N.Y. Comp. Codes R. & Regs. tit. 18 § 430.10

Current through Register Vol. 46, No. 45, November 2, 2024

Section 430.10 - Necessity of placement

(a)General requirements.

(1) For purposes of this section, the placement of a child in foster care after April 1, 1982, shall be considered necessary if the standard for necessary activities prior to the placement and the standard for placement, as set forth in subdivisions (b)- (c) of this section, are met.

(2) The necessity of a child's placement shall be documented on the forms prescribed by the department in Part 428 of this Title according to the standards for documentation defined under the standard for necessary activities prior to placement and the standard for placement as set forth in subdivisions (b) and (c) of this section. In the absence of documentation in the uniform case record for the standard for placement, the placement shall be deemed unnecessary. To the extent permitted by the Mental Hygiene Law and the regulations of the Office of Mental Health and the Office of Mental Retardation and Developmental Disabilities, social services officials shall obtain copies of the case records and service plans and any updates to such records and plans for children whose care and custody have been transferred to such officials and who are receiving care in facilities operated or supervised by such offices. Such records, plans and updates shall be made a part of the uniform case record. It shall be the responsibility of the district to show that the standard for necessary activities prior to placement has been met, and a failure to provide evidence that this standard has been met shall be deemed equivalent to a failure to meet the standard.

(b) Standard for necessary activities prior to placement.

For each foster care placement, the district shall:

(1) provide preventive services to the family and child prior to placement, unless the offer of preventive services has been refused or the placement is the result of a court order or due to the circumstance described as health and safety of the child as defined in paragraphs (c)(1) and (d)(2) of this section or unless the parents or caretakers are dead, their whereabouts unknown, or their absence is anticipated to be longer than six months or the child has been placed in a facility operated or supervised by the Office of Mental Health or Office of Mental Retardation and Developmental Disabilities;

(2) attempt prior to the placement of a child in foster care to locate adequate alternative living arrangements with a relative or family friend which would enable the child to avoid foster care placement, unless the child is placed as a result of a court order or surrender agreement as defined in paragraphs (d)(2) and (c)(2) of this section or the child has been placed in a facility operated or supervised by the Office of Mental Health or Office of Mental Retardation and Developmental Disabilities;

(3) document in the first uniform case record form required after the date of authorization for foster care services that preventive services have been offered and the reasons why they were not able to avert the placement, except when the placement is the result of a court order or due to the circumstances described as health and safety of the child, as defined in paragraphs (d)(2) and (c)(1) of this section, or when a child is placed in a facility operated or supervised by the Office of Mental Health or Office of Mental Retardation and Developmental Disabilities, or when the child's parents or caretakers are dead, their whereabouts are unknown, or their absence is expected to last longer than six months, and that no adequate alternative arrangements are available except in placements resulting from court orders or surrender agreements, as defined in paragraphs (d)(2) and (c)(2) of this section or when a child is placed in a facility operated or supervised by the Office of Mental Health or Office of Mental Retardation and Developmental Disabilities;

(4) prior to placing in foster care the child or children of a minor parent who is in foster care, attempt to place such child or children in the same foster family home or residential facility without assuming care and custody of the child or children of the minor parent, unless foster care placement is necessitated by a court order as described in paragraph (d)(2) of this section; and

(5) document in the first uniform case record form required after the date of authorization for foster care services that it was not possible to place the child or children of a minor parent in foster care with the minor parent; or why it was necessary to seek care and custody of such child or children despite placing the minor parent and his or her child or children in the same foster family home or residential facility.

(c)Standard for placement.

Placement of a child in foster care shall occur when removal from the home is essential for ensuring the child receives proper care, nurturance or treatment. The circumstances in which placement may be considered essential for this purpose are the following:

(1) Health and safety of child.

(i) Circumstance. The child or a sibling has been subjected by the parents or caretakers, within the 12 months immediately prior to the date on which the program choice "Placement" is selected, to serious physical injury by other than accidental means, or to risk of serious physical injury by other than accidental means, or to serious impairment of their physical, mental or emotional condition as a result of the failure of the parents or caretakers to exercise a minimum degree of care.

(ii) Documentation.

(a) The first uniform case record form required after the date of authorization for foster care services shall contain a description of instances within the 12 months immediately prior to the date on which the program choice "Placement" is selected in which the child has been harmed emotionally or physically and the type of harm which has resulted, or shall indicate that at the time of placement conditions existed which placed the child or siblings in danger of serious emotional or physical harm which would have been likely to result from these conditions.

