N.Y. Social Services Law § 458-b: Kinship guardianship assistance payments

§ 458-b. Kinship guardianship assistance payments. 1. A child is

eligible for kinship guardianship assistance payments under this title

if the social services official determines the following:

(a) The child has been in foster care for at least six consecutive

months in the home of the prospective relative guardian; and

(b) The child being returned home or adopted are not appropriate

permanency options for the child; and

(c) The child demonstrates a strong attachment to the prospective

relative guardian and the prospective relative guardian has a strong

commitment to caring permanently for the child; and

(d) That age appropriate consultation has been held with the child,

provided however with respect to a child who has attained fourteen years

of age, that the child has been consulted regarding the kinship

guardianship arrangement, and with respect to a child who has attained

eighteen years of age, that the child has consented to the kinship

guardianship arrangement.

(e) (i) If the child has been placed into foster care pursuant to

article ten or ten-C of the family court act, that both the fact finding

hearing pursuant to section one thousand fifty-one of the family court

act or section one thousand ninety-five of the family court act,

respectively, and the first permanency hearing pursuant to paragraph two

of subdivision (a) of section one thousand eighty-nine of the family

court act have been completed; or

(ii) for all the other children, that the first permanency hearing has

been completed.

(f) The financial status of the prospective relative guardian shall

not be considered in determining eligibility for kinship guardianship

assistance payments.

1-a. A child shall remain eligible for kinship guardianship assistance

payments under this title when a successor guardian as defined in

subdivision six of section four hundred fifty-eight-a of this title

assumes care and guardianship of the child.

2. (a) A prospective relative guardian who has been caring for an

eligible foster child for at least six consecutive months and who

intends to seek guardianship or permanent guardianship of the child may

apply to the social services official who has custody, care and custody,

or guardianship and custody of the child to receive kinship guardianship

assistance payments, non-recurring guardianship payments, and other

applicable services and payments available under this title on behalf of

the child.

(b) Applications shall only be accepted prior to issuance of letters

of guardianship of the child to the relative guardian pursuant to the

provisions of the family court act or the surrogate's court procedure

act.

(c) Notwithstanding any other provision of law to the contrary, a

prospective relative guardian and any person over the age of eighteen

living in the home of the prospective relative guardian who has not

already been subject to a national and state criminal history record

check pursuant to section three hundred seventy-eight-a of this article

as part of the process of the prospective relative guardian becoming a

certified or approved foster parent must complete such a record check in

accordance with the procedures and standards set forth in such section

prior to the social services official acting upon the application. The

social services official must inquire of the office of children and

family services whether each prospective relative guardian and each

person over the age of eighteen living in the home of the prospective

relative guardian has been or is currently the subject of an indicated

report of child abuse or maltreatment on file with the statewide central

register of child abuse and maltreatment and, if the prospective

relative guardian or any other person over the age of eighteen residing

in the home of the prospective relative guardian resided in another

state in the five years preceding the application, request child abuse

and maltreatment information maintained by the child abuse and

maltreatment registry from the applicable child welfare agency in each

such state of previous residence, if such a request has not been made as

part of the process of the prospective relative guardian becoming a

certified or approved foster parent.

(d) (i) Notwithstanding any other provision of law to the contrary,

prior to the social services official approving a prospective successor

guardian to receive payments pursuant to this title in accordance with

subparagraph (ii) of paragraph (b) of subdivision five of this section:

(1) the social services official must complete a national and state

criminal history record check pursuant to subdivision two of section

three hundred seventy-eight-a of this article for the prospective

successor guardian and any person over the age of eighteen living in the

home of the prospective successor guardian, in accordance with the

procedures and standards set forth in such subdivision; and (2) the

social services official must inquire of the office of children and

family services, in accordance with section four hundred twenty-four-a

of this article, whether each prospective successor guardian and each

person over the age of eighteen living in the home of the prospective

successor guardian has been or is currently the subject of an indicated

report of child abuse or maltreatment on file with the statewide central

register of child abuse and maltreatment and, if the prospective

successor guardian or any other person over the age of eighteen residing

in the home of the prospective successor guardian resided in another

state in the five years preceding the inquiry, request child abuse and

maltreatment information maintained by the child abuse and maltreatment

registry from the applicable child welfare agency in each such state of

previous residence.

