This report has benefited from the work of many people. The Committee Chairs, Assemblymen Roger L. Green, Anthony J. Genovesi, and William L. Parment, were the guiding lights. Their direction drove the Committees' work. Their probing and thoughtful questions to staff doing the research and to persons testifying at the Committees' hearings revealed their deep-seated commitment to New York's children in need.

The principal researcher and drafter was Virginia Rosenbloom, Policy Analyst with the Committee on Oversight, Analysis and Investigation. The breadth of work she performed was far-reaching, ranging from reading hundreds of pages of testimony and in-depth studies, audits and court documents, to continually following up with agency personnel, and in the process, discovering critical information. Throughout the course of the study -- from scoping out the project to adding finishing touches to the report itself -- Andrea Zaretzki, Oversight Committee Director provided direction, support and editorial review. Also critical throughout the project's development was Assemblyman Green's Counsel, Sania Metzger, Program and Counsel Analysts Chrishan Wright and subsequently Maria Toro, and David Lansner, Counsel to the Children and Families Committee for Program and Counsel. A number of Oversight Committee staff were involved at one point or another, helping out with research, editing, hearing preparations, or legal questions: Tom Fox, Julie Ruttan, Michael Benjamin, Rudyard Edick, Echo Cartwright and Mark Hennessey. Other Assembly staffers lending a hand included Michele Dickey, Maureen Schoolman, Bonnie Linscott, and Beth Harbour. Kristin Proud-Parry and Mitzi Glenn of Ways and Means staff helped out on fiscal issues. Program and Counsel Team Leader Don Robbins, Program Development Director John Hudder, and Deputy Director Janet Manella provided thoughtful guidance and insight along the way.

In addition to Assembly staff, the knowledge and efforts of many State agency and judicial personnel, as well as citizen advocates, were tapped in the research efforts. Staff of the State's Office of Children and Family Services and New York City's Administration for Children Services, in particular, were asked a great number of questions; Committee Chairs and staff received answers to many of those questions. County Social Services Commissioners from across the State provided valuable information and expertise.

Thanks to all.

A big, strong man reaching out his hand to help a scared, lonely child -- is an image that remains in the minds of those who have been involved in this report.

Assemblyman Anthony Genovesi was a powerful, strong and successful man. His ability in the rough and tumble of electoral politics is legendary in New York. He reveled in the struggle and he was very, very good at it.

But, the acquisition of political power was not an end unto itself for Tony. He passionately believed that strong and successful people have a responsibility to use their power to help people who are not so big and not so strong.

Children who cannot live with their parents are among the most vulnerable in society. Tony believed that protecting children in foster care is a fundamental, moral obligation of government--and of those who hold governmental power.

In the Fall of 1997, Assemblyman Roger Green, Chairman of the Assembly Committee on Children and Families, asked Tony to work with him in figuring out what the problems in foster care are, and how to fix them. Tony undertook the task, in his role as Chairman of the Oversight, Analysis and Investigation Committee. And, he pursued the subject of foster care with vigor, intelligence and determination.

Children languishing in foster care, stuck in abusive situations, or cut off from needed services were just plain unacceptable to Tony. Bureaucratic difficulties, budgetary constraints, and computer snafus were inadequate explanations for the wasting away of children's lives.

Much of what appears in this report is directly attributable to Assemblyman Genovesi. Sadly, Tony was not able to finish the job with Assemblyman Green; he died on August 11, 1998. Tony's friend, and successor as Oversight Committee Chairman, Assemblyman William Parment, has taken up the task.

This report is dedicated to Assemblyman Anthony Genovesi and to his resolve to help.

TABLE OF CONTENTS

DEDICATION

CHAIR'S LETTER

EXECUTIVE SUMMARY

BACKGROUND

Overview of the Study

Issues Areas Covered by the Study

I. LACK OF OVERSIGHT BY STATE & LOCAL AGENCIES

Findings

Recommendations

II. RECENT STATE LAWS

Findings

Recommendations

III. FINANCING

Findings

Recommendations

IV. AGENCY ADMINISTRATION

Findings

Recommendations

V. PROVISION OF SERVICES

Findings

Recommendations

NOTES

Dear Reader,

It is with a sense of urgency and concern that we issue this report, LOSING OUR CHILDREN: An Examination of New York’s Foster Care System.

Following the tragic loss of a number of children to child abuse and neglect and in response to the growing concern over the status of children in our State foster care system, the Assembly Committee on Children and Families and the Committee on Oversight, Analysis and Investigation launched a formal investigation of this serious topic and held a series of hearings.

This report represents the culmination of this investigation. It includes an abundance of data, analysis and recommendations pertaining to the Child Welfare System by incorporating primary source materials from hearings, legislative proposals being considered and studies by other public officials (e.g., Comptroller Carl McCall).

While the findings in this report paint a picture of a child welfare system in which our most vulnerable children are lost in a dysfunctional and underfunded bureaucracy, it also outlines a number of legislative and policy recommendations that if implemented would lead to real reform.

It is our sincere hope that this report will spur action. It is our intention that this report will contribute to insuring safe homes and safe families for our State’s most vulnerable children.

Sincerely,

Society has an obligation to protect its children from abuse and neglect. To meet this responsibility, federal and State laws have been enacted which establish programs to protect children, including providing temporary foster care when it is dangerous for a child to remain with his or her parents. However, recent trends indicate that foster care is far from temporary. According to the New York State Office of Children and Family Services (OCFS), of the 52,270 children in foster care as of December 31, 1997, the median length of stay was about 3 years, compared to 2 years nationally, and double what it was in New York in 1993.

In addition to these disturbing statistics, reports of breakdowns in New York's foster care system have become a common occurrence, either through news accounts of children who continue to be abused, or as a result of audits or other studies that have identified problems in the system. Taken together, these reports and statistics indicate that the systems that have been set up to serve as a safety net for our children are failing.

In response, the Assembly Committees on Children and Families and Oversight, Analysis and Investigation conducted a comprehensive examination of the State's foster care system, within the broader context of the child welfare system as a whole. The Committees sought to answer the following questions:

The Committees requested information from various State and local agencies, reached out to child welfare advocates, and drew upon many recent studies as primary sources of information. In March, 1998, the Committees held public hearings across the State on the reasons for long stays in foster care. Committee staff then did further research and requested input for legislative proposals from various stakeholders.

This report deals with specific issue areas, identified by the Committees' research and outreach efforts, that impact on the foster care system. Highlighted below are key findings raised in the report, as well as administrative and legislative recommendations.

Facing these issues and fixing the problems is critical as the State undertakes the new requirements of the federal Adoption and Safe Families Act of 1997 (ASFA). Also, since the State Family and Children's Services Block Grant expired on March 31, 1999, the Legislature must now decide on a new funding mechanism that will address the failure of the block grant and help improve the system.

Contrary to its statutory mandate, the State Office of Children and Family Services (OCFS or the "Office") has traditionally left program operations to the local districts, without ensuring that federal and State laws are implemented and children are well served and protected.

Numerous State Comptroller audits have found a lack of oversight and monitoring by the State over local districts, and by the districts over the agencies with which they contract.

Recent lawsuits against New York City and New York State child welfare officials point to inadequate City and State agency oversight of foster care programs.

The Office has continuously failed to impose fiscal sanctions against local districts, despite its assertion that sanctions are one of its tools for monitoring district operations. As designed, the Office's computerized sanction reports fail to adequately monitor key activities required by Law.

A November, 1998, court order directs New York to report to the Federal Government on its monitoring activities related to sanctions, unless State law is amended to no longer require them.

The Executive now proposes eliminating the sanctions provision altogether, without recommending an alternative oversight mechanism.

Statutorily required reports to the Legislature on key programs are routinely not prepared by OCFS.

Because the Statewide child welfare computer system known as CONNECTIONS has not been fully implemented, it is not fulfilling one of its intended purposes: to enhance oversight and monitoring activities.

Administrative

OCFS must revise its approach to the supervision and monitoring of child welfare services. Instead of its traditional hands-off approach, it must add or shift personnel to significantly increase its supervision of the local districts to ensure that State policies are being implemented as intended and that children and families are being served.

Fiscal sanctions should be reinstituted, and rigorously and quickly enforced, so districts will see a direct correlation between their actions and the sanctions. State funds withheld as a result of sanctions should be redirected into program areas where there is the greatest need, and should only be available to the districts upon submission of a corrective action plan that is monitored by the State.

OCFS must prepare reports as required by law, not only to keep the Legislature apprised as to the implementation of key policies, but also to provide feedback regarding program successes and failures. Without such information, the Legislature cannot make informed decisions regarding continuing programs that the Executive has proposed in the State budget.

The Committees recommend that the State Comptroller monitor the provisions of recent court settlements involving City and State agency foster care operations and oversight.

Legislative

A Commission on Children's Services should be established in New York with the power to: investigate all actions by local social services districts and other children's programs, recommend changes, and take immediate remedial action. A.6973 (Green) would establish such a Commission to oversee all children's services under OCFS, the Office of Mental Health, and the Office of Alcoholism and Substance Abuse Services. This would address some of the inconsistencies and inefficiencies of the current system across agency boundaries, and create more accountability for agencies responsible for protecting our children.

Local citizen review panels should be established in local social services districts with oversight and review powers as recommended by the federal Child Abuse Prevention and Treatment Act (CAPTA). Legislation being introduced in the Assembly would establish and fund seven such panels.

Legislation passed this year by the Assembly (A.5550; Parment et. al.) would help streamline agency reporting requirements, while ensuring that important information is provided to the Legislature.

A number of recent demonstration projects aimed at specific child welfare issues were either never implemented or were cut short before an evaluation was done (e.g., decentralization of child welfare services in New York City and the Homerebuilders program). This failure can be attributed in part to a lack of State involvement and oversight. To the extent that these laws are not fully implemented, the problems they were meant to address continue. It is also more difficult to apply the lessons that could have been learned from the demonstration projects Statewide.

The federal Adoption and Safe Families Act (ASFA), and New York's enabling legislation (Chapter 7, Laws of 1999), will have a significant impact on the operations of every aspect of New York's child welfare system, from local districts and contract agencies, to the State agency and the Family Court. Much coordination and effort will be needed to implement the new requirements, especially in light of existing problems raised in this report.

Administrative

New York City's Administration for Children's Services (ACS) should finally institute a decentralization program as envisioned by the Legislature in 1996. The program should: provide adequate community-based preventive, child protective, foster care and adoption services; coordinate child welfare services with community schools and other programs; follow nationally recognized staffing ratios; and include a thorough evaluation.

As advocated in the Assembly's ASFA compliance bill (A.962; Green et. al.), OCFS should conduct a study of the socio-economic factors and procedural or policy biases which result in racial and/or ethnic disparities in the treatment of families and children in the system. This would enable the Office to understand and address the disparate influence race and ethnicity play in child welfare decisions. The Office should also require on-going cultural competency and sensitivity training of all administrators, supervisors and caseworkers.

Because of the complexities involved in implementing the requirements of New York's ASFA compliance law, the Legislature should monitor this effort to ensure that the law is being implemented as intended.

Most problems can be traced to huge cuts in available funds resulting in a decrease in overall services, as well as a new competition among types of services for a fixed amount of funds. The block grant was intended to provide increased flexibility to local districts to do such things as provide less expensive preventive services. But as implemented, it failed to provide this flexibility. Instead, stays in foster care increased and preventive programs were cut.

The block grant also failed because the Office did not enforce the State's preventive services Maintenance of Effort (MOE) requirement. Such services are intended to avert or shorten stays in foster care. Local districts have routinely not met the State's MOE, and have instead shifted funds away from these services.

New York is the only state not to have met the federal Maintenance of Effort for family preservation and support services. Since 1997, the State has forfeited $33 million in federal funds, and is now poised to lose another $18.5 million for FFY 1999-2000.

Traditional per-diem reimbursements to foster care agencies may provide a disincentive for these agencies to move children to permanency and reduce foster care stays.

Low caseworker salaries have resulted in high employee turnover, affecting quality of care for children and families, disrupting permanency efforts, and resulting in longer foster care stays.

The State-set hourly rate paid to court-appointed attorneys representing children and their families is inadequate to ensure proper representation.

Administrative

The Office should closely monitor the implementation of New York City's planned capitated funding demonstration project, to ensure that the program adheres to accepted standards of service. Such a project should be examined as a way to encourage front-end services and to prevent or reduce foster care stays. The required evaluation should provide valuable lessons for Statewide implementation.

Legislative

The State's Block Grant for Family and Children's Services should be allowed to expire on October 1, 1999, rather than the original expiration date of March 31, 1999. This would give local districts and the State time to transition to a new financing mechanism.

The State should return to an uncapped reimbursement system for child welfare services, in which the State and locals will share the non-federal cost of foster care and other services, and that will provide an enhanced reimbursement for preventive services. This will eliminate the competition among service areas that has arisen under the block grant and will take into account changes in child welfare caseloads that are beyond a local district's control.

Several key areas that must receive increased funding in order to improve services are:

-- Increased salaries and training for caseworkers

-- Decentralization of comprehensive services in communities

-- Legal services, including the Legal Services for Families program, and increasing assigned counsels' fees

-- Up-front prevention and early intervention programs

Resources must be appropriated to better ensure compliance with ASFA including: training of relevant State and local agency and judicial personnel; hiring additional Family Court judges and staff in order to adhere to expedited hearing requirements; and legal representation for parents.

Recent staff reductions, in part due to cuts in State funding under the block grant, have caused remaining staff to take on added duties and resulted in caseloads well above accepted standards. This leaves less time for service provision and supervision, and less time for workers to devote to each case.

Lack of State monitoring of district staffing levels has resulted in widely varying caseload ratios across the State, with many districts significantly exceeding standards set by the Child Welfare League of America, a nationally recognized child welfare organization. This calls into question the Office's ability to ensure that adequate services are being provided across the State -- a responsibility it holds under the Law.

The Office fails to ensure that qualified, trained workers at the local level are prepared to provide critical services to children and families. Lack of caseworker knowledge regarding State policies and basic services available to children and families (e.g., housing subsidies, kinship foster care) has resulted in longer stays in foster care.

Ongoing problems with the development of the Statewide CONNECTIONS computer system is indicative of lax State monitoring, and has resulted in new problems for children and families.

-- Inadequate system planning and testing due to a rush to meet federal deadlines has led to implementation delays and additional costs to the State.

-- Lack of user input during software development has resulted in widespread design problems and made the system unreliable.

-- Inaccuracies in the State Central Register of Child Abuse and Maltreatment (SCR) have delayed response time to calls to the Child Abuse Hotline and put children at further risk.

-- When fully implemented as designed, CONNECTIONS is expected to double caseworkers' record keeping time, leaving less time to work directly with children and families.

