This bill has been amended

Bill S4529-2013

Relates to the reentry of foster children into foster care

Relates to the reentry of foster children into foster care.

Details

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  • May 13, 2013: PRINT NUMBER 4529
  • May 13, 2013: AMEND AND RECOMMIT TO CHILDREN AND FAMILIES
  • Apr 8, 2013: REFERRED TO CHILDREN AND FAMILIES

Memo

BILL NUMBER:S4529

TITLE OF BILL: An act to amend the family court act, in relation to reentry of former foster children into foster care

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Family Court Advisory and Rules Committee.

Chapter 342 of the Laws of 2010, which permits youth who have "aged out" of foster care at the age of 18 to reenter care, has provided a vital "safety net" in cases where such youth would otherwise be facing homelessness or other adverse outcomes. Enacted at the time that Federal foster care assistance first became available for youth between the ages of 18 and 21,{1} the statute has proven invaluable in preventing future societal costs by ensuring that the youth will have the support necessary to fulfill the commitments that they must make to participate in educational or vocational programs as a condition of reentry into care.

We submit this measure to clarify one aspect of the statute that has caused some confusion, that is, the categories of former foster youth to whom the statute applies. "Former foster care youth" is not defined in Family Court Article 10-B and, although referenced in the permanency hearing provisions (Family Court Act Article 10-A), no specific cross-references are contained in provisions applicable to Persons in Need of Supervision (PINS) or juvenile delinquency. This measure would remedy that gap by amending the post-dispositional provisions regarding extensions of placement in both the juvenile delinquency and PINS statutes -i.e., Family Court Act §§ 355.3 and 756-a(f) - to include references to Family Court Act § 1091. It would further amend Family Court Act § 1091 to add a definition of "former foster care youth" that explicitly includes youth placed in foster care pursuant to juvenile delinquency, PINS, child protective or destitute child adjudications, voluntary placements and children freed for adoption but not yet adopted.

This measure would codify the only appellate ruling on the statute to date and is consistent with the position taken by the State Office of Children and Family Services (OCFS), the oversight agency for foster care in New York. The Appellate Division, Second Department, in Matter of Jefry H., -A.D.3d-, 955 N.Y.S.2d 90, 2012 N.Y.Slip Op. 08007 (2nd Dept., 2012), recently reversed a Family Court decision in which the judge had construed the absence of specific language to mean that the statute did not cover PINS cases. In holding that Family Court Act 1091 does apply to PINS who had been placed in foster care, the Appellate Division noted that the rationale for enacting chapter 342 applies with equal force to all foster youth discharged from care. The Court further noted the broad interpretation accorded to the scope of the statute by the OCFS. Id. Consistent with Federal requirements to treat all categories of youth eligible to receive foster care assistance under Title IV-E of the Social Security Act identically, the OCFS, in its administrative memorandum to local social services districts, indicated that the statute applied to all former foster youth, including PINS and juvenile delinquents placed with local departments of social services. See 11-OCFS ADM-02 (March 3, 2011) at pages 2, 7.

Professor Merril Sobie, in his 2012 Practice Commentary to Family Court Act § 1091, indicated that "the language strongly suggests that the statute applies to each and every foster child, and is not limited to children who have been placed as a result of an Article 10 child protective proceeding." Writing before the Appellate Division reversal in Matter of Jefry H., Prof. Sobie continued:

It would have been preferable if Article 10-B had been drafted to explicitly apply to non-Article 10 placements. (See, by comparison, Section 1087(a), which enumerates the placements for which Article 10-A applies.) But the lack of an explicit provision is not necessarily dispositive. It's difficult to conceive that the Legislature intended to differentiate or discriminate between similarly situated "former foster care youth", or that the legislative decision to craft a separate article excludes non-Article 10 children (if Section 1091 was intended to be limited to Article 10 placements, it would have presumably been added to that Article). The issue will probably be raised and determined at the Appellate Division level (unless the Legislature quickly amends Section 1091).

Predictably, most youth returning to foster care are those who had been placed pursuant to child protective proceedings, but the option is equally vital for those youth in the juvenile justice system. As the Supporting Memorandum for chapter 342 stated:

Although the Family Court Act permits [foster youth] to consent to continued foster care with its attendant supports and services until they reach the age of 21, many make precipitous decisions to show their independence and refuse to consent to remain in care even when they are desperately in need of assistance. Youth living in intact families are not faced with such decisions; they may leave home to attend college, but they do not abruptly terminate all connections with their families and often continue to receive financial and other aid. Youth leaving foster care, in contrast, often have no family to fall back on. For them, independent living may be akin to falling off a precipice.

