Relates to the reentry of former foster care children into foster care; repealer

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

This measure would clarify one aspect of the statute that has caused some confusion, i.e., the categories of former foster youth to which the statute applies. "Former foster care youth" is not defined in Family Court Act 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 juvenile delinquents or Persons in Need of Supervision (PINS). This measure would remedy that gap by amending the post-dispositional provisions regarding extensions of placement in the juvenile delinquency and PINS statutes (Family Court Act §§ 355.3, 756-a(f)) to include references to Family Court Act § 1091. It would further amend section 1091 of the Family Court Act to add a definition of "former foster care youth" explicitly including youth placed in foster care with local social services districts pursuant to juvenile delinquency, PINS, child protective or destitute child adjudications and voluntary placements, as well as children freed for adoption but not yet adopted, whose guardianship and custody have been transferred to a local social services district or authorized child care agency. It would not include juvenile delinquents discharged from placement with the New York State Office of Children and Family Services (OCFS).

This measure would codify the only appellate ruling on the statute to date and is consistent with the position taken by OCFS, the oversight agency for foster care in New York. The Appellate Division, Second Department, in Matter of Jefry H., 102 A.D,3d 132 (2nd Dept., 2012), 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 section 1091 of the Family Court Act 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 former foster care youth placed with local departments of social services. See 11-OCFS ADM-02 (March 3, 2011) at pps 2, 7.

Professor Merril Sobie, in his 2012 Practice Commentary to section 1091, indicated that "(t)he 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 ofjefty H., Prof. Sable continued: It would have been preferable if Article 10-8 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 who have been placed with local social services districts. 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.

2013 Legislative History: VETO #226 (Senate 4529-B (Senator Felder)/Assembly 7339 (M. of A. Lupardo))

*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).