-- The Office has failed to adequately monitor the project, resulting in cost overruns and further delays, with no public plan for fixing the problems.

Children and families often experience delays in obtaining agency referrals to substance abuse programs and other support services.

Inadequately prepared or late-filed petitions by agencies for Family Court hearings contribute to delays in the system. Children linger in foster care while they await court action. High Family Court caseloads, lengthy and frequent postponements, and court practices further contribute to delays in moving children through the foster care system. These problems will be exacerbated by ASFA's hearing requirements.

Agency administrative delays in achieving adoption milestones cause many adoptions to take longer than necessary.

A significant gap exists in State law and regulations for investigating a prospective foster parent's prior history as a foster parent. Without a formal mechanism in place to check on the prior history of an applicant, and to follow up with any previous agencies that may have dealt with him or her, another agency could certify the applicant without knowing about or evaluating past problems.

Administrative

The Office needs to improve its oversight of district staffing levels, and at a minimum should assess local needs and set staffing priorities for local districts to ensure that services can be effectively provided.

The Caseworker Education Program should be revived and made permanent, so child welfare staff can count on continued funding to complete their MSW degree. In its FY 1999-2000 budget resolution, the Assembly has included a $1 million appropriation for this program.

As the Office continues to develop and implement CONNECTIONS, management should increase its oversight of the project as a whole, particularly in the area of contract management. Any additional work not covered by existing contracts should be subject to competitive bidding. Further, user involvement should be expanded throughout the design and testing phases, and user training at all levels must be increased.

The Office should share with the Legislature its plan for the continued development of the CONNECTIONS system, and provide quarterly status reports on its implementation.

As part of its overall reorganization, OCFS should be looking to streamline administrative procedures, ensure that all child welfare workers are aware of State policies, and enforce these policies and procedures at the local level.

To ensure that planned reforms are actually put in place, the Committees recommend that the State Comptroller monitor the implementation of ACS' "Plan of Action" and OCFS' restructuring efforts and report to the Legislature with its findings.

Legislative

The number of Family Court judges across the State should be increased. This will greatly speed and improve court decisions, and help handle the additional proceedings that will result from ASFA. To address this issue, legislation has been introduced that would add 24 new Family Court judges and 8 new multibench county court judges across the State (A.6886-A; Weinstein, et. al.).

Despite evidence supporting the effectiveness of preventive services in averting or shortening foster care stays, there has not been adequate support for these services Statewide. In addition to institutional failures to plan for and provide such services, barriers to access abound.

Because of the emphasis on foster care over preventive services, many fear short term foster care is being used as a preventive service.

Although parental substance abuse exists in approximately 75% of all abuse and neglect cases, inadequate services are available, and there are numerous barriers to existing programs.

Mental health, dental and medical services for children are inadequate around the State, referrals to services are slow, and services are not provided equitably to all children in foster care.

Caseworker contacts with children, parents and foster parents, and visitation between parent and child, do not occur as required by State regulations. When these contacts are not made, children may be at risk in their foster care placements, or reunification efforts may be delayed.

Open adoptions, which offer parents the chance to maintain contact with their children, are currently allowed under State law. However, this option is seldom used, partly due to a reluctance by caseworkers or the parents' legal counsel.

Administrative

A greater emphasis must be placed on developing and funding innovative substance abuse treatment services, particularly for women with children. The Family Rehabilitative Programs with their drug treatment components should be revived in New York City and expanded elsewhere.

The Assembly's FY 1999-2000 budget resolution includes $9.5 million for residential and non-residential treatment programs targeted toward women with children, in an effort to avert foster care stays and assist in family reunification efforts.

The Office should apply for federal authorization to develop a demonstration project that would identify and address parental substance abuse problems that result in foster care placements. Such demonstration projects are authorized under ASFA.

Additional efforts must be made to find homes for hard to place children with a goal of adoption who are currently waiting in foster care, and to finalize the adoptions for those already placed in pre-adoptive homes. Such efforts will also be necessary to meet the requirements of ASFA.

The Office should issue clear guidance to local districts and contract agencies regarding all adoption options, and follow up to ensure they are being offered to parents. This information should be incorporated into the caseworker training curriculum. The Office should encourage open adoptions as a viable permanency option where appropriate.

Legislative

-- A.6972 (Green) would provide for the disclosure of identifiable and sealed adoption and foster care records to adult adoptees when such disclosure is approved by the biological parents. This would protect the privacy rights of parents who wish to remain anonymous while promoting interaction between parents and their children.

-- A.4230 (Green, 1997-98) would give a parent who has surrendered a child pursuant to an open adoption standing to petition the court to enforce the rights reserved in the surrender.

The Families in Transition Act (A.7646; Green) would enhance permanency planning for families affected by HIV/AIDS. This bill would help the thousands of children orphaned by AIDS in New York to avert foster care. It would provide needed transitional and legal services to families, legal custodians and other informal caregivers. A key provision would ensure maximum financial support to the surviving children.

Kinship guardianships should be established as a permanency alternative to adoption for families caring for the child of a relative in kinship foster care placements. These permanent legal guardianships would give the guardian the same authority as the biological parent to make important decisions on behalf of the child. A.4829 (Green, et. al.) would enact such a provision, and would allow kinship guardians to collect monthly adoption subsidies from the local districts. The State should apply for a Title IV-E waiver, authorized under ASFA, to pay for the federal share of the subsidy.

BACKGROUND

Society has an obligation to protect its children from abuse and neglect. To meet this responsibility, federal and State laws have been enacted which establish programs to protect children, including providing temporary foster care when it is dangerous for a child to remain with his or her parents. However, recent trends indicate that foster care is far from temporary. Furthermore, child welfare experts generally agree that when children spend long periods in foster care, often in several different homes, they do not have the benefits of a stable, permanent, loving environment, which in turn could have long term ramifications on their development.

Nationally, the number of children in foster care has been steadily increasing since the mid-1980's, and now totals approximately half a million(Note 1, hereafter referred as (n)). By contrast, in New York the foster care population peaked in 1991 at 63,850(2), and has been gradually declining since. Although this decline appears to be good news for New York, in recent years there has been an increase in the length of time children spend in New York's foster care system, which calls into question the effectiveness of the "temporary" nature of foster care and the outcomes for these children.

According to the New York State Office of Children and Family Services (OCFS)(3), of the 52,270 children in foster care as of December 31, 1997, the median length of stay was about 3 years(4), compared to 2 years nationally(5), and double what it was in New York in 1993(6).

In addition to these disturbing statistics, reports of breakdowns in various aspects of New York's foster care system abound, either through news reports of individual tragedies or as a result of audits or other studies:

There have been tragic accounts of children who are "known to the system" continuing to be abused. This includes: children in families that are being monitored by child protective services; children in foster care homes; and children who have been returned to their parents only to face continued abuse.

Numerous State Comptroller audits have revealed deficiencies in service provision and a lack of oversight by State, regional and local social service authorities.

A team of court-appointed experts found that in New York City's child welfare system, many legally required services are not being provided to children and their families.

Some of these breakdowns can be traced to cuts in funding and a resulting cutback in services. For example, under New York's Family and Children's Services Block Grant instituted in 1995, the total amount of State funds available to localities for child welfare has been reduced from pre-block grant levels. In response to this decrease in State funding, local social services districts have cut services to children and their families, particularly preventive services. Some child welfare experts maintain that the reduction in up-front services to families (e.g., drug treatment for parents and other preventive services) has caused children to enter foster care unnecessarily, and resulted in greater lengths of stay once they enter the system.

Racial and ethnic disparities in New York's child welfare system have been well-documented. In general, African-American, Latino, and Asian families are treated far differently by the system than white families. For example:

-- African-American children are twice as likely as white children to be taken away from their parents following a confirmed report of abuse or neglect(7).

-- One out of 22 African-American children in New York City is in foster care, compared to 1 out of 59 Latino children, and 1 out of 385 white children(8).

-- As of the end of 1997, 54.3% of children in foster care in New York City were African-American, 18.2% were Hispanic, 2.4% were white, and 25.1% were other or unknown(9).

-- Race has a significant association with length of stay in foster care; African-American children had approximately 30% less chance of leaving foster care than other children(10).

-- Children from families with annual incomes below $15,000 are over 25 times more likely than children from families with annual incomes of $30,000 to have been harmed or endangered by abuse or neglect. This is particularly alarming to the Latino community, because in 1996, almost 75% of Latino children were born into poverty - a higher percentage than any other ethnic group(11).

The bottom line is that the systems set up to serve as a safety net for our children are failing. The length of time children spend in care is increasing and the quality of services they receive is decreasing.

These statistics and reports of a system in crisis prompted the Assembly Committees on Children and Families and Oversight, Analysis and Investigation to conduct a comprehensive examination of the State's foster care system, within the broader context of the child welfare system as a whole. The significant data made available through many recent independent studies served as a valuable primary Committee source.

The Committees sought to answer the following questions:

What factors affect the length of time children spend in New York's foster care system?

What actions should be taken to reduce length of stay in foster care?

The answers to these questions are especially important as New York undertakes the challenges of the federal Adoption and Safe Families Act of 1997 (P.L. 105-89), known as ASFA, which has as its focus reducing length of stay in foster care and expediting permanency for children.

In attempting to answer these questions, the Committees realized that it is important to look at the child welfare system holistically. Because of the complex, interdependent nature of the components of the system (e.g., child protection, prevention, foster care and adoption services), issues and problems involving one component often have an impact on the other components.

Furthermore, the broad nature of the Committees' inquiry revealed that there are

many factors, involving various components of the system, that contribute to longer stays in foster care. For example:

On the front end, policies involving child protective services can have an impact on the number of children being removed from their homes and entering foster care.

A lack of up-front preventive services for at-risk families can precipitate unnecessary removals, resulting in an increase in the number of children placed in foster care.

On the back end, delays in finalizing adoptions can cause foster children with a goal of adoption to wait in foster care for years.

The Committees attempted to keep the broader child welfare picture, and the interrelationship between various aspects of the system, in mind as the examination proceeded. Although many aspects of the child welfare system are touched upon in this report, a more in-depth analysis of some of these areas may need to be pursued later as a separate study.

The goal of this study is to gain an understanding of the problems within New York's foster care system, and to improve outcomes for children by identifying areas where legislative and administrative action may be taken to bring about meaningful reform and help reduce stays in foster care.

To better understand the problems within the foster care system, Committee staff reviewed recent reports, audits and evaluations(12), and followed up on issues that arose in the press during the study period. The Committees reached out to child welfare advocates to help identify problems and possible solutions. They also requested information and clarification of certain policies from the State's Office of Children and Family Services (the "Office"), New York City's Administration for Children's Services (ACS), and the U.S. Department of Health and Human Services/Administration for Children and Families.

In March, 1998, the Committees held public hearings across the State on the reasons for long stays in New York's foster care system. Witnesses testified on such areas as oversight by State and local agencies; recent laws enacted to improve the system; funding of child welfare services and provision of these services; agency administration; the role of the Family Court; and the availability and accuracy of information. Committee staff then did further research based on the hearing findings, and requested input for legislative proposals from various stakeholders.

The following five sections address specific issue areas identified by the Committees' research and outreach efforts, that impact on the foster care system, especially length of stay in foster care. Background information is presented, as well as a summary of the Committees' findings. At the end of each section, the Committees have identified legislative and administrative recommendations which address these findings. The sections include:

I. Lack of Oversight by State and Local Agencies

II. Recent State Laws

III. Financing

IV. Agency Administration

V. Provision of Services

I. LACK OF OVERSIGHT BY STATE AND LOCAL AGENCIES

The Committees found overwhelming evidence of inadequate oversight by State and local social services agencies. This is significant because it casts a shadow over the agencies' ability to ensure that State laws and regulations intended to help children and families and reduce length of stay in foster care are being followed.

This section discusses in general the lack of State oversight of local districts, and the lack of district oversight (particularly that of New York City's Administration for Children's Services -- ACS) of their own operations and those of voluntary agencies. Specific oversight issues and findings relating to the various components of the system are further explored under appropriate topical areas in this report.

Under State law, the Office of Children and Family Services (Office) is responsible for administering and overseeing child welfare programs. Specifically, the Office shall "supervise all social services work, as the same may be administered by any local unit of government and the social services officials thereof within the state".(13) The Office is further authorized "to establish rules, regulations and policies to carry out its powers and duties".(14)

The State agency culture leaves operations to the districts, without ensuring that laws are being implemented and children are being well served.

Despite its statutory mandate, the Office has traditionally taken a hands-off approach toward monitoring district operations. At the Committees' Albany hearing, Elie Ward, Executive Director of Statewide Youth Advocacy, expressed her frustration after years of inaction by the State agency, despite its legal mandate to provide oversight:

To address a state system that encompasses the operations of local districts that each have their own unique strengths and weaknesses, consistent, accountable and strong state oversight is...the only option....[I]t is unrealistic to expect that the system which provides services to children will also be able to investigate, control, and improve itself. In the current child serving systems, there is no incentive to fully assess the magnitude of the problems, nor is there any imperative to force change, resolve problems or provide high quality care for children.(15)

Although Ms. Ward agreed that the State should oversee the operations of the local districts, she cited several reasons why the State does not assume its oversight responsibilities, among them: that the State agency is not comfortable with investigating and overseeing itself internally, and the culture has never been to provide real oversight in monitoring of local systems.(16)

John Stupp, representing the Office, disagreed with these charges, testifying that the regional office staff are in local districts and agencies every day, reading case records.(17) However, this is not what recent State Comptroller audits reveal.

Most of the recent audits by the State Comptroller of child welfare programs found monitoring and oversight by the Office to be lacking.

- An audit of the adoption subsidy program found that neither the Office nor its regional offices formally monitor local district operations to ensure they comply with State laws and regulations and Office policies regarding this program.(18)

- Another audit found that the Office does not monitor the deployment of child welfare caseworkers in local districts. Caseloads vary significantly from district to district, and often exceed standards recommended by the Child Welfare League of America.(19) Without information on staffing levels in local districts, it is difficult for the Office to assess whether the district is able to provide the services required by law.(20)

- The Comptroller also found that the Office does not adequately monitor compliance with State regulations related to caseworker qualifications, training and supervision, to ensure that effective services are provided.(21)

- In an audit of the State's kinship foster care program, the Comptroller found that there was no process in place to monitor districts' use of kinship care and caseworkers’ search for relatives as required by State law.(22)

- An audit of New York City's Child Welfare Administration (the predecessor to the current Administration for Children's Services -ACS) found that the City agency needed to improve oversight of contract agencies to ensure their compliance with all applicable State and City laws, rules and regulations governing foster care. The audit found that the lack of compliance has contributed to children being in foster care longer than necessary. (A follow up audit two years later found that most recommendations had not been implemented.)(23)

Sometimes, instead of directly addressing an audit recommendation, the Office defers to the City to respond, effectively abdicating its oversight responsibility. There is little indication that the Office follows up to ensure the City has taken necessary corrective action. Some examples:

- Several recommendations in the November 1996 kinship foster care audit required the Office to ensure that ACS takes various actions to improve its operations. The Office deferred to ACS, which finally submitted an "action plan" to the Office in September 1997. (This followed numerous requests by the Committees for updates to the audit's findings - prompted by the fact that the Office's 90-day response to the audit was virtually identical to its earlier response to the draft report.) This corrective action plan, submitted almost a year after the audit report was issued, does not address all of the recommendations pertaining to ACS operations, particularly those relating to casework contacts. Furthermore, it is not clear what follow-up action will be taken by the Office to monitor the corrective actions.

