Failure to Maintain Contact
Failure to Provide Support
Child Judged in Need of Services/Dependent
Child's Best Interest
Child in care 15 of 22 months (or less)
Felony assault of child or sibling
Murder/Manslaughter of sibling child
Circumstances That Are Not Grounds for Termination
Failure to Establish Paternity
N.Y. Soc. Serv. Law § 384-b (3)(l), (4), (5)(a), (6)(a)-(b), (7)(a)-(d) (West, WESTLAW through L. 2003)
Whenever the child shall have been in foster care for 15 months of the most recent 22 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 below, the authorized agency having care of the child shall file a petition pursuant to this section unless based on a case by case determination:
The child is being cared for by a relative or relatives; or
The agency has documented in the most recent case plan a compelling reason for determining that the filing of a petition would not be in the best interest of the child; or
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.
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 may include, but is not limited to, where:
The child was placed into foster care and a review of the specific facts and circumstances of the child's placement demonstrates that the appropriate permanency goal for the child is either a return to his or her parent or guardian; or discharge to independent living;
The child has a permanency goal other than adoption;
The child is 14 years of age or older and will not consent to his or her adoption;
There are insufficient grounds for filing a petition to terminate parental rights; or
The child is the subject of a pending disposition.
For the purposes of this paragraph, a petition for the termination of parental rights shall be filed when:
The parent of such child has been convicted of murder in the first degree, murder in the second degree, manslaughter in the first degree, or manslaughter in the second degree, and the victim was another child of the parent; provided that the parent must have acted voluntarily in committing such crime or has been convicted of an attempt to commit any of the foregoing crimes, and the victim or intended victim was the child, another child of the parent or another child for whose care such parent is or has been legally responsible;
The parent of such child has been convicted of criminal solicitation, conspiracy, or criminal facilitation for conspiring, soliciting, of 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 the parent is or has been legally responsible;
The parent of such child has been convicted of assault in the second degree, assault in the first degree, or aggravated assault upon a person less than 11 years old, or has been convicted of an attempt to commit any of the foregoing crimes, and the victim or intended victim was the child, another child of the parent, or another child for whose care such parent is or has been legally responsible; or
The parent of such child has been convicted under the law of any other jurisdiction of an offense which includes all the essential elements of any crime specified in this subparagraph.
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:
Both parents of the child are dead, and no guardian of the person of such child has been lawfully appointed; or
The parent or parents, whose consent to the adoption of the child would otherwise be required, abandoned such child for the period of 6 months immediately prior to the date on which the petition is filed in the court; or
The parent or parents, whose consent to the adoption of the child would otherwise be required, are presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for a child who has been in the care of an authorized agency for the period of 1 year immediately prior to the date on which the petition is filed in the court; or
The child is a permanently neglected child; or
The parent or parents, whose consent to the adoption of the child would otherwise be required, severely or repeatedly abused such child, and the child has been in the care of an authorized agency for the period of 1 year immediately prior to the initiation of the proceeding under this section.
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.
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 more than 1 year 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. 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:
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.
As used in this paragraph, 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.
For the purposes of this subdivision 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; and 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.
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