(b) If the child has continued in placement beyond the date the first service plan review is required, the most recent assessment and service plan required by the uniform case record shall indicate that conditions persist which, if the child were to be returned home, would continue to place the child in danger of serious physical or emotional harm. In order to establish a continuing danger to the child, the assessment and service plan shall cite one or more of the following factors: the parents' or caretakers' willingness to maintain regular contact with the child, their behavior during visits, their response to services offered or provided by the district or other involved agencies, their expressed willingness to take the child home and to plan for his or her welfare, the present status of environmental or any other factors which contributed to the original problems which necessitated the placement, and the overall progress of the parent toward the accomplishment of the goals established in the most recent service plan required by the uniform case record.

(2) Parental refusal or surrender.

(i) Circumstance. The parent or caretakers refuse to maintain the child in the home or have voluntarily surrendered the child for adoption.

(ii) Documentation.

(a) The first uniform case record form required after the date of authorization for foster care services shall show that, prior to the placement, the local social services district attempted without success to persuade the parents or caretakers to maintain the child in the home, and offered services to assist in maintaining the child in the home and that these services were refused. The most recent assessment and service plan required by the uniform case record shall show that the district continues to make such efforts, and that these efforts continue to fail and/or be refused for as long as the child's discharge objective is "return to parents" or until the parents have signed a surrender agreement.

(b) If a surrender has been completed, the assessment and service plan required by the uniform case record shall also:

(1) include a copy of the surrender agreement, or a description of the date and conditions of the agreement;

(2) indicate whether the agreement of any other putative parent is necessary before the child can be adopted;

(3) document efforts beginning within 30 days of the date of the surrender agreement to locate and assess the suitability to care for the child of any other putative parent whose agreement is necessary before the child can be adopted; and

(4) show efforts, if the parent is suitable, to place the child with the parent, if the other parent is unsuitable, to obtain a surrender agreement from this person, or as soon as legally appropriate, to initiate an action to terminate this person's parental rights pursuant to section 384-b of the Social Services Law, or if the parent's whereabouts are not known and efforts to locate him or her are unsuccessful, to initiate an action to terminate this parent's rights on the basis of abandonment once he or she has failed to maintain contact with the child or the child's caretakers for a six-month period, pursuant to section 384-b of the Social Services Law.

(3) Parent unavailability.

(i) Circumstance. The child's parents or caretakers are unavailable due to:

(a) hospitalization;

(b) arrest, detainment or imprisonment;

(c) death; or

(d) the fact that their whereabouts are unknown.

(ii) Documentation.

(a) The first uniform case record form required after the date of authorization for foster care services shall contain the reason for the absence of the parents and the expected duration of that absence if the parents or caretakers are living and their whereabouts known, and a summary of the efforts to find an alternative living arrangement for the child, as defined in subdivision (b) of this section.

(b) If the parents or caretakers are living and their whereabouts known, and if the child has continued in placement beyond the date the first service plan review is required, the most recent assessment and service plan required by the uniform case record shall indicate whether any change has occurred in the reason for the parents' or caretakers' absence or in the expected duration of that absence. For parents or caretakers whose whereabouts are unknown, the most recent assessment and service plan required by the uniform case record shall indicate what progress has been made in attempting to locate them. When parental rights have been terminated, no further documentation is required to establish necessity of placement.

(4) Parent service needs.

(i) Circumstance. The child is placed at risk of serious physical or emotional harm due to an emotional, mental or physical condition of the parents or caretakers, which seriously impairs the parents' or caretakers' ability to care for the child.

(ii) Documentation.

(a) The first uniform case record form required after the date of authorization for foster care services shall contain documentation of the specific type and degree of parental impairment and a summary of instances in which the parental impairment seriously harms the child emotionally or physically or has placed the child in danger of such harm.

(b) If the child has continued in care beyond the date the first service plan review is required, the most recent assessment and service plan required by the uniform case record shall show that the impairment persists and that it would continue to pose a risk of serious emotional or physical harm to the child if he or she were to return home. In order to establish a continuing danger to the child, such assessment and service plan shall cite one or more of the following factors: the parents' or caretakers' willingness to maintain regular contact with the child, their behavior during visits, the adequacy of and their response to services offered or provided by the district or other involved agencies, their expressed willingness to take the child home and to plan for his or her welfare, the present status of the condition which necessitated the placement, and the overall progress of the parent toward the accomplishment of the goals established in the service plan.

(5) Child service needs.