- In the caseworker deployment audit mentioned above, the Comptroller found that almost 500 ACS caseworkers were actually assigned administrative or support responsibilities. The audit recommended that all ACS caseworkers should perform casework functions in order to reduce caseload ratios to within national standards, and that ACS should work with the Office to determine the status of these employees. In it's audit reply, the Office quotes ACS' response to the audit findings, without comment or indicating any further action.

A recent federal class action lawsuit against New York City and New York State child welfare officials (Marisol A. v. Rudolph W. Giuliani, referred to throughout this report as the Marisol case) asserted widespread failures by the City and State to adequately protect and serve children in the New York City child welfare system. In the course of this case, a judicially appointed team of experts was ordered in January, 1997, to conduct three studies evaluating the operations of ACS during 1996. The studies examined investigations by ACS of cases reported to the Child Abuse Hotline; services provided in cases where abuse was found; and case management and services provided to children in foster care.

All three reports pointed to major flaws in the City's operation. The reports were so damaging that Mayor Giuliani tried, unsuccessfully, to block their release to the public. Some key findings of the reports include:

In 25% of child abuse investigations, caseworkers closed investigations when children were still at risk of abuse.

In 31% of investigations, workers failed to adequately assess whether a child was safe within 24 hours of the report to the child abuse hotline, as required by law.

43% of children that remained with their families, supposedly under the City's watch, were mistreated again.

Caseworkers improperly closed cases 30% of the time, wrongfully deciding the children were no longer at risk.

Services to avert foster care were provided in only 60% of the cases in which they were needed.

Gaps in case management were identified in 70% of cases, including lack of supervisory review and oversight, and requests for services that were not provided.

26% of foster children with medical, dental or mental health needs did not receive services. 48% of children in group settings had unmet needs.

None of the State time frames for moving children to permanency through adoption were met.

In December, 1998, settlement agreements were reached with the City and State. The extensive oversight provisions in these settlements clearly point to the need for improved City and State agency oversight and monitoring of child welfare operations and services.

-- The City settlement appoints an independent panel of experts which will assess ACS' performance and issue recommendations and timetables for improving services and agency administration.

-- The State settlement cites the Office's "authority and responsibility to monitor and supervise the operations of local social services districts and officials within New York State". In this capacity, the Office is required by the agreement to:

establish a separate NYC Regional Office with a staff of 41 to monitor and supervise child welfare services in New York City and the operations and practices of ACS, as well as the implementation of any corrective actions.

review ACS' child protective, preventive and foster care case records "to determine ACS' compliance with applicable laws and reasonable casework practice", and direct ACS to take appropriate corrective action.

use reasonable efforts to implement an accurate and reliable Statewide computer system at the earliest practicable date (see discussion of CONNECTIONS below).

All of these mandates are functions that the State and City clearly should already be doing under existing State law.

In November, 1998, the City and State settled another lawsuit (United States ex. rel. Graber v. The City of New York, et al., referred to in this report as the Graber case) at a cost of $49 million, which alleged that the agencies fraudulently collected millions of federal foster care dollars without providing mandated services. This case not only points to inadequate State oversight, but also illustrates the fiscal ramifications for such inaction.

The lawsuit charged that City officials developed a plan whereby caseworkers filed false casework reports on hundreds of children in foster care, instead of providing the services these children needed to protect them and move them into permanent homes (e.g., caseworker visits, interviews with foster children, monitoring families, and periodic case reviews). Under the settlement, the State is to pay $35 million, while the City will pay $14 million.

The settlement also requires the City and State to provide information to the Regional Office of the federal Administration for Children and Families (ACF) for the next 3 years, including:

copies of all final reports, prepared in-house and by external sources, including audits, that address the nature and quality of the State's or local districts' case planning and management of foster care cases.

monthly data on local districts' compliance with section 153-d of the State Social Services Law (described more fully below).

copies of any new City and State foster care policies and procedures issued.

once the Office's CONNECTIONS child welfare computer system is finally implemented, the Office is required to provide ACF with a computer terminal so it can access data on foster care cases.

Clearly, these requirements are intended to provide detailed information to the federal government so it can closely monitor the State's and local districts' (particularly ACS') compliance with federal and State laws -- a function the State should already be doing.

In March, 1999, another lawsuit was brought by Brooklyn Legal Services on behalf of a group of parents with children in foster care in New York City. The lawsuit charges that the City and several of its contract agencies fail to: involve parents in the development and review of their childrens' service plans, inform parents of case conferences, allow parents to bring a representative with them to the conference, and provide parents with copies of the service plans, in violation of the State Social Services Law and regulations. Parental involvement in such plans is important for reunification efforts because the planning process provides parents with information about what steps they must take to be reunited with their children.

This lawsuit once again faults the State for failing to monitor and supervise the City and its contract agencies to ensure they comply with State law and regulations.

Background. Section 153-d of the New York State Social Services Law lists certain statutory timeframes and requirements which, if they are not met by local districts, will result in the withholding of State funds (i.e., sanctions). Some examples include failure to file timely petitions with the Family Court; failure to prepare a child's service plan according to schedule; or failure to comply with a court order. This law was intended to serve as an oversight mechanism to hold local districts accountable for the implementation of key State child welfare policies.

Several of the sanctionable offenses will take on new importance as the State is faced with the new requirements of the federal Adoption and Safe Families Act (ASFA). While section 153-d requires monitoring of State timeframes, many of these have changed as a result of ASFA. The State will now need to track these provisions to ensure it is in compliance with ASFA’s shortened timeframes.

For example, it is a sanctionable offense under section 153-d if a petition for court review of a child's foster care status is not filed on a timely basis (due at least 60 days before the end of the placement period). Under ASFA, such hearings are required within 12 months of a child's placement in foster care, rather than within 18 months as was previously required. Thus, the State must ensure that these petitions are filed even earlier.

Another sanctionable offense is failure to prepare a timely family service plan and to comply with the requirements of the plan. Monitoring such compliance to ensure that required services are provided will become even more important under ASFA. This is because petitions to terminate parental rights must now be filed when a child has been in foster care for 15 out of the most recent 22 months unless, among other things, the agency has not provided required services.

As currently administered, the sanctioning process is an inadequate oversight tool. The Office has developed computerized reports to detect non-compliance with the provisions of section 153-d. The reports are based on data entered by the local districts into the State's computer system for tracking children in foster care. If the statute's requirements are not met per these reports, sanctions are to be imposed by the Office.

The Office has often cited this Section 153-d Sanctioning Process as an effective monitoring tool to ensure compliance with State laws, and it has repeatedly been the Office's answer to audit deficiencies cited by the State Comptroller.

The Comptroller found, however, that the Section 153-d Sanctioning Process does not live up to the Office's claims. Not only are the sanction reports poorly designed, but when violations are identified, sanctions have rarely been imposed. Specifically:

Section 153-d sanctioning is a computerized process whereby districts could be sanctioned if certain transactions are not entered on the OCFS computer system. This process does not provide assurance that the activities were actually completed, were completed properly or that adequate supervision is occurring.(24)

Another audit found that Section 153-d Sanctioning is not adequate to track children eligible for listing in the adoption Blue Book, as required by law:

We found the Department's [Section] 153-d monitoring system provides limited assurance that districts meet the requirements of the law.(25)

In response to recommendations that New York City's ACS improve certain case tracking and monitoring procedures, the Office maintained that these recommendations are addressed through the Section 153-d Sanctioning Process. The Comptroller disagreed:

While this sanctioning process was in place during our audit, the components of this recommendation were not fully addressed by it. Further, Department correspondence shows that the process may not be working as intended.(26)

Although the Office's official audit responses claim the Sanctioning Process is effective, its own staff disagree. At the Albany hearing before the Assembly Committees, the Commissioner's representative, Donald Smith, said:

The exercise of...sanctions, historically, have not been regularized in the sense that sanctions were imposed on...a regular monthly basis....I don't view it as totally useless, but it is limited.(27)

Moratorium on sanctions has rendered them meaningless. A three-year moratorium on sanctions beginning January 1, 1994, was enacted into law in 1995, in part to give local districts a chance to comply with the new State block grant requirements. The moratorium expired on March 31, 1997, although throughout the following year, no sanctions were imposed. The Governor's 1998-99 budget proposed extending the moratorium for an additional four years. The Assembly, however, insisted on reducing the extension to just one additional year, through March 31, 1999. No sanctions have actually been imposed since 1995, although reports on district compliance continue to be generated by the Office.

The Office was also statutorily required to submit a separate report to the Governor and the Legislature by January 1, 1997, setting forth each district's compliance with Section 153-d during the moratorium period, and recommending whether reimbursement should be denied to any district based on the district's actions during this period. When the moratorium was extended, another such summary report was required by January 1, 1999.

The Office has failed to produce either report, despite repeated requests by the Committees and repeated promises that they were forthcoming. In a January, 1998, letter to the Committee Chairs, Commissioner Johnson said regarding the report due January 1, 1997:

The report on district compliance in accordance with Section 153-d of the Social Services Law was not completed by the former Department of Social Services. Upon learning of this oversight, I will forward a copy to you.(28)

As this report went to print, over a year later, the Committees still had not received this information from the agency. As a result, the Legislature does not have critical information regarding districts' compliance with these important laws intended to protect and care for children.

The State’s recent settlement in the Graber case provides that if section 153-d is amended, altered or repealed within the three year period during which the State is otherwise obligated to provide sanction data to the federal government, the State will no longer be obligated to provide this data.

The Governor's 1999-2000 budget, submitted after this settlement, proposes extending the moratorium through December 31, 2003, bringing the total moratorium period to 10 years. The proposal does not recommend an alternative oversight mechanism. The Governor's budget also proposes amending section 153-d to eliminate the monitoring and reporting requirements; no rationale for this action is provided.

In addition to the sanction reports mentioned above, numerous other statutorily required reports were requested of the Office as part of the Committees' initial research. These reports, on such topics as the implementation of demonstration projects and the restructuring of the Office itself, are intended to provide the Legislature with information and feedback relating to policies and initiatives the Legislature enacted into law. Such information aids the Legislature in making future decisions regarding these programs.

As noted throughout this report, most of the requested reports were never prepared by OCFS or its predecessor, DSS, and the Office continually stalled in informing the Committees of this fact by saying they were forthcoming.

CONNECTIONS: Statewide computer system has not addressed oversight concerns and program deficiencies.

Since 1995, the Office has been developing and implementing a Statewide Automated Child Welfare Information System, known as CONNECTIONS. The system is intended to be a single, Statewide integrated system for the recording of child protective, preventive, foster care and adoption service information. The system is to be used by the Office, local social services districts, and voluntary agencies to maintain vital information on child welfare cases, to aid local staff and supervisors in decision making, and to oversee program implementation. The system is also expected to generate meaningful reports to aid the Office in monitoring local districts' compliance with laws and regulations. At the time this report went to print, CONNECTIONS was being implemented, albeit behind schedule and with many problems.

Issues related to the implementation of CONNECTIONS and its impact on length of stay are addressed in the Agency Administration section of this report. This section deals with CONNECTIONS as a monitoring/oversight tool.

The Office has maintained that once CONNECTIONS is up and running, it will provide an effective monitoring tool that will also correct deficiencies identified in State Comptroller audits. In other words, the problems will persist until CONNECTIONS is fully operational.

In a recent audit of caseworker qualifications, training and supervision, the Comptroller recommended that the Office "[e]nsure...supervisors review and approve case management activities." Supervisory review is a key factor in ensuring that appropriate case decisions are made. The Department responded that CONNECTIONS' Release 4 will address this issue.(29) (These staffing issues are further discussed under the Agency Administration section of this report.)

Regarding kinship foster care, the Comptroller recommended in November, 1996, that the Office "[e]nsure that the districts monitor the progress of parents and children in attaining their goals." In a letter to the Committee Chairs, former DSS Commissioner Brian Wing noted that:

With Release 4 of CONNECTIONS, we will begin implementation of a case management system providing the framework for all child welfare cases in New York State....The CONNECTIONS system will have many features expressly designed to monitor the progress of parents and children in attaining their goals.(30)

Despite these promises, Release 4 - originally scheduled for release by August 1997 - had not been implemented when this report went to print. Because of ongoing developmental issues and widespread user dissatisfaction, the Office has not even been able to set a schedule for the implementation of this critical component. Problems with the earlier releases were still being addressed as well.

To the extent that key components of CONNECTIONS are not fully implemented, basic oversight activities such as supervisory review and monitoring of casework activities are being put off. Although CONNECTIONS may serve as an effective oversight and monitoring tool when it is fully implemented, interim solutions are needed.

The Office must revise its entire approach to the supervision and monitoring of child welfare services. The Office has historically concentrated on issuing extensive regulations and manuals governing all aspects of child protection, prevention, foster care and adoption. It has taken a hands-off approach to actual supervision and monitoring of the local districts' implementation of these instructions, contrary to its duties under State law. The Office must add or shift personnel to significantly increase its supervision of the districts. The alternative is not only to allow the local districts to continue to fail the families they are supposed to serve, but also to invite federal and State court intervention into the State's affairs.

While fiscal sanctions are not a perfect tool, when imposed they can have a very real effect on local districts and should increase compliance. Sanctions should be reinstituted and rigorously enforced. They must also be quickly enforced, so that districts see the direct correlation between their actions and the sanctions. Sanction reports should be redesigned to be more meaningful (e.g., including evidence that activities were done and were subject to supervisory review).

State funds withheld as a result of sanctions should be redirected into areas of the child welfare system where the need is greatest, such as preventive services. In order for a local district to get the sanction funds back, it should submit a corrective action plan which must be monitored by the Office.

There is a serious question as to whether the Office can ever fully fulfill its oversight role. New York should establish a Commission on Children's Services with the power to: investigate all actions by local social services districts and other children's programs, recommend changes, and take immediate remedial action in both specific cases and on a program-wide basis.

A.6973 (Green) has been introduced to establish such a Commission to oversee all children's services under the Office of Children and Family Services (OCFS), the Office of Mental Health (OMH), and the Office of Alcoholism and Substance Abuse Services (OASAS). The intent of this initiative is to address some of the inconsistencies and inefficiencies of the current system across agency boundaries, and to create more accountability for agencies responsible for protecting our children.

