Court of Appeals ends foster care program

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New York state’s highest court has ruled that a foster care program was improperly created by the Office of Children and Family Services (OCFS).

OCFS administratively created the Host Family Home program to function as an alternative to the state’s statutory voluntary foster care system.

In a recent decision, the New York State Court of Appeals ruled that OCFS “lacked the authority to do so.”

OCFS enforces child welfare laws and supervises the state’s foster care system. OCFS administers a voluntary foster care system that allows parents to temporarily place their child in the custody of an authorized agency without forfeiting their parental rights.

The agency places the child with a foster family and parents are generally entitled to reassume custody of their children at their discretion, according to the recent Court of Appeals decision.

Before parents place a child in temporary foster care, OCFS is required to offer preventive services to help resolve issues so that the child won’t need to be separated from the family home. One of the preventive services offered is temporary care and supervision of a child.

By regulation, OCFS can only offer respite care for up to 30 days at a time, or up to seven weeks per year. OCFS must investigate whether any known family or friends could take care of the child before authorizing placement and must place siblings in the same foster home unless joint placement would not be in their best interests.

The voluntary foster care statutes also mandate judicial involvement and oversight at several key junctures.

First, OCFS must petition Family Court to approve any placement expected to last longer than 30 days. If placement lasts for at least eight months, the Family Court Act requires that Family Court hold a hearing to assess the child’s wellbeing in the foster home and determines what further action would serve the best interests of the child.

These hearings must be held every six months, until termination of the placement, or until the child ages out of foster care.  Both parents and children are entitled to assigned counsel during these proceedings.

In 2021, OCFS established the Host Family Home program, which designates an authorized host family home agency, which purportedly entitles the agency to independently board out children with a host family, according to the decision.

Parents can contact any host family home agency directly to request placement for their child. The agency then identifies a potential host family that could care for the child.

If the parent agrees with the placement, they sign a “Declaration of Person in Parental Relation,” which authorizes the host family to house the child and make certain decisions on their behalf.

Parents can place their children for up to six months at a time, which can be extended for six-month increments until the child turns 18, under the program.

Parents retain legal custody of their child and can demand their immediate return at any time. There is no requirement for judicial intervention of any kind, and no assigned counsel for parents or children.

In 2022, three legal services organizations that contract with state agencies to represent children in voluntary foster care proceedings filed an Article 78 petition to annul the Host Family Home program, claiming it was promulgated contrary to law and in excess of OCFS’s regulatory authority.

“The Host Family Home regulatory program must be annulled because it undermines the carefully designed foster system and contravenes various critical statutory protections the legislature saw fit to include in that system,” Judge Anthony Cannataro wrote for the panel.

“The statutory foster care system is the product of decades of legislative reform intended to strengthen and standardize the state’s previous informal foster care regime,” he wrote.

“The Social Services Law lists every specific type of out-of-home placement an authorized agency is allowed to engage in, including conventional foster care, therapeutic foster care, group homes, and boarding houses. The Host Family Home program, as a creature of regulation rather than statute, is not on the list,” he wrote.

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