts and circumstances of the child's placement

demonstrate that the appropriate permanency goal for the child is

discharge to his or her parent or guardian.

(iii) For the purposes of this paragraph, the date of the child's

entry into foster care is the earlier of sixty days after the date on

which the child was removed from the home or the date the child was

found by a court to be an abused or neglected child pursuant to article

ten of the family court act.

(iv) In the event that the social services official or authorized

agency having care and custody of the child fails to file a petition to

terminate parental rights within sixty days of the time required by this

section, or within ninety days of a court direction to file a proceeding

not otherwise required by this section, such proceeding may be filed by

the foster parent of the child without further court order or by the

attorney for the child on the direction of the court. In the event of

such filing the social services official or authorized agency having

care and custody of the child shall be served with notice of the

proceeding and shall join the petition.

(v) For the purposes of clause (D) of subparagraph (i) of this

paragraph, an assessment of whether a parent maintains a meaningful role

in his or her child's life shall be based on evidence, which may include

the following: a parent's expressions or acts manifesting concern for

the child, such as letters, telephone calls, visits, and other forms of

communication with the child; efforts by the parent to communicate and

work with the authorized agency, attorney for the child, foster parent,

the court, and the parent's attorney or other individuals providing

services to the parent, including correctional, mental health and

substance abuse treatment program personnel for the purpose of complying

with the service plan and repairing, maintaining or building the

parent-child relationship; a positive response by the parent to the

authorized agency's diligent efforts as defined in paragraph (f) of

subdivision seven of this section; and whether the continued involvement

of the parent in the child's life is in the child's best interest. In

assessing whether a parent maintains a meaningful role in his or her

child's life, the authorized agency shall gather input from individuals

and agencies in a reasonable position to help make this assessment,

including but not limited to, the authorized agency, attorney for the

child, parent, child, foster parent or other individuals of importance

in the child's life, and parent's attorney or other individuals

providing services to the parent, including correctional, mental health

and substance abuse treatment program personnel. The court may make an

order directing the authorized agency to undertake further steps to aid

in completing its assessment.

4. An order committing the guardianship and custody of a child

pursuant to this section shall be granted only upon one or more of the

following grounds:

(a) Both parents of the child are dead, and no guardian of the person

of such child has been lawfully appointed; or

(b) The parent or parents, whose consent to the adoption of the child

would otherwise be required in accordance with section one hundred

eleven of the domestic relations law, abandoned such child for the

period of six months immediately prior to the date on which the petition

is filed in the court; or

(c) The parent or parents, whose consent to the adoption of the child

would otherwise be required in accordance with section one hundred

eleven of the domestic relations law, are presently and for the

foreseeable future unable, by reason of mental illness or intellectual

disability, to provide proper and adequate care for a child who has been

in the care of an authorized agency for the period of one year

immediately prior to the date on which the petition is filed in the

court; or

(d) The child is a permanently neglected child; or

(e) The parent or parents, whose consent to the adoption of the child

would otherwise be required in accordance with section one hundred

eleven of the domestic relations law, severely or repeatedly abused such

child. Where a court has determined that reasonable efforts to reunite

the child with his or her parent are not required, pursuant to the

family court act or this chapter, a petition to terminate parental

rights on the ground of severe abuse as set forth in subparagraph (iii)

of paragraph (a) of subdivision eight of this section may be filed

immediately upon such determination.

5. (a) For the purposes of this section, a child is "abandoned" by his

parent if such parent evinces an intent to forego 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.

(b) The subjective intent of the parent, whether expressed or

otherwise, unsupported by evidence of the foregoing parental acts

manifesting such intent, shall not preclude a determination that such

parent has abandoned his or her child. In making such determination, the

court shall not require a showing of diligent efforts, if any, by an

authorized agency to encourage the parent to perform the acts specified

in paragraph (a) of this subdivision.

6. (a) For the purposes of this section, "mental illness" means an

affliction with a mental disease or mental condition which is manifested

by a disorder or disturbance in behavior, feeling, thinking or judgment

to such an extent that if such child were placed in or returned to the

custody of the parent, the child would be in danger of becoming a

neglected child as defined in the family court act.