Local citizen review panels should be established in local social services districts with oversight and review powers as recommended by the federal Child Abuse Prevention and Treatment Act (CAPTA). Legislation being introduced in the Assembly to comply with the requirements of CAPTA would establish and fund seven such panels.

The Office must prepare reports as required by law, not only to keep the Legislature apprised as to the implementation of key policies, but also to provide feedback regarding program successes and failures. Without such information, the Legislature cannot make informed decisions regarding continuing programs that the Executive has proposed in the State budget.

Legislation passed this year by the Assembly (A.5550, Parment et. al.) would help to streamline agency reporting requirements, while ensuring that important information is provided to the Legislature for decision-making.

In order to ensure that the oversight provisions of the recent court settlements discussed above are being carried out, the Committees recommend that the State Comptroller monitor their implementation.

II. RECENT STATE LAWS

A major overhaul of New York's child welfare laws occurred with the Child Welfare Reform Act of 1979. Since then, additional State laws were enacted to address new issues and problems, including New York's legislation to comply with the 1997 federal Adoption and Safe Families Act (ASFA). The intent of each of these laws was to improve the system and, ultimately, outcomes for children.

As part of the Committees' study, some of these laws were reviewed to determine whether they are being implemented as intended, and whether the goals the Legislature had in mind when they were enacted are being accomplished. Of particular concern is the degree to which the provisions have been enforced by the Office, ensuring that State policy is being carried out. To the extent that a provision has not been implemented, the underlying problem that precipitated the law may continue to exist.

Described below are several recent State laws and the problems they were intended to alleviate. These laws established demonstration projects in New York City and elsewhere, which are limited programs or "pilots" designed to be used as a learning tool before expanding a program Statewide. Such projects generally involve an evaluation, which is useful both for learning whether the program was effective and for planning full-scale implementation.

This provision (§398-d of the Social Services Law) required that at least three Child Welfare Community Demonstration Projects be established in local communities in New York City. The intent of this initiative was to provide child welfare services on a community level, rather than through agencies that cover a broader geographical area (e.g., across boroughs). This was expected to remove some of the traditional barriers to service experienced by many families.

Decentralized, integrated child welfare services - located in the communities they serve - are considered preferable to centralized services. Such community-based child welfare services are intended to: give caseworkers greater knowledge of the community, its residents and community-based services; increase the availability of caseworkers and reduce their travel time; enable children in foster care to remain in their own communities and schools and maintain their friendships; enable children in foster care to have greater visitation with their parents; provide for more effective delivery of preventive services; expedite adoptions; and reduce the amount of time children spend in foster care.(31)

The law required New York City to implement the demonstration projects by March 1, 1996, for a period of at least two years. However, more than three years after this deadline, integrated neighborhood-based services have yet to become a reality in the City. In response to the Committees' inquiries, the Office referred them to ACS for an update on the status of the program and a timetable for its full implementation.

ACS' implementation. Instead of implementing the demonstration projects three years ago, ACS now plans to phase in decentralized services on a city-wide basis through a Request for Proposal (RFP) process, starting with the Bronx. In March, 1999, ACS announced its contract awards for voluntary agencies in the Bronx seeking to provide preventive, foster care and adoption services on a decentralized basis. The City anticipates that these initial contracts will go into effect July 1, 1999, with the other boroughs to follow over several years, after learning from the experience with the Bronx.

According to the Council of Family and Child Caring Agencies (COFCCA), a significant number of voluntary agencies which were awarded contracts in the Bronx have been re-assigned to new community districts outside the communities where they have established deep ties and long historical experiences. This raises a concern about the role that community-based history and program-specific factors played in the contract award process.

Had the demonstration projects been up and running for two years as required by law, lessons could have already been learned and city-wide implementation would be in place by now. Instead, only one of five boroughs is expected to be operational by 1999. Children and families in the other boroughs cannot expect to benefit from such community-based services until much later.

State enforcement. The State agency's apparent hands-off monitoring of State law made it easier for these delays to occur.

As part of its oversight responsibilities, the Office is required to supervise local districts to ensure that State laws are being followed. However, the Office too often ignores this monitoring responsibility when deferring to local districts' (including ACS) implementation of such policies.

At the Albany hearing, OCFS Acting Deputy Commissioner Donald Smith admitted that little progress was made in implementing the demonstration projects in New York City when Catherine Croft headed up the City's Child Welfare Administration (the predecessor to ACS), and more delays ensued when Nicholas Scoppetta became ACS Commissioner:

We knew and he [Scoppetta] knew that this was on the books, but it fell by the wayside in terms of his organizational efforts.(32)

Citing the growing number of children who slip through the cracks and continue to languish in foster care without needed services, Assemblyman Green concluded:

[W]e need to see a more active interventionist role on the part of state government. The Office of Children and Family Services is the ultimate agency that has responsibility for...holding local government accountable to the laws of the state...And they have not seen fit to implement them.(33)

This provision (Social Services Law § 398-a(4)) authorized the Office to establish a three-year demonstration project using capitated rates to fund foster care instead of the traditional per diem payments. It gives agencies the flexibility to provide comprehensive services to a family, including up-front services when a child is first placed in foster care, and after-care services once a child is discharged. The law also required the Office to submit annual status reports and a final evaluation of the program to the Legislature. The intent of Homerebuilders was to improve service delivery in a cost effective manner, and to provide incentives for agencies to move children into permanency - thereby helping to reduce the amount of time children spend in foster care.

A demonstration project was established in New York City involving six foster care agencies, and by most accounts was showing great promise. However, the program was discontinued by the City before its completion. None of the required status reports of the program were done by the Office. At the March 18, 1998, hearing, OCFS Assistant Commissioner Bill Baccaglini told the Committees that the final report, which is to set forth the findings of the project and any recommendations for statutory or regulatory changes, should be available in about a week. The Committees never received the report, despite repeated requests to the Office.

Witnesses testified that the Homerebuilders program showed promise in moving children out of foster care more quickly. Fred Brancato, of the Council of Family and Child Caring Agencies, told the Committees that during the first two years of operation, Homerebuilders had resulted in a 10% reduction in length of stay.(34) ACS Commissioner Nicholas Scoppetta thought that length of stay was reduced by about seven percent, and said there was some improvement in services. He indicated that:

[W]e certainly have learned a good deal from that [Homerebuilders] experience, and we have people who are still running agencies who participated in that program.(35)

Little Flower Children's Services, one of the six agencies involved in Homerebuilders, published a report in December, 1994, on the early success of the program at that agency. After 16 months, 38% of the children in Homerebuilders had been reunified with their families, compared to 23% in the control group. Just under 10% of children in Homerebuilders had a goal change to adoption, compared to 23% in the control group. In addition, caseworker turnover was lower in the Homerebuilders program.(36)

It therefore came as a surprise when Commissioner Scoppetta's predecessor canceled the program. This action is particularly baffling since OCFS Commissioner Johnson also acknowledged the program's successes, and told the Committee Chairs that he anticipates using the program to shape models for preventive services under the federal Title IV-E waiver recently granted to New York.(37) This waiver gives the State greater flexibility to use federal Title IV-E foster care funds, in 10 demonstration projects throughout the State, for preventive and other services. Commissioner Scoppetta also plans to use the program as a model for another pilot in New York City involving capitated rates. It is unfortunate that both of these programs are being planned without benefit of an analysis of the data from the original demonstration project.

The Office's failure to require ACS to complete the Homerebuilders Demonstration Project -- and its failure to prepare a meaningful evaluation before proposing to extend portions of it to other programs -- exemplifies the Office's lax oversight of the implementation of State policy and its failure to provide required reports.

These provisions, enacted initially as demonstration projects, were made permanent in 1995. Their purpose is to provide housing subsidies to families either to assist in the discharge of children from foster care, or to prevent children from entering foster care. The benefits include cash grants of up to $300 per month, for a period of not more than three years. These grants are separate from any other type of public assistance for which a family may be eligible.

A lack of affordable housing is a primary barrier to family reunification, and contributes to placements in foster care. For example, a recent report by New York City CASA found that lack of housing was a reason for entry into foster care for 17% of children placed in kinship homes, and 22% of children placed in non-relative foster homes.(38) The study further found that only 26% of these families received any type of preventive services prior to placement.(39) Housing subsidies represent a cost-effective way to avoid foster care placements, or to shorten stays in foster care.

According to an August, 1996, study by the New York City Comptroller, which examined the implementation of this program in the City's Child Welfare Administration (now ACS):

We have been advised that frequently, case managers [City employees] and case planners [employees of foster care agencies] are unfamiliar with the procedures to be followed, eligibility criteria and the required documentation....CWA rarely adheres to its own stated procedures and time frames.(40)

The study also found numerous deficiencies in CWA's procedures for processing subsidy requests, which have resulted in backlogs and delays to recipients. As a result of the Comptroller's recommendations, CWA streamlined these procedures.(41)

However, at the Committees' March, 1998, hearing, several witnesses testified about continuing problems in the City. Lauren Shapiro of Brooklyn Legal Services Corp. testified:

Remarkably, despite the number of years the program has existed, case workers at foster care agencies and at ACS are still unaware that the subsidies exist or how to access them. ACS recently underwent a revision of how the subsidies are processed once they are submitted...However, this...fails to address the most pressing barriers to accessing the subsidies: workers are unaware of the subsidy, parents can not apply for them unless their worker chooses to do so, and workers routinely do not, even when the parent is eligible.(42)

Janet Acker, of New York City Court Appointed Special Advocates, added:

We have found that...caseworkers do not know the procedures...for applying for housing subsidies....We have seen parents lose apartments they have searched long and hard for because a [case]worker has not applied for a housing subsidy on time...[N]ew crises are created when biological parents so close to having their children discharged to them have to go back ten paces and again search for an affordable apartment, beg the landlord for time and understanding, et cetera.(43)

The Committees sought detailed information from the Office about the status of this program Statewide, and the procedures the Office has put in place to monitor it, particularly in New York City. In a letter to the Committee Chairs, Commissioner Johnson replied:

Initially, voluntary agencies informally raised concerns about problems in accessing rent subsidies. Since I have not heard complaints, I believe these problems were successfully addressed.(44)

Such a response suggests that the Office does not formally monitor the districts to ensure that rent subsidies are being provided as required by law. This leaves the Committees to conclude what others have claimed: that this program is not being effectively administered, and a lack of affordable housing remains a barrier to reunification.

The Office's failure to implement demonstration projects and to apply what is learned to Statewide programs indicates a disregard for the intent of the law.

The lack of State involvement in enforcing the above laws demonstrates the Office's hands-off attitude toward ensuring that State policy is carried out. It is particularly troubling that the Office did not require these demonstration programs to be fully implemented, monitored, and evaluated, because such programs can be expected to have a larger Statewide impact. Further, as the housing subsidy program shows, to the extent that these laws are not being implemented, the problems they were meant to address continue.

In November, 1997, the federal Adoption and Safe Families Act (ASFA) was signed into law (P.L. 105-89). This law provides sweeping changes in the way States must deal with child welfare cases, in order to continue to be eligible for federal funds. The intent of the law is to move children to permanency more quickly.

In February, 1999, New York passed enabling legislation (Chapter 7, L. 1999) to bring the State into compliance with ASFA. The State legislation:

Reduces the review period for voluntarily placed children from 18 months to every 12 months.

Changes the calculation of the date a child is considered to have entered foster care to sixty days after removal from the home or from the date of a finding of abuse or neglect, whichever is earlier.

Establishes requirements and procedures for the Family Court to determine when reasonable efforts to reunite a family are not required.

Requires criminal record checks of people applying to become foster or adoptive parents, and bars people with convictions for certain crimes from being certified or licensed (discussed further under the Agency Administration section of this report).

Requires that termination of parental rights proceedings be brought in cases of children who have been in foster care for 15 of the previous 22 months, or where the parent has abandoned the child or been convicted of certain serious felonies. Exceptions to this requirement are when a child is in kinship foster care, where there is a compelling reason not to begin such proceedings, or when an agency has failed to provide necessary services.

Requires parents to be provided with copies of court orders, the visitation plan, and the family service plan, and to be notified of planning conferences.

Requires the Family Court to set out a visitation plan for children in foster care.

This legislation will have a significant impact on the operations of every aspect of the child welfare system, from local districts and contract agencies, to the State agency and the Family Court. Much coordination and effort will be needed by all involved to implement the new requirements.

Furthermore, since the intent of ASFA is to move children expeditiously through the foster care system, New York State is under great pressure, now more than ever, to provide adequate preventive services and permanency alternatives to children and families. In the coming years, the need for preventive services will not only continue to be vital in helping children and families, but will also help in decreasing the number of children in foster care.

ACS should finally institute a decentralization program as originally envisioned by the Legislature in 1996. The program should include these elements: provide adequate community-based preventive, child protective, foster care and adoption services; coordinate child welfare services with community schools and other relevant community programs; follow nationally recognized staffing ratios; and include a thorough evaluation of the program.

Because of the complexities involved in implementing the requirements of ASFA, the Legislature should monitor this effort to ensure that New York's ASFA compliance law is being implemented as intended.

The Assembly's ASFA compliance bill (A.962) directed the OCFS Commissioner to conduct a study of any socio-economic factors and procedural or policy biases which result in racial and/or ethnic disparities in the treatment of families and children involved with the child welfare system. This provision was rejected by the Senate and the Executive during ASFA negotiations. The Assembly continues to advocate for OCFS to undertake such a study in order to understand and then address the disparate influence race and ethnicity play in child welfare decisions. In the meantime, cultural competency and sensitivity training must be required of all administrators, supervisors and caseworkers on an on-going basis. The Assembly plans to continue to be involved in this issue.

The way foster care services are funded can profoundly influence service delivery and, ultimately, length of stay. In recent years, changes in financing of foster care has led to reduced services, especially preventive services. This has contributed to more children entering foster care, and spending more time in care.

Following are some of the factors that have impacted funding and delivery of foster care and child welfare services in New York State:

The most significant factor is the State Family and Children's Services Block Grant, enacted in 1995, which forced providers of different services to compete for reduced overall State funding.

Federal and State Maintenance of Effort (MOE) requirements for preventive services were intended to keep agencies focused on providing these critical services, which have been at inadequate levels since before the block grant was established. However, the State and local districts have not been meeting these requirements, resulting in financial penalties, reduced federal funding, and reduced services.

Prospective, capitated payments to foster care agencies are gaining popularity as a way of providing incentives to agencies to move children into permanent homes more quickly. The recent Homerebuilders demonstration project provides an initial look at the potential benefits and costs of such an approach, as the State plans to expand this model under a federal Title IV-E waiver.

