A motion to return a former foster care youth under the age of twenty-one, who was discharged from foster care due to a failure to consent to continuation of placement, to the custody of the local commissioner of social services or other officer, board or department authorized to receive children as public charges, may be made by such former foster care youth, or by a local social services official upon the consent of such former foster care youth, if there is a compelling reason for such former foster care youth to return to foster care; provided however, that the court shall not entertain a motion filed after twenty-four months from the date of the first final discharge that occurred on or after the former foster care youth’s eighteenth birthday; provided further, however, that during the state of emergency declared pursuant to Executive Order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic, a former foster care youth shall be entitled to return to the custody of the local commissioner of social services or other officer, board or department authorized to receive children as public charges without making a motion pursuant to this section and any requirement to enroll and attend an educational or vocational program shall be waived for the duration of the state of emergency. Subsequent to a former foster youth’s return to placement without making a motion, as authorized under this section during the state of emergency declared pursuant to Executive Order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic, nothing herein shall prohibit the local social services district from filing a motion for requisite findings needed to claim reimbursement under Title IV-E of the federal social security act to support the youth’s care, and the family court shall hear and determine such motions.

Terms Used In N.Y. Family Court Law 1091

  • Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.

(a) A motion made pursuant to this section by a social services official shall be made by order to show cause. Such motion shall show by affidavit or other evidence that:

(1) the former foster care youth has no reasonable alternative to foster care;

(2) the former foster care youth consents to enrollment in and attendance at an appropriate educational or vocational program, unless evidence is submitted that such enrollment or attendance is unnecessary or inappropriate, given the particular circumstances of the youth;

(3) re-entry into foster care is in the best interests of the former foster care youth; and

(4) the former foster care youth consents to the re-entry into foster care.

(b) A motion made pursuant to this section by a former foster care youth shall be made by order to show cause or ten days notice to the social services official. Such motion shall show by affidavit or other evidence that:

(1) the requirements outlined in paragraphs one, two and three of subdivision (a) of this section are met; and

(2) the applicable local social services district consents to the re-entry of such former foster care youth, or if the applicable local social services district refuses to consent to the re-entry of such former foster care youth and that such refusal is unreasonable.

(c) (1) If at any time during the pendency of a proceeding brought pursuant to this section the court finds a compelling reason that it is in the best interests of the former foster care youth to be returned immediately to the custody of the local commissioner of social services or other officer, board or department authorized to receive children as public charges pending a final decision on the motion, the court may issue a temporary order returning the youth to the custody of the local

commissioner of social services or other officer, board or department authorized to receive children as public charges.

(2) Where the local social services district has refused to consent to the re-entry of a former foster care youth, and where it is alleged pursuant to paragraph two of subdivision (b) of this section, that such refusal by such social services district is unreasonable, the court shall grant a motion made pursuant to subdivision (b) of this section if the court finds and states in writing that the refusal by the local social services district is unreasonable. For purposes of this section, a court shall find that a refusal by a local social services district to allow a former foster care youth to re-enter care is unreasonable if:

(i) the youth has no reasonable alternative to foster care;

(ii) the youth consents to enrollment in and attendance at an appropriate educational or vocational program, unless the court finds a compelling reason that such enrollment or attendance is unnecessary or inappropriate, given the particular circumstances of the youth; and

(iii) re-entry into foster care is in the best interests of the former foster youth.

(3) Upon making a determination on a motion filed pursuant to this section, where a motion has previously been granted pursuant to this section, in addition to the applicable findings required by this section, the court shall grant the motion to return a former foster care youth to the custody of the local commissioner of social services or other officer, board or department authorized to receive children as public charges only:

(i) upon a finding that there is a compelling reason for such former foster care youth to return to care;

(ii) if the court has not previously granted a subsequent motion for such former foster care youth to return to care pursuant to this paragraph; and

(iii) upon consideration of the former foster care youth’s compliance with previous orders of the court, including the youth’s previous participation in an appropriate educational or vocational program, if applicable.