(b) For the purposes of this section, "intellectual disability" means

subaverage intellectual functioning which originates during the

developmental period and is associated with impairment in adaptive

behavior to such an extent that if such child were placed in or returned

to the custody of the parent, the child would be in danger of becoming a

neglected child as defined in the family court act; provided, however,

that case law regarding use of the phrase "mental retardation" under

this section shall be applicable to the term "intellectual disability".

(c) The legal sufficiency of the proof in a proceeding upon the ground

set forth in paragraph (c) of subdivision four of this section shall not

be determined until the judge has taken the testimony of a psychologist,

or psychiatrist, in accordance with paragraph (e) of this subdivision.

(d) A determination or order upon a ground set forth in paragraph (c)

of subdivision four shall in no way affect any other right, or

constitute an adjudication of the legal status of the parent.

(e) In every proceeding upon a ground set forth in paragraph (c) of

subdivision four the judge shall order the parent to be examined by, and

shall take the testimony of, a qualified psychiatrist or a psychologist

licensed pursuant to article one hundred fifty-three of the education

law as defined in section 730.10 of the criminal procedure law in the

case of a parent alleged to be mentally ill or retarded, such

psychologist or psychiatrist to be appointed by the court pursuant to

section thirty-five of the judiciary law. The parent and the authorized

agency shall have the right to submit other psychiatric, psychological

or medical evidence. If the parent refuses to submit to such

court-ordered examination, or if the parent renders himself unavailable

therefor whether before or after the initiation of a proceeding under

this section, by departing from the state or by concealing himself

therein, the appointed psychologist or psychiatrist, upon the basis of

other available information, including, but not limited to, agency,

hospital or clinic records, may testify without an examination of such

parent, provided that such other information affords a reasonable basis

for his opinion.

7. (a) For the purposes of this section, "permanently neglected

child" shall mean a child who is in the care of an authorized agency and

whose parent or custodian has failed for a period of either at least one

year or fifteen out of the most recent twenty-two months following the

date such child came into the care of an authorized agency substantially

and continuously or repeatedly to maintain contact with or plan for the

future of the child, although physically and financially able to do so,

notwithstanding the agency's diligent efforts to encourage and

strengthen the parental relationship when such efforts will not be

detrimental to the best interests of the child. The court shall consider

the special circumstances of an incarcerated parent or parents, or of a

parent or parents participating in a residential substance abuse

treatment program, when determining whether a child is a "permanently

neglected child" as defined in this paragraph. In such cases, the court

also shall consider the particular constraints, including but not

limited to, limitations placed on family contact and the unavailability

of social or rehabilitative services to aid in the development of a

meaningful relationship between the parent and his or her child, that

may impact the parent's ability to substantially and continuously or

repeatedly maintain contact with his or her child and to plan for the

future of his or her child as defined in paragraph (c) of this

subdivision. Where a court has previously determined in accordance with

paragraph (b) of subdivision three of section three hundred

fifty-eight-a of this chapter or section one thousand thirty-nine-b,

subparagraph (A) of paragraph (i) of subdivision (b) of section one

thousand fifty-two, paragraph (b) of subdivision two of section seven

hundred fifty-four or paragraph (c) of subdivision two of section 352.2

of the family court act that reasonable efforts to make it possible for

the child to return safely to his or her home are not required, the

agency shall not be required to demonstrate diligent efforts as defined

in this section. In the event that the parent defaults after due notice

of a proceeding to determine such neglect, such physical and financial

ability of such parent may be presumed by the court.

(b) For the purposes of paragraph (a) of this subdivision, evidence of

insubstantial or infrequent contacts by a parent with his or her child

shall not, of itself, be sufficient as a matter of law to preclude a

determination that such child is a permanently neglected child. A visit

or communication by a parent with the child which is of such character

as to overtly demonstrate a lack of affectionate and concerned

parenthood shall not be deemed a substantial contact.

(c) As used in paragraph (a) of this subdivision, "to plan for the

future of the child" shall mean to take such steps as may be necessary

to provide an adequate, stable home and parental care for the child

within a period of time which is reasonable under the financial

circumstances available to the parent. The plan must be realistic and

feasible, and good faith effort shall not, of itself, be determinative.

