Relates to notification procedures for the transfer of a child from one foster home to another

When the family court has directed pursuant to FCA §1017(2)(a)(iii) or §1017(2)(b), or pursuant to FCA §1055(a)(i), that the child shall reside in a specified kinship or non-kinship foster home, the agency may not change the child's placement without prior court approval except in an emergency and certain other specified circumstances.

When the court has not issued an order specifying a foster care placement, the agency may change the child's placement without prior court approval, but is required to provide advance notice as soon as practicable after a determination has been made to change the placement, and in no event later than ten days prior to removal of the child from the present foster care placement. Notification must be made by phone, e-mail or facsimile transmission. The notice must contain the date the change of placement will take place, the reasons for the change, and the name and phone number of a social services official who may be contacted for further information. If timely notice is not provided, the agency may not change the placement until at least ten days after notice has been provided in the manner required. Advance notice also must be provided, to the court and to the child's attorney, when the agency has made a determination to trial discharge the child to the parent(s) or other person(s) legally responsible for the child. Neither prior court approval nor advance notice is required when emergency removal is necessary, nor when the foster parent has requested removal of the child or a sibling of the child, nor when the parent(s) or other person(s) legally responsible for the child and the child's attorney have consented to removal, nor when the agency has previously provided, on the record in family court, notice of a change of placement. Whenever advance notice is not required, notice must be provided as soon as practicable after removal.

Section Two adds a new subdivision (g) to § 358-a(3) of the Social Services Law which contains like notice requirements, and also closes a gap in the statute by providing the court with authority to direct that the child shall reside in a specified kinship or non-kinship foster home.

Section Three adds a new subparagraph (I) to § 1089(d)(2)(viii) of the Family Court Act which closes a gap in the statute by providing the court with authority to direct that the child shall reside in a specified kinship or non-kinship foster home.

Section Four adds a new § 1091 to the Family Court Act which contains notice requirements applicable after a child has been freed for adoption.

Existing law

There is no statutory provision requiring notice before or after a change of foster care placement.

Justification

The subject child in a proceeding brought pursuant to Article Ten of the Family Court Act has a statutory right to counsel under FCA § 249(a). The child also has a right to counsel under the Due Process Clause of the New York State Constitution, which includes the right to the effective assistance of counsel. Matter of Jamie TT., 191 AD2d 132 (3rd Dept. 1993). Before the court proceeds, the child's attorney must be present. FCA § 1042. Indeed, the child's right to counsel is of such magnitude that, if the family court proceeds to a hearing in the absence of the law guardian, it is usually grounds for reversal on appeal. See, e.g., In re Chad D., 261 AD2d 322 (1st Dept. 1999). As well, the child has important liberty interests at stake in an Article Ten proceeding. The removal of a child from parental custody constitutes a seizure for Fourth Amendment purposes. Tenenbaum v. City of New York, 193 F3d 581 (2d Cir. 1999). Also important - not to mention life-altering and potentially traumatic for the child - is a determination made by the court, or by the custodial agency, to change a child's foster care placement. The child's need for the assistance of counsel when such decisions are made is critical. Remarkably, however, the Family Court Act provides the child with no protection when the agency changes the child's placement without court approval. The family court does have the authority to order the agency to place the child in a specific foster home. FCA §§ 1017(2)(a)(iii), 1017(2)(b); In re Brandon A., 50 AD3d 395 (1st Dept. 2008); Matter of Shinice H., 194 AD2d 444 (1st Dept. 1993). However, it is more common for the court to remand or place a child into the custody of the agency without any specification, which leaves the agency free to move the child from one location to another, subject only to a foster parent's right to contest a removal through procedures in the Social Services Law and related regulations, which do not include any requirement that the attorney for the child be notified or be allowed to participate. Unfortunately, it is common practice for custodial agencies to move children from one foster care placement to another without notifying the court, the respondent's counsel, or the attorney for the child. Often, the child is removed from a home in which he or she has resided for a substantial period of time, and often the caretaker is a relative. The attorney for the child may not learn that the child has been moved until the next court appearance. By that time, an improper decision may already have caused emotional harm to the child.

Similarly, the respondent parent/guardian has a statutory right to counsel under FCA § 262(a)(i), and a State constitutional right to the effective assistance of counsel. Matter of Ella B., 30 NY2d 352 (1972). At any time prior to termination of parental rights, and particularly when the permanency planning goal is reunification of the family, the respondent has a compelling interest in the safety and well-being of the child in foster care, and thus a change of placement is a critical stage of the proceeding at which the respondent should have the full benefit of counsel, and, if the respondent so desires, a meaningful opportunity to be heard before the change is made.

The family court also has a compelling need for advance notice. The court may have issued orders in reliance on its assumption that the child would continue to reside in a particular home. The court may have chosen, or approved of, that home for a good reason. The court needs advance notice so that it can intervene if it sees fit to prevent or postpone the move, or at least issue necessary protective orders.

The Family Court Act provides the family court with broad authority to oversee foster care placements and issue orders directing agencies to take appropriate action designed to facilitate family reunification and the protection of children. It make little sense, therefore, to continue to deprive family court judges, and the parties, of an opportunity to have input into one of the most critical decision an agency can make - the decision to uproot a child and move him/her to a new home or facility - before the move is completed.

Legislative history

New bill.

FISCAL IMPLICATIONS :: To be determined

Effective date

90th day after becoming law.