(ii) It shall be the duty of the prospective successor guardian to

inform the social services official that has entered into an agreement

with the relative guardian for payments under this title in writing of

the death or incapacity of the relative guardian and of the prospective

successor guardian's desire to enforce the provisions in the agreement

that authorize payment to him or her in the event of the death or

incapacity of the relative guardian.

(iii) The clearances requires by subparagraph (i) of this paragraph

shall be conducted following receipt by the social services official of

the written communication required by subparagraph (ii) of this

paragraph.

3. If the social services official determines that the child is

eligible for kinship guardianship assistance payments and it is in the

best interests of the child for the relative to become the legal

guardian of the child, the social services official shall enter into an

agreement with the prospective relative guardian authorizing the

provision of kinship guardianship assistance payments, non-recurring

guardianship payments, and other services and payments available under

this title subject to the issuance by the court of letters of

guardianship of the child to the prospective relative guardian and the

child being finally discharged from foster care to such relative. In

determining whether it is in the best interests of the child for the

relative to become the relative guardian of the child, the social

services official must determine and document that compelling reasons

exist for determining that the return home of the child and the adoption

of the child are not in the best interests of the child and are,

therefore, not appropriate permanency options. A copy of the fully

executed agreement must be provided by the social services official to

the prospective relative guardian.

4. (a) Payments and eligibility for services under this title shall be

made pursuant to a written agreement between the social services

official and the prospective relative guardian.

(b) The written agreement shall specify, at a minimum: the amount of,

and manner in which, each kinship guardianship assistance payment will

be provided under the agreement; the manner in which the payments may be

adjusted periodically, in consultation with the relative guardian, based

on the circumstances of the relative guardian and the needs of the

child; the additional services and assistance that the child and the

relative guardian will be eligible for under the agreement, which shall

be limited to the additional services and assistance set forth in this

title; the procedures by which the relative guardian may apply for

additional services, as needed; that the social services official will

pay the total cost of nonrecurring expenses associated with obtaining

legal guardianship of the child, to the extent the total cost does not

exceed two thousand dollars in accordance with section four hundred

fifty-eight-c of this title; and, that the agreement will remain in

effect regardless of the state of residence of the relative guardian at

any time.

(c) The agreement must be fully executed prior to the issuance of

letters of guardianship of the child to the relative guardian in order

for the child to be eligible for payments and services under this title.

(d) Payments pursuant to this section may be made by direct deposit or

debit card, as elected by the recipient, and administered

electronically, and in accordance with section twenty-one-a of this

chapter and with such guidelines as may be set forth by regulation of

the office of children and family services. The office of children and

family services may enter into contracts on behalf of local social

services districts for such direct deposit or debit card services in

accordance with section twenty-one-a of this chapter.

(e) The original kinship guardianship assistance agreement executed in

accordance with this section and any amendments thereto may name an

appropriate person to act as a successor guardian for the purpose of

providing care and guardianship for a child in the event of death or

incapacity of the relative guardian. Nothing herein shall be deemed to

require the relative guardian to name a prospective successor guardian

as a condition for the approval of a kinship guardianship assistance

agreement.

(f) A fully executed agreement between a relative guardian and a

social services official may be amended to add or modify terms and

conditions mutually agreeable to the relative guardian and the social

services official, including the naming of an appropriate person to

provide care and guardianship for a child in the event of death or

incapacity of the relative guardian.

(g) The social services official shall inform the relative guardian of

the right to name an appropriate person to act as a successor guardian

in the original kinship guardianship assistance agreement or through an

amendment to such agreement.

(h) A fully executed agreement between a relative guardian or a

successor guardian and a social services official may be terminated if:

(i) in accordance with paragraph (b) of subdivision seven of this

section, a social services official has determined that a relative

guardian or a successor guardian is no longer legally responsible for

the support of the child; or

(ii) following the death or permanent incapacity of a relative

guardian, all prospective successor guardians named in such agreement

were not approved by the social services district pursuant to

subparagraph (ii) of paragraph (b) of subdivision five of this section.

5. (a) Once the prospective relative guardian with whom a social

services official has entered into an agreement under subdivision four

of this section has been issued letters of guardianship for the child

and the child has been finally discharged from foster care to such

relative, a social services official shall make monthly kinship

guardianship assistance payments for the care and maintenance of the

child.

(b) (i) In the event of death or incapacity of a relative guardian, a

social services district shall make monthly kinship guardianship

assistance payments for the care and maintenance of a child to a

successor guardian that has been approved pursuant to subparagraph (ii)

of this paragraph.