In determining whether a parent has planned for the future of the child,

the court may consider the failure of the parent to utilize medical,

psychiatric, psychological and other social and rehabilitative services

and material resources made available to such parent.

(d) For the purposes of this subdivision:

(i) A parent shall not be deemed unable to maintain contact with or

plan for the future of the child by reason of such parent's use of drugs

or alcohol, except while the parent is actually hospitalized or

institutionalized therefor; and

(ii) The time during which a parent is actually hospitalized or

institutionalized shall not interrupt, but shall not be part of, a

period of failure to maintain contact with or plan for the future of a

child.

(e) Notwithstanding the provisions of paragraph (a) of this

subdivision, evidence of diligent efforts by an agency to encourage and

strengthen the parental relationship shall not be required when:

(i) The parent has failed for a period of six months to keep the

agency apprised of his or her location, provided that the court may

consider the particular delays or barriers an incarcerated parent or

parents, or a parent or parents participating in a residential substance

abuse treatment program, may experience in keeping the agency apprised

of his or her location; or

(ii) An incarcerated parent has failed on more than one occasion while

incarcerated to cooperate with an authorized agency in its efforts to

assist such parent to plan for the future of the child, as such phrase

is defined in paragraph (c) of this subdivision, or in such agency's

efforts to plan and arrange visits with the child as described in

subparagraph five of paragraph (f) of this subdivision.

(f) As used in this subdivision, "diligent efforts" shall mean

reasonable attempts by an authorized agency to assist, develop and

encourage a meaningful relationship between the parent and child,

including but not limited to:

(1) consultation and cooperation with the parents in developing a plan

for appropriate services to the child and his family;

(2) making suitable arrangements for the parents to visit the child

except that with respect to an incarcerated parent, arrangements for the

incarcerated parent to visit the child outside the correctional facility

shall not be required unless reasonably feasible and in the best

interest of the child;

(3) provision of services and other assistance to the parents, except

incarcerated parents, so that problems preventing the discharge of the

child from care may be resolved or ameliorated;

(4) informing the parents at appropriate intervals of the child's

progress, development and health;

(5) making suitable arrangements with a correctional facility and

other appropriate persons for an incarcerated parent to visit the child

within the correctional facility, if such visiting is in the best

interests of the child. When no visitation between child and

incarcerated parent has been arranged for or permitted by the authorized

agency because such visitation is determined not to be in the best

interest of the child, then no permanent neglect proceeding under this

subdivision shall be initiated on the basis of the lack of such

visitation. Such arrangements shall include, but shall not be limited

to, the transportation of the child to the correctional facility, and

providing or suggesting social or rehabilitative services to resolve or

correct the problems other than incarceration itself which impair the

incarcerated parent's ability to maintain contact with the child. When

the parent is incarcerated in a correctional facility located outside

the state, the provisions of this subparagraph shall be construed to

require that an authorized agency make such arrangements with the

correctional facility only if reasonably feasible and permissible in

accordance with the laws and regulations applicable to such facility;

and

(6) providing information which the authorized agency shall obtain

from the office of children and family services, outlining the legal

rights and obligations of a parent who is incarcerated or in a

residential substance abuse treatment program whose child is in custody

of an authorized agency, and on social or rehabilitative services

available in the community, including family visiting services, to aid

in the development of a meaningful relationship between the parent and

child. Wherever possible, such information shall include transitional

and family support services located in the community to which an

incarcerated parent or parent participating in a residential substance

abuse treatment program shall return.

8. (a) For the purposes of this section a child is "severely abused"

