Provides that out-of-home placement of child with emotional, behavioral or mental disorder, or a disability shall not be grounds for transfer of custody

Summary of provisions

Section one would add a new paragraph (g) to subdivision 3 of § 358-a of the Social Services Law to provide that the court may approve a petition by or agreement with a social services official for temporary placement based on child service needs for the provision of necessary services for the child's emotional, behavioral or mental disorder, or mental or physical disability, without the transfer of custody, which provides that the social services official shall maintain the care and custody for the child. The social services district must be assigned overall responsibility for placement and care of the child, including actual or active supervision of the development of an individual case plan, periodic review of the case plan, review of the appropriateness and suitability of the plan, and ensuring proper care and services to facilitate return to the child's home or other alternative permanent placement.

Section two would add a new paragraph (i) to subdivision 2 of § 384-a of the Social Services Law to provide that a social services official may accept a temporary placement of a child for the provision of necessary services for a child's emotional, behavioral or mental disorder, or mental or physical disability, without the transfer of custody, provided that the social services official shall maintain responsibility for the care and custody of the child. The social services official shall have responsibility for the placement and care of the child, including but not limited to either actual or active supervision of the development of an individual case plan, periodic review of the case plan and review of the appropriateness and suitability of the plan and placement, and ensuring that proper care and services are provided to facilitate return to the child's home or other alternative placement.

Section three would provide that the Office of Children and Family Services (OCFS) shall amend its internal policies, make every effort to ensure that local social services districts comply with the provisions of this act and amend its regulations to implement this act.

Section four would provide that OCFS shall submit two reports to the Governor and the Legislature - one report 18 months after the effective date of this act and the second report 36 months after the first report. This section also outlines what data should be included in the reports.

Section five provides for an immediate effective date.

Existing law

Current law provides that when a parent or guardian of a child seeks out-of-home placement through the local department of social services for a severely disabled child, the parent or guardian must relinquish custody to the county.

Justification

Each year, many parents of severely disabled children in New York State are forced to make a difficult decision. Current Social Services Law requires a parent or guardian to relinquish custody of their severely disabled child to the county social services commissioner in order to obtain an out-of-home placement so that the child can receive needed services.

The prerequisite to relinquish custody is only required when the child enters the human services system through a county social services agency and is not required if the child enters the system through another agency, such as a mental hygiene agency. Historically, the responsibility of social service agencies has been to protect children from abusive parents and, in those cases, custody relinquishment may be appropriate. But in the case where a parent or guardian is actively seeking help for their child through social services, it is inappropriate to require that they give up custody of their child in order for the child to receive services.

The federal Department of Health and Human Services requires that a child be in the "placement and care responsibility" of the state in order to receive federal funding. The federal government, however, has never required a legal custody transfer in order to satisfy this requirement. At least 11 other states (Colorado, Connecticut, Idaho, Iowa, Maine, Minnesota, North Dakota, Oregon, Rhode Island, Vermont and Wisconsin) have enacted similar legislation without a loss of federal funds. Consequently, the state faces no loss of federal funds with the enactment of this legislation.

Legislative history

1/28/05 - A.2650 referred to Assembly Children and Families 4/18/05 - A.2650 passed Assembly 4/18/05 delivered to Senate 4/18/05 - S.4941 referred to Senate social Services, Children and Families 1/4/06 - died in Senate 1/4/06 - A.2650 committed to Assembly Rules 2/6/06 reported 2/6/06 rules report cal.267 2/6/06 ordered to third reading rules cal.267 2/8/06 - A.2650 passed Assembly 2/8/06 delivered to Senate 2/8/06 - S.4941 referred to Senate social Services, Children and Families 5/14/07 - A.927, passed Assembly, delivered to Senate, referred to Senate Social Services, Children and Families Committee 1/9/08 - A.927, died in Senate, returned to Assembly 2/4/08 - A.927, passed Assembly, delivered to Senate, referred to Senate Social Services, Children and Families Committee 1/28/09 - A.3727, referred to Assembly Children and Families Committee 1/6/10 - A.3727, referred to Assembly Children and Families Committee 01/21/11 - A.2896 referred to children and families 01/04/12 - A.2896 referred to children and families

Fiscal implications

None.

Effective date

Immediately.