Inadequate compensation in several areas has impacted service delivery.

-- Low salaries for caseworkers have resulted in high staff turnover and inconsistent provision of services.

-- Court-appointed attorneys for children or their parents claim they cannot afford to spend the time they need to provide adequate representation.

-- Court-appointed attorneys representing parents are assigned high caseloads with little or no support.

Block Grant for Family and Children's Services

In 1995, New York became the only state to change its child welfare funding method to local social services districts from an uncapped, percentage reimbursement system to a fixed block grant allocation. As set out in § 153-i of the Social Services Law (SSL), block grant funds are allocated based on a district's history of claims for family and children's services. The four major child welfare program areas initially covered by the block grant were foster care, child protective services, preventive services, and adoption services. In 1998, child protective services were carved out of the block grant and funded through a separate appropriation. At the same time, foster care programs for Juvenile Delinquents / Persons in Need of Supervision (JD/PINS) were added to the block grant. The block grant statute expired on March 31, 1999, and has been extended through temporary budget measures.

The block grant was intended to give local districts more flexibility in providing child welfare services.(45) Under the previous funding system, the districts received federal and State reimbursement for a percentage of the cost of providing these services. The districts were also required to contribute a percentage (i.e., out of county or New York City tax revenues). Eligible foster care expenses received a 50% federal Title IV-E (of the Social Security Act) reimbursement and a 25% State reimbursement, with the counties/NYC contributing the remaining 25%. For preventive services, the State provided 75% reimbursement after each county/NYC had exhausted its federal Title IV-B funds. And for protective services, the State paid 75% and the counties/NYC paid 25%, with no federal reimbursement.

The block grant eliminated the State and county shares, although the federal formulas are still in place. The expectation was that with a lump sum block grant allocation from the State, each county could tailor services to meet the needs of its population, within an overall limit. In theory, this could include providing more preventive services to keep children out of foster care and to reunite families more quickly, thus reducing length of stay. Moreover, if a local district spent less than its block grant allocation, the district could keep the savings and invest it in areas where it found the greatest need.

The block grant has been in effect since 1995, with generally disastrous results to services for families and children. Most problems can be traced to huge cuts in available funds resulting in a decrease in overall services, as well as a new competition among types of services for a fixed amount of funds. One service area hit particularly hard was preventive services, which have been underfunded in more than half the local social services districts.

Funding cuts. State fiscal year (SFY) 1994-1995 was the last year in which the four child welfare program areas were funded through separate appropriations. That year, State appropriations totaled $577 million. Funding has not been at this level since. In SFY 1995-96, the first year of the block grant, State funding was slashed to $428 million -- a cut of $150 million, or 25%. For the next two fiscal years, $80 million was restored largely due to efforts by the Assembly, bringing the block grant to $507 million.

In SFY 1998-99, the allocation was increased to $523 million, still far below 1994-95 funding levels. Although a separate appropriation of $50 million for child protective services was carved out of the block grant for SFY 1998-99, additional JD/PINS foster care programs previously run by the Division for Youth costing an equal amount were folded into coverage by the block grant.

Competition among services. While overall funds have been cut, there has also been a shift in priority as to which services are funded by local districts. Child welfare authorities are required to: investigate all reports of child abuse and neglect, and to provide services to prevent the removal of children, reunify families, care for children in foster care, and expedite adoptions where needed. However, many districts have used their block grant allocation primarily to cover the cost of child abuse investigations and foster care services first.

Mandated preventive services, which received a 75% State match prior to the implementation of the block grant, have received a lower priority under this competitive structure. This is evident by the fact that for SFY 1996-97, 32 of the 58 local districts did not meet the State's Maintenance of Effort requirement for preventive services. Furthermore, New York is the only state not to have met the Federal MOE for preventive services, set at 1992 levels (see discussion later in this section).

Overwhelmingly, the Committees heard that the block grant is a failure: it does not provide the promised flexibility to local districts as the law had intended; the fixed allocation does not consider fluctuations in demand for services; cuts in the block grant have resulted in cuts to services; and the nature of the block grant causes a disruptive competition between different child welfare services. These complaints were raised by parties from all facets of the child welfare system.

Deborah Merrifield, Erie County Commissioner of Social Services, testified:

The block grant...sent a message to our officials at the county level that this [child welfare] wasn't an area to spend money on.(46)

John O'Neill, Essex County Commissioner, added:

Building supportive services around children and families before and after foster care requires more flexible funding than we are aware that we have.(47)

ACS Commissioner Nicholas Scoppetta echoed this sentiment, and raised the concern that local districts cannot control the number of children coming into the system requiring services:

The argument was that you're going to get a lot of flexibility but we're [the State] going to give you less money so that's what we ended up with. But we don't really have that much more flexibility. We can't just move the money around. All those [42,000] kids in foster care have to be paid for...I couldn't just say, well, let me take $100 million away from foster care and put it in preventive services.

He continued:

We certainly support letting the block grant expire [in 1999]...and we encourage the legislature to take a look at doing away with it [in 1998]. I think it would be a boon to child welfare if we had it so that certain services which literally the kids and the families are entitled to were entitlements.(48)

As a result of across-the-board cuts to contract agencies, most of these agencies were forced to cut services dramatically to families. For example, the Salvation Army, Syracuse Area Services, reduced its preventive services cases from 160 families to 75 families, with no safety net to ensure continued services for the families it cut. In addition, staff cutbacks resulted in caseloads much higher than national standards.(49) Some larger preventive and foster care agencies have had to dip into reserves to maintain services at pre-block grant levels.(50)

Fred Brancato, of the Council of Family and Child Caring Agencies, testified:

There is a lot of momentum that is building up in terms of communicating how bad the block grant really is and the damages done. It's been, I think, the singular most influential factor, damaging services to children over the last four years...[T]he block grant placed state responsibilities squarely on the counties and the only flexibility counties really have [is] where to make cuts.(51)

Child advocates and parents' advocates unanimously attacked the block grant:

Elie Ward, of Statewide Youth Advocacy:

The Block Grant is a perverse kind of financing mechanism and always has been...The first year of the block grant was a disaster. It was a massive cut of resources. The failure of that was so obvious, because every year thereafter there were all these...mechanizations trying to put money in and around the block grant.(52)

Marlene Halpern, of Legal Services for New York City:

In 1995 the state block grant...eradicated designated funding streams and greatly reduced the availability of state funds for preventive services....It would be a great service to New York's children and families if we let this misguided piece of legislation reach a quiet death. It has been the cause of diminution in preventive services throughout this state....Only through early assessments and the timely provision of preventive services will children no longer languish in foster care.(53)

A recent study by Citizens' Committee for Children found that State block grant cuts and reduced city funding have had profoundly negative impacts on child protective, preventive and foster care services in New York City. Among the study's numerous findings was that the funding cuts resulted in: cuts in services, particularly preventive and drug treatment services; staff layoffs and a resulting increase in caseloads; most agencies had to use private funds to make up some of the shortages in funding; and most foster care providers reported that children are at greater risk of foster care placement as a result of cuts to preventive and other child and family support programs.(54)

Clearly, the experience of professionals involved in all aspects of the child welfare system indicates that the block grant experiment has failed to meet the needs of our children and families. As James Crampton of Local 1199, the National Health and Human Services Employees Union, put it: "New York's foster care workers and the children are tired of being the guinea pigs."(55)

Assembly action. The Assembly has responded to these concerns. As part of its 1998-99 budget, the Assembly passed a bill that would have: eliminated the block grant on October 1, 1998; reinstituted the previous reimbursement method; and increased the budgeted amount by $50 million, restoring it to pre-block grant levels. The Senate, however, refused to address the failed block grant until it sunsets.

Despite the overwhelming consensus that the block grant is a failure, Governor Pataki has proposed in his 1999-2000 budget extending the block grant for another four years, as well as removing the preventive services maintenance of effort requirement tied to the block grant.

- State MOE. The block grant provision requires local social services districts to meet a Maintenance of Effort for preventive services, equal to 80% of local districts' pre-block grant expenditure levels. If the districts do not meet the MOE requirements, they face a reduction in future block grant allocations. The intent of the MOE was to ensure that local districts do not shift funds away from vital preventive services.

Commissioner Johnson has informed the Committees that 6 districts did not meet the MOE requirements for 1995-96; they were assessed penalties totaling over $400,000 against 1996-97 funds, but 5 of the districts subsequently received waivers and the penalties were refunded. For 1996-97, 32 districts (55% of all districts) did not meet the MOE requirements. Two years later, these districts' applications for waivers or penalty reductions are still under review, so no block grant funds have been withheld yet. The Commissioner also noted that the former DSS monitored preventive services expenditures from data supplied by the districts on various reports, which were incomplete.(56) The Committees have learned that the Office now estimates this statutorily required information based on cost allocations using a random moment survey.

- Federal MOE. Title IV-B, subpart 2, of the federal Social Security Act, entitled "Promoting Safe and Stable Families", includes a Maintenance of Effort requirement for family preservation and support services, which first took effect in 1994. In 1997, ASFA added time-limited family reunification services and adoption promotion and support services to the MOE. The provision requires states to spend at least what they spent in 1992 for these services, in order to be eligible for Title IV-B subpart 2 federal funding. States must also meet a 25% state/local match to receive the full 75% federal reimbursement.

From 1994 through 1996, New York received $44 million in federal funds under this provision for family preservation and support services. However, since 1997, the State has forfeited over $33 million in additional funding, and is the only state not to have met the MOE. The State is now poised to lose another $18.5 million in FFY 1999-00.

Coupled with the cuts in State funding under the block grant, this reduction in federal dollars has further undermined these vital services.

Increasingly, experts are charging that the traditional per-diem reimbursement method used to fund foster care provides a disincentive to agencies to move children out of foster care, or to prevent them from entering care. Prospective payment methods, including capitated rates generally used under managed care plans, are being promoted as a way to ensure efficient use of services which help minimize stays in foster care.

An element of such a funding mechanism is the idea of "front-loading" services to families and children. By accelerating payments to agencies when a child first enters care, the agency can provide more intensive services early on, when families are most receptive. This would help children achieve permanency sooner.

New York City will be one of several locations implementing a pilot managed care program under the State's federal Title IV-E waiver. In discussing the City's plans, Commissioner Scoppetta said:

Th[e] per-diem payment system builds in a disincentive for the agencies to reduce lengths of stay. Our hope is that paying the contract agencies a lump sum for a certain number of children will increase the flexibility of their service delivery while creating an incentive to reduce lengths of stay. The agencies can reinvest any cost savings induced by shortening lengths of stay into preventive services or after care - to prevent initial entry and reentry into foster care.(57)

As described more fully under the Recent State Laws section of this report, New York City had previously implemented the HomeRebuilders demonstration project, which involved the payment of capitated rates to several agencies. Unfortunately, the project was stopped by the City before its completion, and the experience of this valuable program has not been fully documented by the City or the State.

Cuts in funding have made it difficult for agencies and local social services districts to provide a living wage for caseworkers. This has resulted in high employee turnover and inconsistent care for children. Many workers have taken second and third jobs to support their families.

The Committees heard from numerous agencies and workers regarding insufficient salaries. For example, Poul Jensen, President of Graham-Windham, a voluntary foster care agency, told the Committees his agency was forced to mortgage its property to provide salary increases and hire additional staff to reduce caseloads. He testified:

Our starting salary for entry-level B.A. caseworkers was $21,500 a year...and our salary level for entry-level youth counselors, our child care workers, was $16,500. That's here in New York City...These salaries are less than the workers are paid in kennels. These salaries are less than what workers are paid who work with laboratory rats.(58)

As part of the 1998-99 budget, the Legislature allocated $2.5 million for cost of living increases (COLAs) for preventive and foster care workers. The Governor vetoed this increase, but it was restored later in the year.

Children in foster care are represented by law guardians appointed by the court. Their parents are often represented by separate court-appointed attorneys (known as 18-B attorneys because they are assigned pursuant to Article 18-B of the New York State County Law). These assigned counsel, which are often selected from pre-approved panels, are paid hourly rates established by State law: $40 per hour for in-court work, and $25 per hour for out-of-court work, subject to an overall cap of $800 per proceeding.(59) Other 18-B attorneys and law guardians are salaried employees of Legal Aid societies and other organizations, which have contracts with the State's Office of Court Administration.

Many attorneys appointed from panels across the State argue that the State's hourly rate is simply not enough to properly represent their clients. These attorneys maintain that under the current fee structure, they cannot afford to spend enough time to really get to know their client's situation and prepare for their case.

Law guardians. For example, the Committees heard from many people - including foster parents, court appointed special advocates, and children's advocates - who complained that some law guardians do not meet with the child until immediately prior to a hearing, and that they are often poorly prepared. Furthermore, the Committees heard that although the same law guardian is required to be involved in all hearings related to a case, they may not keep abreast of the child's or parents' progress between hearings. Law guardians maintain that this is a result of numerous factors including: high caseloads, low compensation, a lack of reimbursement for activities not directly related to a proceeding, and inadequate information about the child provided by the agency.

Adult legal representation. Many of these issues also apply to 18-B attorneys assigned from panels to represent the parents. These attorneys also carry high caseloads and receive the same low compensation.

The Committees heard testimony that more comprehensive legal representation of parents can help ensure the provision of needed services to families. However, the law only requires these attorneys to be involved in a case up through the determination proceeding - the point where a decision is made whether to place a child in foster care. No further representation is required thereafter, unless a petition to terminate parental rights is filed. This leaves parents without representation to ensure that they receive the services they need, and to protect their rights (e.g., visitation) while their children are in foster care.

Furthermore, in many cases, court-appointed attorneys lack the support staff to assist them in their representation. Marlene Halpern elaborated on this point:

The parent...is represented by a sole practitioner who has no supportive back-up and who cannot continue representation once the court places the child into foster care. This attorney definitely cannot represent the client at family service review conferences. Consequently, the parent has no legal counsel to assist with reunification and permanency planning once outside of the courthouse....Only with equal representation of all the parties does the court receive all necessary information to reach a decision that is best for the child and one that complies with [State law].(60)

Family Court judges' decisions as to which children should be removed from their parents can be extraordinarily difficult. Under current circumstances, these decisions are too often made after a hearing dominated by evidence presented by caseworkers who have spent some time with the case and who are advocating for removal. Assigned counsel are beleaguered with exceedingly heavy caseloads, or compensation rates so low that each hour spent on the case is a financial loss for the attorney. Not surprisingly, Family Court judges are not hearing all the relevant exculpatory and mitigating evidence that should go into their decision-making. And also not surprisingly, some children are being placed in foster care when it is not needed.

Clearly, there is a need to provide competent and adequately paid counsel to parents. This is even more important with the additional requirements and responsibilities of ASFA.