by his or her parent if (i) the child has been found to be an abused

child as a result of reckless or intentional acts of the parent

committed under circumstances evincing a depraved indifference to human

life, which result in serious physical injury to the child as defined in

subdivision ten of section 10.00 of the penal law; or

(ii) the child has been found to be an abused child, as defined in

paragraph (iii) of subdivision (e) of section ten hundred twelve of the

family court act, as a result of such parent's acts; provided, however,

the respondent must have committed or knowingly allowed to be committed

a felony sex offense as defined in sections 130.25, 130.30, 130.35,

former sections 130.40, 130.45, 130.50, sections 130.65, 130.67, 130.70,

130.75, 130.80, 130.95 and 130.96 of the penal law and, for the purposes

of this section the corroboration requirements contained in the penal

law shall not apply to proceedings under this section; or

(iii) (A) the parent of such child has been convicted of murder in the

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

as defined in section 125.25, manslaughter in the first degree as

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

defined in section 125.15, and the victim of any such crime was another

child of the parent or another child for whose care such parent is or

has been legally responsible as defined in subdivision (g) of section

one thousand twelve of the family court act, or another parent of the

child, unless the convicted parent was a victim of physical, sexual or

psychological abuse by the decedent parent and such abuse was a factor

in causing the homicide; or 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 another child for whose care

such parent is or has been legally responsible as defined in subdivision

(g) of section one thousand twelve of the family court act, or another

parent of the child, unless the convicted parent was a victim of

physical, sexual or psychological abuse by the decedent parent and such

abuse was a factor in causing the attempted homicide; (B) the parent of

such child 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 or another child for whose care such parent

is or has been legally responsible; (C) 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 victim of any such crime was

the child or another child of the parent or another child for whose care

such parent is or has been legally responsible; or 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 another

child for whose care such parent is or has been legally responsible; or

(D) the parent of such child has been convicted under the law in any

other jurisdiction of an offense which includes all of the essential

elements of any crime specified in clause (A), (B) or (C) of this

subparagraph; and

(iv) the agency has made diligent efforts to encourage and strengthen

the parental relationship, including efforts to rehabilitate the

respondent, when such efforts will not be detrimental to the best

interests of the child, and such efforts have been unsuccessful and are

unlikely to be successful in the foreseeable future. Where a court has

previously determined in accordance with this chapter or the family

court act that reasonable efforts to make it possible for the child to

return safely to his or her home are not required, the agency shall not

be required to demonstrate diligent efforts as set forth in this

section.

(b) For the purposes of this section a child is "repeatedly abused" by

his or her parent if:

(i) the child has been found to be an abused child, (A) as defined in

paragraph (i) of subdivision (e) of section ten hundred twelve of the

family court act, as a result of such parent's acts; or (B) as defined

in paragraph (iii) of subdivision (e) of section ten hundred twelve of

the family court act, as a result of such parent's acts; provided,

however, the respondent must have committed or knowingly allowed to be

committed a felony sex offense as defined in sections 130.25, 130.30,

130.35, former sections 130.40, 130.45, 130.50, sections 130.65, 130.67,

130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law; and

(ii) (A) the child or another child for whose care such parent is or

has been legally responsible has been previously found, within the five

years immediately preceding the initiation of the proceeding in which

such abuse is found, to be an abused child, as defined in paragraph (i)

or (iii) of subdivision (e) of section ten hundred twelve of the family

court act, as a result of such parent's acts; provided, however, in the

case of a finding of abuse as defined in paragraph (iii) of subdivision

(e) of section ten hundred twelve of the family court act the respondent

must have committed or knowingly allowed to be committed a felony sex

offense as defined in sections 130.25, 130.30, 130.35, former sections

130.40, 130.45, 130.50, sections 130.65, 130.67, 130.70, 130.75 and

130.80 of the penal law, or (B) the parent has been convicted of a crime

under section 130.25, 130.30, 130.35, former sections 130.40, 130.45,

130.50, sections 130.65, 130.67, 130.70, 130.75 or 130.80 of the penal

law against the child, a sibling of the child or another child for whose

care such parent is or has been legally responsible, within the five

year period immediately preceding the initiation of the proceeding in

which abuse is found; and

(iii) the agency has made diligent efforts, to encourage and

strengthen the parental relationship, including efforts to rehabilitate

the respondent, when such efforts will not be detrimental to the best

interests of the child, and such efforts have been unsuccessful and are

unlikely to be successful in the foreseeable future. Where a court has

previously determined in accordance with this chapter or the family

court act that reasonable efforts to make it possible for the child to

return safely to his or her home are not required, the agency shall not

be required to demonstrate diligent efforts as set forth in this

section.

