Relates to procedures for destitute children; repealer

Summary of provisions

Section 1 of the bill would clarify that the court may appoint an attorney for the child in proceedings under Article 10-b of the Family Court Act ("FCA") for youth up to age twenty-one.

Sections 2 and 3 of the bill would remove references to appointment of counsel under FCA Articles 10-b and 10-c of FCA § 262(a)(i) and (iv).

Section 4 of the bill would provide for the appointment of counsel for any parent or caretaker and certain interested adults in proceedings under Article 10-c if such person is financially eligible.

Section 5 of the bill would amend FCA § 1055 to remove a reference to destitute children.

Section 6 of the bill would amend the definition of a "destitute child." Under the new definition, a destitute child would include a child who is in a state of want or suffering, does not fit within the definition of an abused or neglected child under Article 10 of the FCA, and is without any parent or caretaker available to sufficiently care for him or her due to: the death, incapacity or debilitation of a parent or caretaker, the inability of the local district to locate any parent or caretaker, or because the parent or caretaker is outside of the state and the local district and been unable to return the child.

Section 7 of the bill would change the term "person legally responsible" to "caretaker." The term "caretaker" would be defined to include a person or persons, other than the child's parent, who has a lawful order of custody or guardianship of the child.

Section 8 of the bill would add a definition of "interested adult." This definition would include an adult who is not the child's parent and who, at the relevant time, resided with and had responsibility for the day-to-day care of the child.

Section 9 of the bill would provide that only a local social services district may originate a destitute child proceeding. Section nine would further provide that venue in Article 10-c proceedings is proper where the child resides or is found, and that the court may transfer the proceeding to another appropriate venue.

Section 10 of the bill would provide that destitute child petitions shall contain certain allegations if the information is known by the local social services district.

Section 11 of the bill would clarify that the court shall require caretakers and interested adults identified in the petition, and any person made a party to the action by the court, to be summoned and served with a copy of the petition.

Sections 12 through 15 of the bill would require the court take the following actions at the initial appearance on a destitute child petition: appoint an attorney to represent any parent or caretaker, or an interested adult who falls within the criteria specified in FCA § 262(a)(ix); determine whether temporary care is necessary to avoid risk to the child's life or health; and direct the local social services district to investigate whether there are caretakers or interested adults not named in the petition.

Section 16 of the bill would provide caretakers and interested adults from whose care the child was removed with the right to a removal hearing.

Section 17 of the bill would authorize the court to appoint a person who has a significant connection to the child as a party to the proceeding. Section 17 would further authorize the court to, if it deems appropriate, appoint counsel to an interested adult or another person made a party to the action if such person is financially eligible.

Section 18 of the bill would provide that a fact-finding hearing cannot commence unless all parties are present and have been served with a copy of the petition; provided that if any party is not present, the court may proceed if every reasonable effort has been made to affect service on such person.

Section 19 of the bill would provide that at the conclusion of the fact-finding hearing the court may amend the allegations to conform to the proof if no parties object. Section 19 would further provide that if the court sustains the petition, the disposition for the destitute child would be either placement with the local social services district, or the granting of an order of custody or guardianship to a relative or other suitable person.

Section 20 of the bill would add a new FCA § 1096 which would specify the findings the court must make in order to grant an order of custody or guardianship of a child who is the subject of a pending destitute child proceeding.

Section 21 of the bill would amend Social Services Law (SSL) § 371(3) in relation to the definition of "destitute child." This definition would mirror the definition in FCA § 1092(a).

Section 22 would provide that termination of parental rights proceedings can be filed against the parents of youth who are placed into foster care pursuant to FCA Article ten-c.

Section 23 of the bill would specify the services local social services districts are required to provide to destitute children.

Section 24 of the bill would clarify that local social services districts are only required to place children who are in their care and custody, or custody and guardianship in foster homes or other residential settings.

Section 25 of the bill would repeal a defunct section of law which restricts a local district's ability to place destitute children who are not between the ages of sixteen or eighteen in foster care or other residential settings.

Section 26 of the bill would provide that certain aliens are eligible for foster care services.

Sections 27 and 28 of the bill would amend the effective dates of two chapters of the laws of 2011, to provide that those acts shall only take effect upon the approval by the United States Department of Health and Human Services Administration for Children, Youth and Families of a New York State title IV-E plan amendment to add destitute children.

Section 29 of the bill would provide for the effective date of this act.

Existing law

There are currently no procedures in place for the Family Courts to place destitute children in the care and custody of social services districts.

Statement in support

"Destitute children" are children who are in a state of want and suffering and are without a person legally responsible for their care. Examples of destitute children include, but are not limited to, orphans, refugee children and children whose only known or available parent, guardian or custodian suffers from dementia, or is in a coma.

Local social services districts are required under the Social Services Law to provide services and/or care to destitute children. However, there is currently no mechanism in the law through which local districts can obtain a court order indicating that a destitute child is in their care and custody. As a result, local social services

districts often face difficulties in obtaining necessary services for destitute children, including medical, mental health, immigration or educational services.

Importantly, lack of court involvement has also meant that local social services districts cannot obtain federal title IV-e reimbursement for the services provided to destitute children.

Finally, lack of court oversight deprives destitute children of legal representation and other due process rights afforded to other foster youth.

Budget implications

There would be no state or local cost associated with this bill. However, this bill would have a positive fiscal impact on counties as it would allow social services districts to receive federal reimbursement for approximately fifty percent of the costs of care for eligible destitute children.

Effective date

This act would take effect immediately, provided however that sections one through twenty-six would take effect upon the approval by the United States Department of Health and Human Services Administration for Children, Youth and Families of a New York State title IV-E plan amendment to add destitute children.