(a) Filing of the petition. Only a commissioner of social services may originate a proceeding under this article. A proceeding under this article may be originated by the filing of a petition alleging that the child is a destitute child as defined by section one thousand ninety-two of this article. A commissioner of social services, who accepts the care and custody of a child appearing to be a destitute child, shall provide for such child as authorized by law, including but not limited to section three hundred ninety-eight of the social services law, and shall file a petition pursuant to this section within fourteen days upon accepting the care and custody of such child.
Terms Used In N.Y. Family Court Law 1093
- Allegation: something that someone says happened.
- Answer: The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense.
- caretaker: shall mean a person or persons, other than a parent of a child alleged or adjudicated to be a destitute child pursuant to this article, who possesses a valid, current court order providing him or her with temporary or permanent guardianship or temporary or permanent custody of said child. See N.Y. Family Court Law 1092
- commissioner of social services: shall mean the commissioner of the local department of social services or, in a city having a population of one million or more, the administration for children's services. See N.Y. Family Court Law 1092
- destitute child: shall mean a child under the age of eighteen who is in a state of want or suffering due to lack of sufficient food, clothing, shelter, or medical or surgical care and:
(1) does not fit within the definition of an "abused child" or a "neglected child" as such terms are defined in section one thousand twelve of this act; and
(2) is without any parent or caretaker available to sufficiently care for him or her, due to:
(i) the death of a parent or caretaker; or
(ii) the incapacity or debilitation of a parent or caretaker, where such incapacity or debilitation would prevent such parent or caretaker from being able to knowingly and voluntarily enter into a written agreement to transfer the care and custody of said child pursuant to section three hundred fifty-eight-a or three hundred eighty-four-a of the social services law; or
(iii) the inability of the commissioner of social services to locate any parent or caretaker, after making reasonable efforts to do so; or
(iv) a parent or caretaker being physically located outside of the state of New York and the commissioner of social services is or has been unable to return the child to such parent or caretaker while or after making reasonable efforts to do so, unless the lack of such efforts is or was appropriate under the circumstances. See N.Y. Family Court Law 1092
- Interested adult: shall mean a person or persons over the age of eighteen, other than a parent or caretaker, who, at the relevant time resided with and had responsibility for the day-to-day care of a child alleged or adjudicated to be destitute. See N.Y. Family Court Law 1092
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- parent: shall mean any living biological or adoptive parent of the child whose rights have not been terminated or surrendered. See N.Y. Family Court Law 1092
- Summons: Another word for subpoena used by the criminal justice system.
- Venue: The geographical location in which a case is tried.
(b) Venue. A petition under this article shall be filed in the family court located in the county where the child resides or is found; provided however, that upon the motion of any party or the attorney for the child, the court may transfer a petition filed under this article to a county the court deems to be more appropriate under the circumstances, including, but not limited to, a county located within a jurisdiction where the child is domiciled or has another significant nexus.
(c) Contents of the petition. (1) The petition shall allege upon information and belief:
(i) the manner, date and circumstance under which the child became known to the petitioner;
(ii) the child’s date of birth, if known;
(iii) that the child is a destitute child as defined in subdivision (a) of section one thousand ninety-two of this article and the basis for the allegation;
(iv) the identity of the parent or parents of the child in question, if known;
(v) whether the parent or parents of the child are living or deceased, if known;
(vi) the whereabouts and last known address for the parent or parents, if known;
(vii) the identity of a caretaker or interested adult, if known;
(viii) the efforts, if any, which were made prior to the filing of the petition to prevent any removal of the child from the home and if such efforts were not made, the reasons such efforts were not made; and
(ix) the efforts, if any, which were made prior to the filing of the petition to allow the child to return or remain safely home, and if such efforts were not made, the reasons such efforts were not made.
(2) The petition shall contain a notice in conspicuous print providing that if the child remains in foster care for fifteen of the most recent twenty-two months, the agency may be required by law to file a petition to terminate parental rights.
(d) Service of summons. (1) Upon the filing of a petition under this article, if a living parent, caretaker or interested adult is identified in the petition, the court shall cause a copy of the petition and a summons to be issued the same day the petition is filed, requiring such parent, caretaker or interested adult to appear in court on the return date to answer the petition. If the court deems a person a party to the proceeding pursuant to subdivision (c) of section one thousand ninety-four of this article and if such person is not before the court, the court shall cause a copy of the petition and a summons requiring such person to appear in court on the return date be served on such person.
(2) Service of a summons and petition under this article shall be made by delivery of a true copy thereof to the person summoned at least twenty-four hours before the time stated therein for appearance.
(3) The court may send process without the state in the same manner and with the same effect as process sent within the state in the exercise of personal jurisdiction over any person subject to the jurisdiction of the court under section three hundred one or three hundred two of the civil practice law and rules, notwithstanding that such person is not a resident or domiciliary of the state. Where service is effected outside of the state of New York on a parent, caretaker, interested adult or person made a party to the proceeding pursuant to subdivision (c) of section one thousand ninety-four of this article and such person defaults by failing to appear to answer the petition, the court may on its own motion, or upon application of any party or the attorney for the child proceed to a hearing pursuant to section one thousand ninety-five of this article.
(4) If after reasonable effort, personal service is not made, the court may at any stage in the proceedings make an order providing for substituted service in the manner provided for substituted service in civil process in courts of record.