Relates to medical treatment for abused, neglected and destitute children

Article 10-C of the Family Court Act was enacted to ensure that a destitute child - defined in section 1092(a) of the Family Court Act as a child "in a state of want or suffering due to lack of sufficient food, clothing, shelter, or medical or surgical care" - would receive the judicial oversight, services and, where placement out of the home is necessary, permanency planning efforts that are afforded to all other categories of youth in foster care. See L. 2011, c. 605; L. 2012, c. 3. As part of that enactment, section 398(1)(c) of the Social Services Law was amended to direct social services officials to "assume charge of and provide care and support" for destitute children who cannot remain at home, petitioning the court where necessary for temporary custody during the pendency of the case and placement as a disposition. See Family Court Act §§ 1094,1095. Significantly, in order to qualify for Federal foster care assistance under Title 1V-E of the Social Security Act, destitute children, who require temporary or long-term placement out of their homes, must be treated identically to other foster children, thus requiring periodic permanency hearings that must focus, inter alga, upon their safety and well-being.

Provision of adequate medical diagnosis and treatment is essential to ensuring the well-being of destitute children who require placement in foster care. Subdivision six of section 398 of the Social Services Law provides that "as to all foregoing classes of children," including destitute children, local social services commissioners must provide "expert mental and physical examination of any child whom (they have) reason to suspect of mental or physical disability or disease," as well as "necessary medical or surgical care in a suitable hospital, sanatorium, preventorium or other institution or in his (or her) own home for any child needing such care..." However, section 383-b of the Social Services Law, which authorizes local social services commissioners to "give effective consent for medical, dental, health and hospital services" for abused and neglected children in their care, was not amended to provide comparable authority with respect to destitute children. Even though many destitute children are unaccompanied minors whose parents are deceased, residing in other countries or whose whereabouts are unknown, local commissioners of social services are hampered in their ability to fulfill their obligation under Social Services Law § 398(6) to provide needed medical treatment if they are not clearly authorized to give consent for such treatment. Cases have arisen, in particular in New York City, in which this gap in the statute has impeded the provision of necessary services to destitute children in foster care whose parents are unavailable, not living or not able to be contacted to provide needed consents.

We propose this measure to resolve the apparent conflict between sections 383-b and 398(6) of the Social Services Law. The measure

would simply amend section 383-b of the Social Services Law to add destitute children to the categories of children for whom local commissioners of social services may provide consent. It would also enumerate the temporary and dispositional placement statutory provisions applicable to destitute children (Family Court Act §§ 1094, 1095).

This measure is critically important in order for the destitute child legislation to effectively fulfill its intent to ensure adequate care of children who may be in desperate need. As Professor Merril Sobie recognized in his Practice Commentary, while recognizing that the universe of children falling into the category of destitute child is limited, "for the relatively small number of youngsters who meet the definition, the benefits may be huge." (McKinney's NY Laws, Family Court Act § 1092, Practice Commentary).

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

Legislative History:

None. New proposal.