N.Y. Comp. Codes R. & Regs. tit. 18 § 431.9

Current through Register Vol. 46, No. 19, May 8, 2024

Section 431.9 - Termination of parental rights by local social services agency

(a) Except as required in subdivision (e) of this section, each social services official must, at six months from removal and every six months thereafter, evaluate the status of the relationship, of each child in direct or purchased foster care with his/her natural family in order to determine whether the interests of the child will be served through termination of the parent's legal rights to guardianship and custody of the child. If it is determined that termination of the rights of the parent(s) would be in the child's best interests, or if, following a Family Court permanency hearing held under article 10-A of the Family Court Act, there is a court order directing that a proceeding to terminate parental rights be instituted, the social services official must take appropriate steps to promptly initiate essential procedures to terminate parental rights.

(b) In making a determination to terminate parental rights in accordance with subdivision (a) of this section, the social services official must consider:

(1) whether there are indications of parental rejection of the child, which may include the failure of the parent(s) since the child was removed or the most recent permanency hearing to:

(i) request visits with the child;

(ii) cooperate with the agency in planning and arranging visits with the child, although physically and financially able;

(iii) communicate with the child regularly by phone or letter if there is physical or financial inability to visit;

(iv) keep appointments to visit child as arranged;

(v) keep the agency informed as to his or her whereabouts;

(vi) keep appointments with agency staff which may have been arranged to assist the parent with those problems which affect the parent's ability to care for the child;

(vii) use community resources as arranged or suggested by the agency, or ordered by the court, or other involved agencies to resolve or correct the problems which impair parental ability to care for the child;

(viii) demonstrate a willingness and capacity to plan for the child's discharge, including taking what steps are necessary to provide an adequate, safe and stable home and parental care for the child within a reasonable period of time;

(2) whether there are indications that efforts to encourage and strengthen the parental relationship would not be in the child's best interests as evidenced by:

(i) addiction to alcohol or drugs to such a degree that the parent's ability to function in a mature and reasonable manner is impaired, or anti-social behavior to a degree that the parent is frequently incarcerated;

(ii) consistent expressed hostility towards the child or evidence of neglect and/or abuse during periods when the child has visited the parent;

(iii) consistent expressed resistance on the part of a child, judged to be of sufficient maturity and intelligence to make such judgment, to accept visits from the parent, or resistance on the part of a small child without sufficient maturity or judgment who exhibits resistance or defensive behavior; e.g., continual crying when parents visit, bedwetting, compulsive scratching, nervous habits, only evident when child is with parents but not evident in everyday behavior in the foster home;

(iv) the parent's mental illness, manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if the child were 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;

(v) the parent's mental retardation, manifested by impairment in adaptive behavior to such an extent that if such child were 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.

(c) If the social services official determines that the interests of the child would be best served by terminating parental rights and petitioning for the guardianship and custody of the child, he or she must:

(1) require that a caseworker on his or her staff, or on the staff of the agency having direct care of the child, interview the parents, parent, or legal guardian in order to discuss the future needs of the child for care, parental affection, safety and security, and determine whether the parent, parents or guardian will voluntarily surrender the guardianship and custody of the child, and accept such surrender as agreed. If such agreement cannot be reached with the parent, parents or guardian, clearly indicate to such parent, parents or guardian the steps which the agency may take or have been ordered to take in order to obtain a court commitment of guardianship and custody;

(2) require that there be documentation in the child's case record of all evidence which indicates the need to ask the court to grant the agency guardianship and custody of the child; and

(3) obtain whatever legal counsel is necessary in order to prepare a petition, which must be presented to the proper court as soon as possible but in no case more than 30 days following a determination that it is in the best interests of the child to terminate parental rights, unless there are serious extenuating circumstances which in the opinion of the local commissioner justify a special extension.

(d) Denying or limiting parental visitation. Prior to or concurrent with the initiation of a proceeding to terminate parental rights, if it is deemed to be in the child's best interests to deny or limit the right of the parent or parents to visit, and if such parent or parents will not voluntarily agree to such a limitation or discontinuance of visiting, a social services official must seek court approval of such decision to limit or deny to the parents the right to visit, provided legal grounds for such action exists under article 10 or 10-A of the Family Court Act.

(e)

(1) A social services district must file a petition to terminate parental rights or if such a petition has been filed by another party, seek to be joined as a party to such petition if one of the following events occurs:

(i) the child has been in foster care for 15 of the most recent 22 months;

(ii) a court of competent jurisdiction has determined the child to be an abandoned child; or

(iii) a court of competent jurisdiction has made a determination that the parent has been convicted of: the murder or voluntary manslaughter of another child of the parent; the attempt, facilitation, conspiracy, or solicitation to commit such a murder or manslaughter; or a felony assault that resulted in serious bodily injury to the child or to another child of the parent.

(2) A social services district is not required to file a petition to terminate parental rights as set forth in paragraph (1) of this subdivision if based on a case-by-case determination:

(i) the child is being cared for by a relative, provided, however, nothing in this section precludes a social services district from filing a petition to terminate parental rights when such petition is in the best interests of the child;

(ii) the social services district has documented in the case plan available for court review a compelling reason for determining that filing such a petition would not be in the best interests of the child and, for the purposes of this section, a compelling reason would include, but not be limited to:

(a) the child was placed into foster care pursuant to article 3 or 7 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 another planned living arrangement with a permanency resource;

(b) where adoption is not the appropriate permanency goal for the child;

(c) the child is 14 years of age or older and will not consent to his or her adoption;

(d) the child is the subject of a pending disposition under article 10 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 10 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;

(e) there are insufficient grounds for filing a petition to terminate parental rights; or

(iii) the social services district has not provided the family of the child, consistent with the time period in the service plan of the child, such services as the social services district deems necessary for the safe return of the child to the child's family, consistent with the provisions of section 430.12 of this Title unless such services are not legally required.

(3) Whenever a social services district determines that a petition to terminate parental rights must be filed in accordance with the provisions of this subdivision, the social services district must also make reasonable efforts to identify, recruit, process and approve a qualified family for the adoption of the child, if such steps have not already taken place.

(4) When a court of competent jurisdiction has made a determination that a child is abandoned in accordance with subparagraph (1)(ii) of this subdivision or where a court of competent jurisdiction has made a determination that a parent has been convicted of the criminal offenses set forth in subparagraph (1)(iii) of this subdivision, the social services district must file a petition to terminate parental rights or seek to be joined in a pending proceeding within 60 days of such court determination, unless one of the exceptions set forth in paragraph (2) of this subdivision apply.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 431.9