Parents as advocates. Parents often face many difficulties in trying to find their way through the complexities of the child welfare system. To respond, parents have joined together to educate themselves to become more informed advocates in the child welfare system. Among these newly formed parent advocacy groups are: People United for Children, the Child Welfare Organizing Project, C-PLAN (Child Planning and Advocacy Now), GAMA (Grandmothers As Mothers Again), the Child Welfare Action Center, and the American Association of Retired Persons' Grandparent Information Center. These groups will take on an especially important role in informing parents of the significant changes that resulted from ASFA.

The Block Grant for Family and Children's Services should be allowed to expire. However, rather than the original expiration date of March 31, 1999, the block grant should end on October 1, 1999, giving local districts and the State time to transition to a new financing mechanism. The block grant was intended to provide increased flexibility to local districts to do such things as provide less expensive preventive services, thus reducing the need for foster care placements, but it failed in this regard. Instead, stays in foster care increased and preventive programs were cut. The block grant also failed because the Office failed to enforce the Maintenance of Effort requirement in a meaningful way.

The State should return to an uncapped reimbursement system for child welfare services, in which the State and locals will share the non-federal cost of foster care and other services, and that will provide an enhanced State reimbursement for preventive services. This will eliminate the competition among service areas that has arisen under the block grant and will take into account changes in child welfare caseloads that are beyond a local district's control.

Several key areas that must receive increased funding in order to improve services are:

-- Increased salaries and training for caseworkers. The cost of better prepared and qualified workers will be offset by the improved services provided, better decision-making, and expediting cases to permanency.

-- Decentralization of comprehensive services in communities. When CPS, preventive, foster care, and adoption services are coordinated in smaller areas (i.e., community-based services), the result is better services, improved access, and service efficiencies.

-- Legal services. Ensuring adequate funding of counsel to represent parents and children will also reduce the number of unnecessary foster care placements and help children and families achieve permanency.

One such program that should continue to receive funding is Legal Services for Families. This program funds neighborhood-based not-for-profit legal services organizations which provide comprehensive representation to parents in Family Court. In addition to utilizing experienced attorneys and social workers to present evidence that children were not abused or neglected, the offices also provide legal assistance to help families with their housing, public assistance and domestic relations problems to alleviate any conditions which may have caused abuse or neglect.

The Assembly continues to propose legislation that would raise assigned counsels' fees for in-court and out-of-court work. This would help provide adequate compensation for assigned counsel, and help ensure that they are better able to spend the time they need to properly represent their clients.

-- Up-front prevention and early intervention programs. A variety of such strategies (e.g., home-based visiting programs, substance abuse treatment programs, and family rehabilitation programs tailored to women with children) have proven successful for at-risk families. Such initiatives are in accordance with the Legislature's focus on developing and expanding innovative programs that help children and families.

Resources must be appropriated to better ensure compliance with ASFA including, but not limited to: training of all relevant agency, Office and judicial personnel; hiring of additional Family Court judges and staff to adhere to the expedited time requirement for holding permanency hearings (i.e., within 12 months); and legal representation of parents in abuse and neglect proceedings throughout their involvement with the Family Court on the matter.

The Office should closely monitor the implementation of New York City's planned capitated funding demonstration project, for which the City has been granted a federal Title IV-E waiver. Such a project should be examined as a way to encourage front-end services and to prevent or reduce foster care stays. The Office should also ensure that the program adheres to accepted standards of service, so that children receive the care they need. The required evaluation should provide valuable lessons for Statewide implementation of such a program.

The Office of Children and Family Services, local social services districts, and voluntary agencies are responsible for program oversight and administration. These institutions' practices, administration and capacity greatly affect how they implement State child welfare policies, and ultimately, outcomes for children. As Janet Acker, of New York City's Court Appointed Special Advocates, testified before the Committees:

Perhaps the single greatest factor in the length of time children spend in foster care is still the diligence and efficiency of the caseworkers and the agency, be it ACS or a voluntary agency.(61)

The Committees focused this part of their examination on administrative issues identified through their preliminary research and outreach efforts, issues that had received significant recent press coverage, and those issues brought to the Committees' attention at the hearings. Specifically, the Committees focused on the following administrative areas and their impact on the foster care system and length of stay. Below are background information and findings regarding these issues. (Provision of services by the agencies are discussed in the next section.):

staffing issues;

the Statewide CONNECTIONS computer system;

institutional delays;

screening of foster parents.

Most experts agree that quality and consistency of care have a significant influence on a child's stay in foster care. This care is provided by the caseworkers assigned to a child and his or her family. However, when agencies are forced to cut their workforce without a related reduction in the number of children they serve, the result is increased caseloads, high turnover, a lack of continuity for children, and a reduction in services. The quality of care and, ultimately, the children suffer.

Many voluntary agencies in New York have experienced staff reductions driven in part by cuts associated with the State's Family and Children's Services Block Grant. In the first year of the block grant State funding was cut by 25%. This translated into cuts at the local level and corresponding cuts in agencies' contracts, leading them to layoff staff and freeze wages. For example, a recent study of voluntary agencies in New York City found that during fiscal year 1995-96, preventive services agencies reduced full-time direct service staff by 11%, and part-time direct service staff by 23%. Similarly, the study found that foster care agencies cut full-time direct service staff by 8%, and part-time direct service staff by 12%. In both cases, agencies hired some additional staff the following year, but reduced administrative and support staff to compensate for this increase.(62)

Such cutbacks have required the remaining staff to take on additional responsibilities. For example, program directors and supervisors have had to provide direct services to children and families, leaving less time for their administrative and supervisory duties. Furthermore, the cuts in support staff have left agencies without staff to perform administrative functions and vital program support functions that help families in care.

Staff reductions have also meant that remaining caseworkers have had to take on higher caseloads. While the gradual decline in the number of children in foster care in recent years would be expected to reduce caseloads, the cuts in foster care staff have more than offset this expectation. For example, between 1995 and 1997, the foster care population in New York City decreased 3.5%,(63) compared to staff cuts of approximately 10%. As a result, staff have less time to perform duties such as maintaining contacts with children, parents, and foster parents, and facilitating visitation between parent and child. Lack of important services such as case contacts affects a family's progress, and ultimately, time in care. The impact has been felt across the State in various child welfare program areas.

The New York City study indicated that, due to funding cuts, both voluntary preventive services agencies and foster care agencies were forced to increase caseloads, thus decreasing the amount of time caseworkers spend with each child and his or her family. This was also true of ACS' child protective caseworkers. During the first year of the block grant, reports of abuse and neglect in New York City increased by almost 12%.(64) Because staffing levels were frozen at pre-block grant levels, CPS caseloads increased from 19 to 24 cases per worker,(65) twice the Child Welfare League of America (CWLA) standard of 12 cases for child protective services workers.

Voluntary agencies across the State have had similar experiences. Joanne Eddy of the Salvation Army, Syracuse Area Services, testified that as a result of the 25% cuts to contract agencies in Onondaga County:

Our preventive services caseload right now is 17 families per worker.... The caseloads are so high that the families cannot receive the intensive level of services they need to maintain their children at home. That's particularly true since after the cutbacks we started working with only the most serious or problematic families....(66)

Sudha Hunziker, of Parsons Child and Family Center in Albany, agreed:

Budgetary cutbacks have led to reductions in staff, [and] increased and often unmanageable caseloads. These factors have often contributed to breakdowns in achieving permanency for foster children in a timely manner.(67)

According to the Council of Family and Child Caring Agencies (COFCCA), which represents voluntary agencies throughout the State, foster care caseloads have increased from 18 children per caseworker to 25 - 30 children per caseworker. The CWLA standard for foster care is 12 - 15 children per caseworker.

Some agencies have been forced to close group homes because they cannot afford a sufficient number of staff to care for children safely and properly, and others are dangerously close to closing. For example, at some group care facilities, there is as little as 1 worker caring for 15 children, even at night when crises often arise.(68) Congregate care facilities provide specialized services to special needs children, including those with serious psychological problems which can sometimes result in attempted suicide, arson etc. Because of the need for intense supervision and care, ratios of workers to children need to be low, and it is often not appropriate for these children to be placed in family foster boarding homes. Nevertheless, because of the decrease in congregate care beds, some children who should have been served in group homes were instead placed with foster care families.

The pressure on the remaining staff to provide care for growing caseloads, coupled with lower salaries and benefits than in the private sector, has caused high turnover, particularly among the most experienced and qualified staff. According to COFCCA, this translated into a 33% turnover rate during 1997 for foster care and preventive services caseworkers. The rate was even worse at group residences, where there was a 41% turnover rate for caseworkers and a 50% turnover rate for supervisors.(69)

High staff turnover has significant ramifications for children in the child welfare system who are in need of stability and continuity. With a constantly changing stream of caseworkers, it is difficult to move children to permanency. When a child's caseworker leaves, the child and his or her family can "fall through the cracks": further delaying their receipt of necessary services. In addition, new staff require a significant amount of training and supervision, both of which are limited due to scarce resources.

A recent State Comptroller audit found that the State Office of Children and Family Services does not monitor, and indeed, does not even have an accurate count of, child welfare caseworkers employed by local districts. It also found that caseload ratios varied greatly by district, and in many districts significantly exceeded CWLA standards.

For example, child protective services caseloads varied from 0.4 to 77.2 cases per caseworker; preventive services caseloads ranged from 1.8 to 86.3 cases; and for foster care, caseloads ranged from 3 to 35 cases per caseworker. For caseworkers employed by New York City's ACS, caseloads varied greatly among boroughs, with the Bronx having the highest caseloads. Caseload ratios throughout the City were often higher than CWLA standards, especially for child protective services workers. To help ensure that services are provided appropriately across the State, the audit recommended monitoring district staffing levels, and, in New York City, redeploying caseworkers among the boroughs.(70)

In responding to the audit, the Office cited a State law that prohibits it from "prescrib[ing] the number of persons to be employed in any social services district provided the district complies with minimum federal standards relating thereto."(71) Since such federal standards do not exist, it would appear that the Office does indeed have such authority. Regardless of the interpretation of this section of law, as discussed in the Oversight section of this report, the Office does have the responsibility to supervise all social services work as administered by local social services districts. The Comptroller agreed, finding that "the [Office] has a responsibility to monitor district staffing and encourage compliance with appropriate workload standards, in order to ensure that child welfare services are as effective as possible and meet the State's mandates for these services."

Staff qualifications, training and supervision also play an important role in the quality of services provided to children. The Committees learned, however, that such staff preparation and supervision is inadequate across the State. Not only is there insufficient State involvement in monitoring caseworker preparedness, but a significant gap exists in communicating specific State policies to caseworkers and training them in their implementation (e.g., rent subsidies, kinship foster care). Often such policies are merely conveyed through memoranda and directives issued by the Office, without any apparent follow-up to see if they are being implemented as intended. This has resulted in inconsistent provision of services throughout the State, jeopardizing quality of care, and in turn, negatively impacting length of stay.

The need for appropriately qualified staff and foster parents was emphasized at the hearings. Fernando Ferrer, the Bronx Borough President, testified:

Inadequate staffing and training compromises efforts to achieve permanency. It impedes the timeliness and adequacy of critical decision making and goal planning for reunification, adoption, and discharges to independent living.(72)

Barbara Salmanson, of the New York City Comptroller's Office, added:

An effective child welfare system must be staffed by well-trained and experienced caseworkers and supervisors. In-depth training should be provided to personnel in ACS and the foster care agencies both at the time of hiring and throughout their careers, so as to assist them in addressing the complex problems presented by the families they work with and provide the tools necessary to hasten the permanent placement of children.(73)

A recent State Comptroller audit found that State oversight relating to caseworker qualifications, training, and supervision is lacking. As mentioned earlier, the Office treats staffing issues primarily as a local responsibility, and places the onus for compliance with State regulations on the local districts. The audit found, however, that the Office does not have adequate systems in place to monitor local districts' compliance with regulations related to caseworker qualifications, training and supervision. Furthermore, it found that many of the State regulations are outdated, and recommended they be reviewed periodically and revised if necessary to reflect current child welfare thinking.(74)

While efficient program administration is critical, adequate training is equally important to ensure appropriate services are provided. Despite efforts by the Office to restructure its training program, gaps persist at the local level. An example is lack of caseworker knowledge about the foster care and preventive housing subsidy programs.

As described in more detail under the State Laws section of this report, these subsidies are intended to obviate or shorten foster care stays. Although ACS implemented recommendations made by the NYC Comptroller to streamline the administrative procedure for processing the subsidies, the Committees continued to hear reports that caseworkers were not aware of the subsidies.

This lack of caseworker knowledge regarding a State policy that has been in effect for a number of years, points to inadequate training on the part of the State and local agencies regarding the basic services available to children and families. When families do not receive needed services, longer stays in foster care ensue.

Although local social services districts are required by law to seek out relatives for unpaid or kinship foster care placements before placing children with strangers, a recent audit by the State Comptroller found this requirement to be enforced primarily in New York City only. Other districts had varying interpretations of the requirement; some did not believe it applied to them or refused to enforce it.

The audit concluded that the Office has not communicated effectively to the districts their responsibilities to consider kinship foster care as a viable option. In response, the Office indicated it felt that most districts understood the State's kinship policy, but agreed to continue instructing them through policy issuances.(75) However, the numbers would suggest that confusion persists. As of the end of 1997, kinship placements in New York City totaled 12,795, or 32.7% of total placements, while placements Upstate were only 972, or 7.4% of total placements.(76)

Caseworker Education Program. In recognition of the need for more highly qualified staff, the Legislature established employee scholarships under the Caseworker Education Program.

Based on a proposal by Assemblyman Green, the Legislature authorized a total of $2.3 million in fiscal year 1996-97 to establish this program. The legislation appropriated funds to provide child welfare staff employed by local social services districts with a population of 125,000 or more with an opportunity to apply for scholarships towards the pursuit of a Master in Social Work degree. Under this program, local social services districts, in conjunction with representatives from labor and higher education, established student selection criteria. Preference was given to child protective and preventive caseworkers who had been employed by a local district for at least two years. Eligible employees were required to sign a contract agreeing to remain an employee of the "sponsoring" local district for at least two years after completion of the Master degree requirements.

The Caseworker Education Program was again funded in SFY 1997-98, due to demand for the program and its early success. The program was also expanded to include the Capital Region as a qualifying local social services district.

The 1998-99 budget that the Legislature passed also included an appropriation for this program, and amended the language to allow caseworkers in voluntary agencies to be eligible to apply for scholarships. Despite the bipartisan support for the expansion of this program, Governor Pataki vetoed the appropriation. The immediate impact of this veto was to interrupt the graduate studies of students nearing completion of their Master's degree, while also making it more difficult to improve the professional qualifications of other child welfare staff.