(Assembly Mem in Support, Bill Jacket, L. 2010, c. 342 at 8). The well-documented problems faced by these youth - increased incidence of school drop-out, homelessness, unemployment, criminality and teen pregnancy - are even more likely to afflict the vulnerable juvenile justice population upon discharge from care. In its memos to the Governor regarding chapter 342, both the Division of the Budget and OCFS noted the additional costs to counties from these adverse consequences that would be averted by permitting the option for youth to reenter foster care. See Memo of Division of the Budget and Letter from OCFS General Counsel, Bill Jacket, L. 2010, c. 342. Codification of Matter of Jefry H. through enactment of this measure, therefore, will provide a cost-effective avenue to support a particularly vulnerable population as they make the difficult transition to independent adulthood.

This measure, which would have no fiscal impact upon the State, would take effect immediately.

Legislative History: None. New proposal.

{1}Federal foster care assistance under Title IV-E of the Social Security Act became available as of October 1, 2010 pursuant to the Fostering Connections to Success and Increasing Adoptions Act of 2008 [Public Law 110351].


Text

STATE OF NEW YORK ________________________________________________________________________ 4529 2013-2014 Regular Sessions IN SENATE April 8, 2013 ___________
Introduced by Sen. FELDER -- (at request of the Office of Court Adminis- tration) -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families AN ACT to amend the family court act, in relation to reentry of former foster children into foster care THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 6 of section 355.3 of the family court act, as amended by chapter 663 of the laws of 1985, is amended to read as follows: 6. Successive extensions of placement under this section may be grant- ed, but no placement may be made or continued beyond the respondent's eighteenth birthday without [the child's] HIS OR HER consent and in no event past [the child's] HIS OR HER twenty-first birthday. A RESPONDENT, WHO HAS BEEN PLACED WITH A LOCAL SOCIAL SERVICES DISTRICT PURSUANT TO SECTION 353.3 OF THIS CHAPTER, INCLUDING A DISTRICT THAT HAS AN APPROVED "CLOSE TO HOME" PLAN, AND WHO DOES NOT CONSENT TO REMAIN IN CARE BEYOND HIS OR HER EIGHTEENTH BIRTHDAY, AS WOULD BE REQUIRED IN ORDER TO REMAIN IN CARE, MAY MOVE OR, WITH HIS OR HER CONSENT, MAY BE THE SUBJECT OF A MOTION BY A SOCIAL SERVICES OFFICIAL TO REENTER FOSTER CARE IN ACCORD- ANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND NINETY-ONE OF THIS ACT. S 2. Subdivision (f) of section 756-a of the family court act, as added by chapter 604 of the laws of 1986, is amended to read as follows: (f) Successive extensions of placement under this section may be granted, but no placement may be made or continued beyond the child's eighteenth birthday without his or her consent and in no event past his or her twenty-first birthday. A CHILD, WHO HAS BEEN PLACED WITH A LOCAL SOCIAL SERVICES DISTRICT PURSUANT TO SECTION SEVEN HUNDRED FIFTY-SIX OF THIS CHAPTER, AND WHO DOES NOT CONSENT TO REMAIN IN CARE BEYOND HIS OR HER EIGHTEENTH BIRTHDAY, AS WOULD BE REQUIRED IN ORDER TO REMAIN IN CARE, MAY MOVE OR, WITH HIS OR HER CONSENT, MAY BE THE SUBJECT OF A
MOTION BY A SOCIAL SERVICES OFFICIAL TO REENTER FOSTER CARE IN ACCORD- ANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND NINETY-ONE OF THIS ACT. S 3. Section 1091 of the family court act is amended by adding a new subdivision (d) to read as follows: (D) FOR PURPOSES OF THIS SECTION, "FORMER FOSTER CARE YOUTH" SHALL INCLUDE A YOUTH UNDER THE AGE OF TWENTY-ONE WHO DID NOT CONSENT TO REMAIN IN FOSTER CARE BEYOND HIS OR HER EIGHTEENTH BIRTHDAY, AS WOULD BE REQUIRED IN ORDER TO REMAIN IN CARE, AND WHO HAD BEEN PLACED IN FOSTER CARE PURSUANT TO ARTICLE THREE, SEVEN, TEN, TEN-A OR TEN-C OF THIS ACT OR SECTION THREE HUNDRED FIFTY-EIGHT-A OF THE SOCIAL SERVICES LAW OR WHO HAS BEEN FREED FOR ADOPTION IN ACCORDANCE WITH SECTION SIX HUNDRED THIR- TY-SIX OF THIS ACT OR SECTION THREE HUNDRED EIGHTY-THREE-C, THREE HUNDRED EIGHTY-FOUR OR THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW BUT WHO HAS NOT YET BEEN ADOPTED. S 4. This act shall take effect immediately.

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