(c) Notwithstanding any other provision of law, the requirements of

paragraph (g) of subdivision three of this section shall be satisfied if

one of the findings of abuse pursuant to subparagraph (i) or (ii) of

paragraph (b) of this subdivision is found to be based on clear and

convincing evidence.

(d) A determination by the court in accordance with article ten of the

family court act based upon clear and convincing evidence that the child

was a severely abused child as defined in subparagraphs (i) and (ii) of

paragraph (a) of this subdivision shall establish that the child was a

severely abused child in accordance with this section. Such a

determination by the court in accordance with article ten of the family

court act based upon a fair preponderance of evidence shall be

admissible in any proceeding commenced in accordance with this section.

(e) A determination by the court in accordance with article ten of the

family court act based upon clear and convincing evidence that a child

was abused (A) as defined in paragraph (i) of subdivision (e) of section

ten hundred twelve of the family court act, as a result of such parent's

acts; or (B) as defined in paragraph (iii) of subdivision (e) of section

ten hundred twelve of the family court act, as a result of such parent's

acts; provided, however, the respondent must have committed or knowingly

allowed to be committed a felony sex offense as defined in sections

130.25, 130.30, 130.35, former sections 130.40, 130.45, 130.50, sections

130.65, 130.67, 130.70, 130.75 and 130.80 of the penal law shall

establish that the child was an abused child for the purpose of a

determination as required by subparagraph (i) or (ii) of paragraph (b)

of this subdivision. Such a determination by the court in accordance

with article ten of the family court act based upon a fair preponderance

of evidence shall be admissible in any proceeding commenced in

accordance with this section.

(f) Upon a finding pursuant to paragraph (a) or (b) of this

subdivision that the child has been severely or repeatedly abused by his

or her parent, the court shall enter an order of disposition either (i)

committing the guardianship and custody of the child, pursuant to this

section, or (ii) suspending judgment in accordance with section six

hundred thirty-three of the family court act, upon a further finding,

based on clear and convincing, competent, material and relevant evidence

introduced in a dispositional hearing, that the best interests of the

child require such commitment or suspension of judgment. Where the

disposition ordered is the commitment of guardianship and custody

pursuant to this section, an initial freed child permanency hearing

shall be completed pursuant to section one thousand eighty-nine of the

family court act.

9. Nothing in this section shall be construed to terminate, upon

commitment of the guardianship and custody of a child to an authorized

agency or foster parent, any rights and benefits, including but not

limited to rights relating to contact with siblings, inheritance,

succession, social security, insurance and wrongful death action claims,

possessed by or available to the child pursuant to any other provision

of law. For purposes of this section, "siblings" shall include

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

but for the termination of parental rights or death of a parent.

Notwithstanding any other provision of law, a child committed to the

custody and guardianship of an authorized agency pursuant to this

section shall be deemed to continue in foster care until such time as an

adoption or another planned permanent living arrangement is finalized.

Where the disposition ordered is the commitment of guardianship and

custody pursuant to this section, an initial freed child permanency

hearing shall be held pursuant to section one thousand eighty-nine of

the family court act.

10. Upon the court's order transferring custody and guardianship to

the commissioner, the attorney for the petitioning authorized agency

shall promptly serve upon the persons who have been approved by such

agency as the child's adoptive parents, notice of entry of such order

and advise such persons that an adoption proceeding may be commenced. In

accordance with the regulations of the department, the authorized agency

shall advise such persons of the procedures necessary for adoption of

the child. The authorized agency shall cooperate with such persons in

the provision of necessary documentation.

11. Upon the entry of an order committing the guardianship and custody

of a child pursuant to this section, the court shall inquire whether any

foster parent or parents with whom the child resides, or any relative of

the child, or other person, seeks to adopt such child. If such person or

persons do seek to adopt such child, such person or persons may submit,

and the court shall accept, all such petitions for the adoption of the

child, together with an adoption home study, if any, completed by an

authorized agency or disinterested person as such term is defined in

subdivision three of section one hundred sixteen of the domestic

relations law. 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.

13. A petition to modify a disposition of commitment of guardianship

and custody in order to restore parental rights may be brought in

accordance with part one-A of article six of the family court act where

the conditions enumerated in section six hundred thirty-five of such

part have been met.