As described in the Oversight section of this report, the State's CONNECTIONS computer system is expected to house comprehensive information on children and families in the child welfare system. Its goal is to aid in local decision-making, and also to correct deficiencies in the Office's administration and oversight of child welfare programs.

Despite the system's laudable goals, the agency has failed to adequately oversee its development and administration. This has resulted in numerous problems, including

delays in implementation of the system

design problems

State Central Register inaccuracies

increased time required by caseworkers

cost overruns and poor contract management

Inadequate system planning and testing due to a rush to meet federal deadlines has led to implementation delays.

CONNECTIONS is being implemented in two phases; hardware installation and software development/ implementation. While the hardware component is substantially completed, software development has fallen significantly behind schedule. The original target date to complete all five software releases was September, 1997. However, at the time this report went to print, only three of the releases had been implemented, which include such features as: on-line policies and procedures, security features, staff directories, foster and adoptive home information, and the State Central Register for Child Abuse and Maltreatment.

The remaining two releases, which are to include critical case management and reporting features, are so fraught with design problems that the Office has been unable to set a new schedule for their implementation. In the meantime, users must use both new and old computer systems, and sometimes duplicate manual records, to track critical information for various child welfare programs.

Some have charged that in trying to meet the federal funding deadline of September 1997, implementation of the system was done hastily, with a lack of adequate testing, validation, and user input. Portions of the old system were deactivated as CONNECTIONS releases were rushed into production, causing problems when numerous bugs were discovered, with no fall-back system in place. This rush may have actually contributed to overall delays, as it is more difficult and time-consuming to correct problems once a system is in use. Furthermore, as Donald Smith of OCFS testified, some of the Offices target dates were not realistic.

[T]here was a time line around where we had to achieve a point where the system was up and functional in order to be reimbursed the 75 percent from the federal government as opposed to 50 percent, so that there was a real benefit in abbreviating this process. And obviously in a system that is as complex as child welfare, from a software perspective...the time lines by normal business standards were tight.(77)

In addition to user problems, these implementation delays have caused additional work for the Office and additional costs to the State. For example, because CONNECTIONS will not be fully operational until after 2000, the Office has had to devote resources to upgrading the old Child Care Review Service (CCRS) to be year 2000 compliant in the interim. The State has also been assessed $817,000 in penalties for FFY 1998 for not adequately meeting new federal reporting requirements for foster care and adoption information. CONNECTIONS was supposed to supply this information. The State faces additional penalties of over $1.6 million for FFY 1999 if the problems persist.

Users report that the releases completed so far are unreliable and do not meet their needs. Because user input during the design and testing period was insufficient, once the components were rolled out, users identified over 4,000 problems.

An example of the user problems discussed at the Committees' hearings related to confidentiality of information in CONNECTIONS. This problem includes several components. First, users complained that a lack of unique usernames in the electronic mail (E-Mail) system meant that if there are several people with the same username, the intended recipient may not get the information. Second, because certain caseworkers are limited by their professional standards to release client information only upon a release signed by the client identifying a specific person(s) who may receive the information, there is a concern that information transmitted in CONNECTIONS does not preserve this confidentiality. Additionally, there is a concern about forwarding of E-Mailed data to persons not originally intended or authorized to receive it.

As part of an audit of the CONNECTIONS system, the State Comptroller's office found that 69% of local districts felt that the system is not reliable.(78) Regarding the audit's findings, Comptroller McCall has charged that:

The careful planning and oversight required in a project of this magnitude was just not done...We are left with a costly system that does not work properly and is adding more of a burden to the already overburdened caseworkers in the front lines.(79)

Deborah Merrifield, Erie County Social Services Commissioner, testified before the Committees that once Release 4 was pilot tested in Onondaga County, widespread user dissatisfaction finally caused the Office to form a user group in January, 1998, to help test and trouble shoot this component before implementing it. She noted:

[A]s designed, it demands laborious data entry into a computer system. I don't see much evidence that whoever worked on designing this understood we go out to see people in the field.(80)

ACS Commissioner Scoppetta testified:

If the system were turned on full tomorrow, we could not rely on that system.(81)

The Statewide Central Register of Child Abuse and Maltreatment, also known as the Child Abuse Hotline or the SCR, is now part of the CONNECTIONS system. Since this component was implemented in 1997, there have been numerous critical problems with the system, including periodic computer crashes and inaccurate search features.

For example, the Comptroller's audit found that of the 1,400 hotline calls received daily, the system routinely has lost information on approximately every 500th call. This, coupled with the threat of occasional computer crashes, has forced hotline workers to maintain duplicate manual records, and as a result has slowed down the response time to hotline calls.(82) In his October, 1998, audit response, Commissioner Johnson notes that OCFS has been able to retrieve the lost information through technical measures, and they "continu[e] to work with the consultant to correct the problems completely."(83)

Another problem involved inaccurate security checks of prospective day care workers, foster parents and adoptive parents. Before being approved, applicants must be checked against the SCR for any history of "indicated" child abuse reports. A computer glitch dating back to when this component was implemented in the Fall of 1997, resulted in these SCR inquiries not turning up people who in fact had prior abuse histories. The problem was not discovered for more than six months and until some 47,000 people had been screened improperly. Although the problem was eventually corrected and the names rechecked, children were potentially at risk for months.

A similar problem has occurred in investigating reports of child abuse or neglect. When a report of abuse or neglect is received by the Child Abuse Hotline, hotline workers are required to check the SCR for prior incidents, whether indicated or unfounded. This information is relayed to the child protective worker who is conducting the investigation. Unfortunately, these checks have not always turned up prior histories when they exist, making investigations more difficult and, again, putting children at risk of continued abuse.

Besides the additional time hotline workers have spent maintaining duplicate manual records, other users of CONNECTIONS are expected to spend more time using the new, and more cumbersome, system. After pilot testing Release 4, Erie County Commissioner Merrifield estimated that instead of an expected reduction in the time caseworkers spend on recordkeeping, the CONNECTIONS system will actually double recordkeeping time to 80% of a caseworker's daily activities. As a result, caseworkers will have less time to spend working directly with children and their families.(84) She told the Committees:

Nothing happens to move families along by entering data into the computer system. It rightly reports to accountability entities at the state and federal government. It rightly helps us track data that we should track, information we should be capturing. But we could do all of this with a much improved system than we're seeing today.(85)

The original contracts between the State and the vendors for the CONNECTIONS system totaled $124 million, of which the federal share was to be 75%. As a result of numerous contract amendments, costs have increased by 46% to over $180 million. After September 1997, any additional costs will only receive a 50% federal reimbursement. And, in fact, due to ongoing software development issues, these costs are expected to increase. The Governor's 1999-2000 budget proposal includes an additional $48 million; of this, $26.5 million is for enhancements and changes to releases 2 and 3 which have already been implemented. This raises a concern as to whether some of these costs should be borne by the consultant under existing contracts.

The Comptroller's audit found that the Office has not adequately monitored these rising costs, particularly the associated change orders:

We...found that improvements were needed to ensure that the requirements targeted by change orders were addressed as efficiently and effectively as possible, goods and services obtained through change orders were acquired at a fair price, services paid for in change orders were not covered by the original contract, and services obtained through change orders were provided as required. As a result of these control weaknesses, the costs incurred through the change orders may have been higher than necessary and needs may not have been fully met.(86)

These same issues may be applicable to current Executive efforts to spend millions more on CONNECTIONS improvements.

The proper and efficient functioning of the various institutions comprising the child welfare system (e.g., the State agency, local social services districts, voluntary agencies, and the Family Court) is critical. When there is a delay or backlog in one of these components, it often has an impact on the others. The end result is often a delay in permanency for children. During their study, the Committees identified several areas where institutional delays have contributed to longer stays in foster care. (Those issues relating to the availability and provision of services will be discussed in more detail in the next section.) These delays must be addressed if the State is to meet the tighter time tables of ASFA.

Children and families often experience delays in obtaining agency referrals to substance abuse programs and other support services.

Services to children and their families are often necessary to preserve or reunify families, or to provide care for children while in foster care. However, the Committees learned that children and families often experience delays in obtaining referrals to services.

Janet Acker, of New York City Court Appointed Special Advocates, testified before the Committees:

Without the effective help of caseworkers, families cannot possibly access the services they need in order to be reunited....Prompt referral to supportive services, drug counseling, appropriate parenting skills classes, therapy, et cetera, is essential. It is often necessary for our volunteers to place many prompting phone calls to the caseworkers. We are left with the distinct impression that had our calls, often with the names and telephone numbers of available programs, not been made, the referrals would still be outstanding. Often there are disastrous results from not making such referrals on time.(87)

Judge Nicolette Pach, of Suffolk County's Family Drug Treatment Court, noted that parents often face difficulties with agencies in both choosing appropriate substance abuse services and then accessing them:

[A]fter the court issues an order requiring the parent to attend substance abuse treatment, difficulty in accessing services frequently results in a six to nine month delay before the parent actually enters a treatment program. The lack of expert assessments and guidance in choosing a treatment program designed to meet the parent's specific needs further adds to delays.(88)

Judge Pach attributed some of the delays in accessing services to delays by caseworkers in obtaining Medicaid to pay for the services, locating treatment program resources, and waiting lists for programs. Under ASFA, such delays become increasingly problematic because they could cause key deadlines to be missed.

Petitions must be filed by an agency or local district with the Family Court before the court can hold required hearings for such purposes as reviewing a child's foster care status, or freeing him or her for adoption. When petitions are not filed by the statutory deadlines, children must continue to wait in foster care, and hearings are pushed back. Bronx Borough President Fernando Ferrer, testified:

Family Court practices and administrative delays frequently present obstacles to the prompt termination of parental rights, as well as the finalization of adoptions. Too frequently, completion of petitions, reviews and hearings do not occur within the required timeframes.(89)

The study of New York City's foster care system ordered by the Marisol court found that 30% of children in foster care in 1996 had either no evidence of any court involvement since January 1, 1995, or the legal basis for their placement had lapsed during the past year.(90) Periodic court reviews, generally done annually, are required so the court may review the status of the child and consider such things as: whether reasonable efforts to reunify the family were made, what additional services are required, whether the placement should be extended, and whether a child should be freed for adoption.(91)

In addition to causing delays in moving a case along, a lack of court involvement has other implications. When the statutory deadline for court review is missed, the legal basis for the placement lapses, and the parents of a child placed involuntarily in foster care can demand the child's return. Furthermore, federal reimbursement is not available for children in foster care without a legal basis.

ASFA now requires states to hold permanency hearings within 12 months of the date a child enters foster care, instead of within 18 months. While this requirement is aimed at quickly moving children out of foster care, it underscores the urgency to address these delays.

For children with a permanency goal of adoption, many delays can be traced to a failure by the agency to meet State-set adoption milestones. Such milestones include having a goal of adoption "set," being freed for adoption (i.e., when parental rights are terminated), being placed in an adoptive home, and being discharged to adoption. State standards have been established for the time it should take to reach these milestones. For example, the State standard is 12 months from the time a goal of adoption is set to the time a child is legally freed for adoption. Overall, the standard is 2.5 years (30 months) from the time a goal of adoption is set to the time a child is finally discharged to adoption (i.e., the adoption is completed).(92)

The Marisol study found that in New York City, for children with a permanency goal of adoption, most State-set adoption milestones were not met. It found that 60% of children waited longer than the State standard of 12 months between receiving a goal of adoption and becoming legally free. Furthermore, the most common barrier to adoption involved delays in completing the necessary legal activity to terminate parental rights.(93)

According to State data, these problems continue to exist throughout the State. Similar to New York City, as of the end of 1997, 60% of children with a goal of adoption were waiting to be freed for more than one year. Overall, almost half (49%) of children adopted in 1997 waited in foster care for more than 3 years from the time their goal of adoption was set to final discharge, compared to the State standard of 2.5 years.(94)

During 1997, ACS undertook an initiative in conjunction with the New York City Family Court to finalize the adoptions of many of the children that were simply waiting for administrative action. As a result, 4,022 children were discharged to adoption in New York City in 1997, an increase of 26% from the prior year. However, as of the end of 1997, an administrative backlog still existed: 2,286 children who were already placed in adoptive homes continued to wait for their adoptions to be finalized. Furthermore, an additional 2,000 "hard to place" children(95) had been legally freed for adoption for more than a year, but adoptive homes had not yet been found for them.(96)

Such delays must not continue. The new adoption requirements of ASFA, which focus on moving children more quickly to permanency, will hopefully put a greater emphasis on addressing this ongoing problem.

Witnesses across the State testified that child welfare cases face further delays in Family Court. They pointed to several factors which contribute to these delays, including high caseloads, lengthy and frequent postponements, and court practices.

Office of Court Administration statistics show that part of the problem is that the caseload in the New York City Family Court has nearly doubled over the past dozen years, from nearly 124,800 case filings in 1986 to 230,900 in 1998, while the number of judges has only increased from 42 to 47.(97) It has been reported that these judges typically carry as many as 1,000 cases, and may hear up to 100 cases a day.(98) This leaves judges only minutes to hear testimony on complex cases and make decisions that significantly impact on a child's life. Across the State, the problem is similar, with 663,600 case filings in 1998, up 57% from 422,000 in 1986.

ASFA is expected to further increase the number and frequency of permanency and termination of parental rights (TPR) hearings, on top of existing high caseloads. At a recent forum on the impact of ASFA in New York, Judge Michael Gage of the Family Court in New York County noted that there were 3,500 TPR hearings in New York City in 1998, and that as of the end of the year there were 14,000 children in care with a goal of adoption. With the new legislative mandate, it is estimated that this number will swell to over 20,000 a year who require TPR hearings. She raised doubts about the ability of the current court system to handle this caseload without a major addition of resources.(99)

Onondaga County Social Services Commissioner Bonnie Englebrecht elaborated, testifying before the Committees that overcrowded court calendars and the length of time between Family Court appearances contribute to lengthy stays in foster care. She maintained:

[W]e could save care days if we could do anything to move the process forward in a way that still allows for everybody to be [in court] at the same time and prepared. . . .(100)

Bronx Borough President Ferrer added:

In addition, numerous adjournments, no shows, and inadequate preparation of reports necessary for cases to move forward create additional delays.(101)

Judge Nicolette Pach, of the Suffolk County Drug Treatment Court, noted that traditional court practices contribute to delays in cases where parental substance abuse results in a child being placed in foster care:

For the most part, the court system still operates as it did before the days of crack cocaine....Until now, after the court proceedings, the parent has been sent back out into the same community where they failed to successfully complete drug treatment with a court order to attend treatment and nothing more. Court orders alone are ineffectual and children linger in marginal homes or in foster care.(102)

Furthermore, due to relapses, which are a normal part of recovery, parents may be in and out of treatment several times. This can be compounded by inappropriate or delayed treatment referrals by agencies and the court.

The courts have recognized these problems, and have established initiatives to deal with some of them. Two that were instituted in 1998 are described below.