(i) Circumstance. The child has special needs for supervision or services which cannot be adequately met by the child's parents or caretakers, even with the aid of intensive services in the home. This need for services is the result of one of the following:

(a) The child has a diagnosed or diagnosable, physical, mental or emotional condition which severely impairs the child's ability to carry out daily, age-appropriate activities and which presents treatment needs which are too extensive or specialized for the child's parents to be able to maintain the child in the home.

(b) The child's behavior, although not dangerous, cannot be managed in the home, the school, or the community, even with extensive support to the parents and child.

(c) The child's behavior presents a serious danger to other people or to the child himself.

(d) The child is eligible for admission to a facility operated or supervised by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities.

(ii) Documentation. The most recent assessment and service plan required by the uniform case record shall show the services which are to be provided to the child which will assist in alleviating the child's behavior or condition.

(a) The first uniform case record form required after the date of authorization for foster care services, shall contain:

(1) a description of behavior patterns which inhibit the child's ability to carry out everyday activities in school, home or community; diagnosis by a licensed psychiatrist or psychologist, including a permanently certified school psychologist, or by a certified social worker other than the case manager or case planner, shall be deemed appropriate documentation for this subparagraph;

(2) a description of repeated instances of behaviors which cannot be managed in the home, the school, or the community, and efforts to ameliorate these problems through the provision of extensive support services; or

(3) a summary of instances within the 12 months immediately prior to the date on which the program choice "Placement" is chosen in which the child has intentionally harmed or attempted to harm other persons or himself, or indicate that a licensed psychiatrist or psychologist, including a permanently certified school psychologist, or a certified social worker other than the case manager or case planner, has stated, in writing, that the child presents a serious danger to himself or others.

(b) If the child has continued in placement beyond the date at which the service plan review is required, the most recent assessment and service plan required by the uniform case record shall indicate that the behavior or condition continues at the present to require services at a level sufficient to justify continued placement, including:

(1) examples or a description of the child's recent behavior which illustrates that the child continues to require the provision of an extensive set of services and that without these services his behavior would be cause for placement; and

(2) the reasons why necessary services or supervision still cannot be provided in the child's home.

(c) If the behavior which led to the placement has stopped or greatly diminished over a six-month period, the most recent assessment and service plan required by the uniform case record shall show which services needed by the child to prevent or diminish the behavior cannot be provided in the home and the reasons why they cannot be provided.

(d) If a child has been placed in a facility operated or supervised by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities, documentation in the uniform case record which indicates that the child has been admitted to such facility shall be deemed to fulfill the documentation requirements of this subparagraph.

(6) Pregnancy.

(i) Circumstance. A woman is pregnant or has given birth, and foster care placement would enable the mother and child to remain together and would significantly aid the mother in preparing to assume responsibility to care for her child or in making a decision to surrender the child for adoption.

(ii) Documentation. The first uniform case record form required after the date of authorization for foster care services shall:

(a) indicate whether the woman is pregnant or has given birth; and

(b) contain a description of the parental functions which the woman is unable to perform, as well as the availability of the woman's parents or other relatives as resources.

(d) Notwithstanding any other provisions of this section, reimbursement shall not be withheld for any placement undertaken for the following reasons:

(1) Diagnostic evaluation. The child has been placed in a foster care program for no longer than 90 days specifically for the purpose of conducting a comprehensive diagnostic evaluation of the child. The first uniform case record form required after placement in the foster care program shall indicate the specific questions to be answered by the evaluation, examples of the child's behavior or problems which necessitate this type of evaluation for this child, the reasons why the evaluation could not be completed while the child remains at home, and a description of the evaluation results when they become available.

(2) Court-ordered placement. The child was placed or remanded to the custody of the Commissioner of Social Services by the Family Court and foster care placement has been ordered by the court pursuant to article 3, 7, 10, 10-B or 10-C of the Family Court Act. Documentation shall include a copy of the court order or a description of the date and condition of the order in the first uniform case record form required after the court-ordered placement.

(e) Notwithstanding any other provisions of this section, reimbursement cannot be withheld for any placement that is continued beyond 90 days where a determination has been made by the case manager and documented in the assessment and service plan required in the uniform case record that the primary factor necessitating continued placement is the family's lack of adequate housing and that preventive services, including housing services as defined in section 423.2(b)(16) of this Title, have been authorized to facilitate the child's or children's discharge from care and the child or children will be or have been discharged within two months of such authorization of such services or the date adequate housing is made available to the family.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 430.10

Amended New York State Register June 17, 2015/Volume XXXVII, Issue 24, eff.6/17/2015