Creates article 10-C of the family court act relating to destitute children; repealer

This measure would establish "destitute child" as a discrete category of Family Court proceeding, with attendant due process protections, including right to counsel, for parents and children. It would specifically authorize temporary placements, as well as dispositional alternatives of release to the parent or parents, placement with the county social services agency, relatives or other suitable individuals or custody with relatives or suitable individuals. Similar to Family Court Act § 1017, the measure would authorize the Family Court to direct the social services agency to investigate other parents, relatives or other suitable persons. If such persons are found satisfactory and if removal of the child is determined to be necessary to prevent imminent risk to the child, the court would be authorized to place the child with such persons on a temporary basis. Analogous to Family Court Act § 1015-a, the Court would be permitted to direct agencies to provide services, to the extent authorized under their comprehensive annual service plans, to assist destitute children and their families in ameliorating the conditions that gave rise to the need for court intervention. Where a destitute child is placed as a disposition, the placement would be reviewed, as are all other placements, through permanency hearings under Article 10-A of the Family Court Act and the child and family would have all of the rights to services and planning applicable under the permanency statute. Similar amendments would be made to section 398 of the Social Services Law to delineate the responsibility of local social services departments to provide care and support for destitute children and, in appropriate cases, to petition the Family Court.

Finally, this measure would repeal Family Court Act § 1059, as it is anachronistic, conflicts with more recent legislation regarding abandoned children and erroneously implies that termination of parental rights proceedings should be routinely filed in situations involving destitute and abandoned children. Section 1059 provides that children found to be abandoned are to be "discharged" to the custody of the local commissioner of social services, who must care for them as "destitute" children or "as otherwise provided by law"and requires Family Court to direct the local commissioner to institute proceedings to terminate parental rights. The term "discharged" appears misplaced in this context, since the dispositions available for destitute children, including placement with, but not "discharge to" the local commissioner of social services, are delineated in proposed Family Court Act .1095. However, contrary to language in Family Court Act .1059, termination of parental rights proceedings should not be mandatory either for abandoned or destitute children, as alternatives, including provision of preventive services or placements with

relatives or other suitable persons, may well be more appropriate to the children's best interests in particular cases. Thus, section 1059 of the Family Court Act should be repealed.

Prior to enactment of the landmark permanency legislation [L. 2005, c. 3), proceedings to initiate and review the placement of destitute children in foster care were commenced by petitions pursuant to Social Services Law §392. The repeal of that statute left destitute children without any procedural vehicle for placement into foster care, where necessary, and for periodic review of that placement. Significantly, repeal of that section left destitute children and their parents without access to counsel and thus without an effective means of requesting appropriate services. This measure would create a new no-fault cause of action in a new Article 10-C of the Family Court Act to supply that procedural vehicle. As the definition of "destitute child" in Social Services Law §371 specifies, a child may be destitute through no fault of the parents, i.e., where parents are deceased or where there are no parents who can be held financially responsible for the child's support. "Destitute child" is thus defined in proposed Family Court Act § 1092(a) to mean a child who is not subject to a child protective proceeding under Article 10 of the Family Court Act, "is without a parent or person legally responsible to sufficiently care for him or her, and is in a state of want or suffering due to lack of sufficient food, clothing, shelter, or medical or surgical care." These children do not fall into any other category: they are not abused or neglected, persons in need of supervision, juvenile delinquents or voluntarily placed, but many do need the assistance of social service agencies and periodic oversight from the Family Court to ensure permanence, stability and provision of necessary services. In addition to ensuring access to Federal foster care reimbursement under Title IV - E of the Social Security Act, this measure would provide the procedural vehicle for fulfilling the New York State Constitutional mandate to provide care and assistance to the needy. See N.Y. Constitution, Art. XVII.

Moreover, in these difficult fiscal times, this measure is critically important to relieve counties from shouldering 100% of the costs of furnishing foster care to destitute children. While carrying no fiscal implications at all for New York State, it will permit county social services districts to qualify for Federal foster care reimbursement for approximately half of the costs of care for destitute children who qualify for Federal Title IV-E foster care assistance. But more important, the measure would provide a vehicle for regular Family Court oversight over the permanency planning efforts made by counties on behalf of destitute children, thus resulting in a quicker exit from foster care and achievement of permanency for these children.

This measure would take effect immediately.

2011 LEGISLATIVE HISTORY: Senate 5694 (Saland) [Judiciary] Assembly 7836 (M. of A. Paulin, et al) [Codes]