(ii) Following the death or incapacity of the relative guardian, a

social services official shall approve a prospective successor guardian

that is named in the agreement between the relative guardian and a

social services official for payments under this title and that has been

awarded guardianship or permanent guardianship of the child by the court

unless, based on the results of the clearances required by paragraph (d)

of subdivision two of this section, the social services official has

determined that approval of the prospective successor guardian is not

authorized or appropriate. Provided however, that no approval can be

issued pursuant to this paragraph unless the prospective successor

guardian has been awarded guardianship or permanent guardianship of the

child by the court and the clearances required by paragraph (d) of

subdivision two of this section have been conducted.

(iii) Notwithstanding any other provision of law to the contrary, if a

prospective successor guardian assumes care of the child prior to being

approved pursuant to subparagraph (ii) of this paragraph, payments under

this title shall be made once a prospective guardian is approved

pursuant to such subparagraph retroactively from: (1) in the event of

death of the relative guardian, the date the successor guardian assumed

care of the child or the date of death of the relative guardian,

whichever is later; or (2) in the event of incapacity of the relative

guardian, the date the successor guardian assumed care of the child or

the date of incapacity of the relative guardian, whichever is later.

(c) In the event that a successor guardian assumed care and was

awarded guardianship or permanent guardianship of a child due to the

incapacity of a relative guardian and the relative guardian is

subsequently awarded or resumes guardianship or permanent guardianship

of such child and assumes care of such child after the incapacity ends,

a social services official shall make monthly kinship guardianship

assistance payments for the care and maintenance of the child to the

relative guardian, in accordance with the terms of the fully executed

written agreement.

6. The amount of the monthly kinship guardianship assistance payment

made pursuant to this section shall be determined pursuant to

regulations of the office. The amount of the monthly payment shall not

be less than seventy-five per centum of the applicable board rate nor

more than one hundred per centum of such rate as determined by the

social services district in accordance with the regulations of the

office; provided, however, that the rate chosen by the social services

district shall be equal to the rate used by the district for adoption

subsidy payments under section four hundred fifty-three of this article.

The social services official shall consider the financial status of the

prospective relative guardian or relative guardian only for the purpose

of determining the amount of the payments to be made.

7. (a) Kinship guardianship assistance payments shall be made to the

relative guardian or guardians until the child's eighteenth birthday or

until the child attains twenty-one years of age provided the child

consented upon attaining the age of eighteen and is: (i) completing

secondary education or a program leading to an equivalent credential;

(ii) enrolled in an institution which provides post-secondary or

vocational education; (iii) employed for at least eighty hours per

month; (iv) participating in a program or activity designed to promote,

or remove barriers to, employment; or (v) incapable of any of such

activities due to a medical condition, which incapability is supported

by regularly updated information in the case plan of the child.

(b) (i) Notwithstanding paragraph (a) of this subdivision, and except

as provided for in paragraph (b) of subdivision five of this section, no

kinship guardianship assistance payments may be made pursuant to this

title if the social services official determines that the relative

guardian is no longer legally responsible for the support of the child,

including if the status of the legal guardian is terminated or the child

is no longer receiving any support from such guardian. In accordance

with the regulations of the office, a relative guardian who has been

receiving kinship guardianship assistance payments on behalf of a child

under this title must keep the social services official informed, on an

annual basis, of any circumstances that would make the relative guardian

ineligible for such payments or eligible for payments in a different

amount.

(ii) Notwithstanding paragraph (a) of this subdivision, and except as

provided for in paragraph (c) of subdivision five of this section, no

kinship guardianship assistance payments may be made pursuant to this

title to a successor guardian if the social services official determines

that the successor guardian is no longer legally responsible for the

support of the child, including if the status of the successor guardian

is terminated or the child is no longer receiving any support from such

guardian. A successor guardian who has been receiving kinship

guardianship assistance payments on behalf of a child under this title

must keep the social services official informed, on an annual basis, of

any circumstances that would make the successor guardian ineligible for

such payments or eligible for payments in a different amount.

8. The placement of the child with the relative guardian or successor

guardian and any kinship guardianship assistance payments made on behalf

of the child under this section shall be considered never to have been

made when determining the eligibility for adoption subsidy payments

under title nine of this article of a child in such legal guardianship

arrangement.