Restructuring of New York City Family Court. In 1998, in an attempt to alleviate some of the delays in the Family Court system, Chief Judge Judith Kaye restructured New York City's Family Court into four specialized divisions (handling child protection, juvenile delinquency, domestic violence, and support and paternity cases). Under the restructuring, judges are assigned to hear cases in one of these specialized areas. Similar pilots around the State were also established.

Rather than being randomly assigned to one of over 40 judges, abuse and neglect cases and adoptions are now assigned to one of the judges that specialize in this area. The restructuring is intended to enable lawyers and caseworkers to remain in one section of the courthouse and work with only a few judges, thereby helping to ease scheduling conflicts.

Family Drug Treatment Court. Newly formed Family Drug Treatment Courts in Suffolk County and New York City are addressing some delays related to parental substance abuse. These courts use an intensive approach, modeled in part after the Criminal Drug Courts, to ensure that the parent is quickly enrolled and participating in an appropriate program. The dynamics of this initiative are discussed further under the Provision of Services section of this report.

The Family Drug Treatment Courts can only handle a limited number of cases due to the intensive nature of the court's involvement. However, this initiative is expected to help move cases along, reduce stays in foster care by facilitating greater rates of family preservation and reunification, and meet the expedited time tables of ASFA.

A serious issue which was raised at the Committees' hearings, and which also received much media attention over the course of the Committees' investigation, related to the adequacy of the local social services districts' and the agencies' screening of foster parents. When a prospective foster parent is not thoroughly investigated, children placed with the individual may be at risk.

State statute and regulations currently establish broad screening requirements for prospective foster and adoptive parents, including a new requirement in accordance with ASFA to fingerprint prospective foster and adoptive parents and persons 18 years or older in their homes, and then to conduct a criminal history check.(103) The new law prohibits persons convicted of certain crimes (e.g., felony conviction involving child abuse or neglect, spousal abuse, crimes against children, sexual assault, homicide) from ever becoming foster parents, and also bars persons guilty of other crimes (e.g., assault and drug-related offenses) for a period of 5 years. In addition, current foster parents will be subject to fingerprinting annually upon renewal of their certification. The Office is directed to establish associated standards that local districts and foster care agencies must follow before certifying or approving foster parents.(104)

A check is also required against the State Central Register of Child Abuse and Maltreatment (SCR), which houses data on reports of abuse or neglect against individuals, including foster parents.(105) The Office has developed guidelines for evaluating indicated reports against prospective foster parents. Once all the background checks are completed and the foster parent is certified or approved by the authorized agency, the agency is required to notify the Office, which maintains a database of current and past foster parents.

Informal Office policies also require that caseworkers check the State's database of foster parents to see if a home was previously closed involuntarily before certifying a prospective foster parent. If a caseworker finds that a problem existed in the home, the current policy relies on the caseworker to follow up with the previous agency to obtain additional information, without any formal guidance as to how to evaluate it.

The foster parent database, now part of the CONNECTIONS computer system, is intended to house information on all current and former foster parents. Under State law, the Office must be notified when a certificate is revoked.(106) This information is then included in the database. The law does not specify that the reason for the revocation must also be disclosed. It also does not require that the Office be notified in cases where a child is removed for cause (even though the foster home officially remains certified) or a home is not re-certified for cause.

Without any formal mechanism in place to check on the prior history of an applicant and to follow up with any previous agencies that may have dealt with him or her, another agency could certify the applicant without knowing about or evaluating prior problems. Such a case occurred in New York City in 1997, when a foster parent who was known to one agency to be unfit was able to continue to take in foster children through another agency; a child in her care died and she was ultimately found guilty of manslaughter.

In the past few years, some changes have been made to begin to address some of the administrative issues described above.

In 1997, the State Office of Children and Family Services was created to consolidate and administer all programs related to children and families that were previously the responsibility of the former Division for Youth and the Department of Social Services.

To date, only one required status report has been submitted to the Legislature regarding the Office's planned restructuring. Another report was due in April 1998, as well as a policy agenda for improving programs under the new Office's control. Neither have been submitted.

The Committees have learned that an advisory board, formed to make policy recommendations to the new Office, has begun to meet. Hopefully their efforts will help to shape a new mission for OCFS.

In 1996, the Administration for Children's Services (ACS) was created as a separate New York City agency responsible for child welfare programs, replacing the troubled Child Welfare Administration. Later that year, ACS developed a comprehensive Plan of Action to restructure and improve the agency's operations. This plan continues to be implemented, although far behind some of the key deadlines.

Settlements reached in the Marisol v. Giuliani case requiring increased State and City oversight of local operations (see discussion in the Oversight section of this report) are expected to bring further needed administrative changes.

These reorganizations and corrective actions, along with the specific initiatives mentioned earlier, begin to address some of the pressing issues raised in this report. However, the State needs to take a broader look at the effectiveness of the systems that are in place.

The Office should improve its oversight of district staffing levels, and at a minimum should assess local needs and set staffing priorities for local districts to ensure that services can be effectively provided.

The Caseworker Education Program should be revived and made permanent, so child welfare staff can count on continued funding to complete their MSW degrees. In its 1999-2000 budget resolution, the Assembly has included a $1 million appropriation for this program.

As the Office continues to develop and implement the CONNECTIONS system, management should increase its oversight of the project as a whole, particularly in the area of contract management. Any additional work not covered by existing contracts should be subject to competitive bidding. Further, user involvement should be expanded throughout the design and testing phases, and user training at all levels must be increased. This will help reduce confusion and further implementation delays, as well as increase user satisfaction with the system.

In light of the many problems identified by the Committees and by the State Comptroller which shed some doubt as to the viability of this important (and expensive) project, the Office should share with the Legislature its plan for the continued development of the CONNECTIONS system, and provide quarterly status reports.

The number of Family Court judges across the State should be increased. This will greatly speed and improve court decisions, and help handle the additional proceedings that will result from ASFA. To address this issue, legislation has been introduced in the Assembly that would add 24 new Family Court judges and 8 new multibench county court judges across the State (A.6886, Weinstein, et. al.).

As part of its overall reorganization, OCFS should be looking to streamline administrative processes, ensure that all child welfare workers are aware of State policies, and enforce these policies and procedures at the local level.

To ensure that planned reforms are actually put in place, the Committees recommend that the State Comptroller monitor the implementation of ACS' "Plan of Action" and OCFS' restructuring efforts and report to the Legislature with its findings.

Adequate provision of services to children and their families is fundamental to shortening or eliminating stays in foster care. It is therefore important that the State ensure that sufficient services are available, and that service quality, timeliness and appropriateness are assured.

The need for adequate and timely services will become especially critical with the new timetables under ASFA. Federal and State laws now require that key actions occur at an earlier date (e.g., court reviews, and filing petitions to terminate parental rights), which will make the timely provision of services more important than ever.

Highlighting this crucial State responsibility, Marlene Halpern, of Legal Services for New York City, noted:

One of the major reasons children stay too long in foster care is the inability of the state agency to assess and deliver the services necessary for children to be reunited with their families. [Furthermore] an overburdened Family Court system, which will be even more congested with these new expedited federal timelines, cannot assure that these services are delivered.(107)

The Committees' research and hearing testimony identified key issues relating to the following service areas which can impact on length of stay in foster care.

Child protective services

Preventive services

Substance abuse treatment for parents

Services for children

Adoption services

The issues raised here help to illustrate an underlying premise: to remedy the problem of lengthy foster care stays, one must address the system as a whole -- not part by part. While the Committees recognize that an in-depth evaluation of each of the many services available for children and their families would be useful in identifying those that need to be strengthened, such an examination is beyond the scope of this study.

Because a family may receive a combination of services at various times, inadequate services at any point in the system can contribute to a child entering and remaining in foster care longer than necessary. For example, insufficient preventive services at the front end may result in a child being removed from his or her family and "temporarily" placed in foster care; had the services been available, foster care might not have been necessary. At the back end, a lack of adoption services and adoption alternatives can cause a child to wait in foster care longer than necessary, before being placed in a permanent home. Furthermore, insufficient independent living services - which are intended to prepare adolescents who are not going to be placed in adoptive homes to live productive adult lives - can have lasting effects long after the individual has left the foster care system.

Equally important to ensuring that appropriate services are available is ensuring access to these services. The Committees learned that lack of access is a common problem in both rural and urban areas. Some barriers to access include: waiting lists due to insufficient services (e.g., drug treatment programs for parents); lack of transportation for parents and children to obtain services; lack of day care while parents are in treatment; cultural and language differences between caseworkers and the families they serve; lack of planning for services by uninformed and/or inadequately trained caseworkers; and uncooperative parents, children or caseworkers.

Child Protective Services units (CPS) are established in each social services district to investigate reports of suspected child abuse and maltreatment. Such investigations are critical to ensuring the health and safety of children who may be at risk.

According to State law, an investigation must be initiated within 24 hours of receipt of a report and must include an assessment of the safety of each child in the home. A determination must be made within 60 days as to whether there is some credible evidence that abuse or maltreatment has occurred.(108) If evidence is found, the CPS worker must make such decisions as: whether to keep a case open for services, whether a petition should be filed for an order of protection or other services, whether the child(ren) should be removed and placed in foster care, and whether and when it is appropriate to close a case.

A court-ordered report on New York City's CPS operations by the Marisol case review team found numerous deficiencies in ACS's investigations and provision of protective services. Some critical findings:

-- In key areas of CPS investigations - including assessment of child safety and the risk of future abuse and maltreatment, completeness and adequacy of investigations, case decisionmaking, and supervision - ACS performance fell below legal standards and standards of good practice. For example, within the first 24 hours following a report, the required contact was either not made or did not result in an adequate assessment of safety in 31% of cases.(110)

-- In more than half of CPS cases (56%), the protective concerns in the case required the provision of services. However, of these cases, 30% did not receive the needed services. For another 12%, a referral for services was made but services were not received (refused by family, no space in program, etc.).(111)

-- Supervisory review was often lacking or cursory in key case decisions. Such supervision is needed to ensure that appropriate decisions are made by less experienced staff, and that proper services are provided. For cases in which children were placed in foster care during an investigation, only 72% contained documentation that either a supervisor was consulted prior to the removal or that such a consultation was not possible due to the emergency nature of the removal. Furthermore, although most decisions regarding determinations of abuse or neglect and case closings had supervisory oversight, the court appointed reviewers disagreed with 20% of the determinations and 27% of the closing decisions. This raises concerns about the quality of the supervisory review.(112)

A recent State Comptroller's audit also indicated problems with CPS case supervision throughout the State. This report cited the Office's own district CPS reviews conducted during 1996 and 1997, which found that in New York City there was no supervisory participation in 21% of determination decisions and in 9% of case closing decisions. Based on its findings, the Office required immediate corrective action by ACS. Furthermore, the Comptroller's own examination found that 31% of CPS cases from various districts across the State lacked evidence of proper supervisory review. (113)

State law defines preventive services as: "supportive and rehabilitative services provided...to children and their families for the purpose of: averting an impairment or disruption of a family which will or could result in the placement of a child in foster care; enabling a child who has been placed in foster care to return to his family at an earlier time than would otherwise be possible; or reducing the likelihood that a child who has been discharged from foster care would return to such care."(114)

Some examples of preventive services are: parenting skills training, rent subsidies, intensive home-based family preservation programs, respite care, day care, homemaker services, clinical services such as psychotherapy, emergency shelter, and day services to children. This section discusses the adequacy of preventive services in general.

By definition, preventive services are intended to prevent removals of children or to reunify families when they have been removed. Indeed, the Office's own most recently published data show that when available, these services do just that. For example, of families Statewide receiving preventive services in 1996, 90% successfully averted a subsequent foster care placement for at least 15 months.(115) Similarly encouraging data exist for New York City and Upstate.

Furthermore, preventive services cost less than foster care. In 1997, $2,470 was spent per child for preventive services, compared to $13,695 per child for foster care.(116)

Despite this encouraging data, recent studies show that there has not been an adequate focus on preventive services in New York City. As described earlier in the Financing section, the State's and local districts' continuing failure to meet both the federal and State Maintenance of Efforts for preventive services indicates that this problem is prevalent across the State.

A recent report by New York City's Court Appointed Special Advocates (CASA) found that of the cases CASA served between 1992 and 1996, only 17% of the families received any kind of preventive services, including substance abuse treatment, prior to foster care placement.(117) The report suggested that some of these placements might have been averted if preventive services had been provided. For example, while parental substance abuse was a factor in 72% of cases, only 20% of these families received any type of services prior to foster care placement.(118)

The court-ordered case review team in the Marisol case also found that in New York City, many families in need of services - including preventive services - did not receive them. For example, housing subsidies were provided in only 18% of cases where case reviewers determined there was a need; parenting skills training was only provided in 38% of needed cases; purchased preventive services were provided in only 33% of needed cases; and domestic violence services were provided in only 13% of needed cases.(119)

The Marisol study identified numerous barriers to the provision of these services. The most common barriers were lack of planning for the service by the caseworker and lack of cooperation by the parent. For example, where purchased preventive services were not provided, lack of caseworker planning was identified as a barrier in 41% of the cases while lack of parental cooperation was a barrier in 33% of the cases. For housing subsidies, the most common barriers were evenly spit between lack of planning and parental cooperation (35% each). The most common barriers to provision of domestic violence services were: lack of planning or referrals by caseworkers (63% of cases), and lack of parental cooperation (20%). For parenting skills training, lack of parental cooperation was more common (56%) than lack of planning (15%).(120)

Although the study did not find service availability and adequacy to be a frequent barrier to service provision, its findings are based on the number of families that were actually referred to services. One can infer that if caseworkers had identified, planned, and made referrals for all the needed services identified by the case reviewers, the system would have had to accommodate many more families. It is safe to assume that this increased demand would have had an affect on service availability and adequacy.

As mentioned earlier in this report, the inadequate provision of preventive services was further compounded by the Block Grant, when counties shifted funding away from preventive services. Instead, priorities were placed on child protective services and foster care, and many preventive programs were scaled back or even closed. Because of this continued emphasis on foster care, there is a concern that in some instances foster care is being used as a preventive service. As ACS Commissioner Scoppetta testified, in New York City, 22% of children return home from foster care within 90 days.(121) He noted that there is a higher rate of recidivism among children who stay the shortest periods of time in foster care because their families do not receive the aftercare services and support they need.(122) In response, Marlene Halpern, of Legal Services for New York City, testified:

[I]t seems to me that we're using foster care as a preventive service, because if those children could go home in 90 days, why couldn't they be serviced in their home safely with services? Why do they have to be removed?...[O]f course, there's probably a certain population where there were maybe emergency situations...But children should not be put in care for short terms like that if they can be kept at home safely with services.(123)

This section highlights a key area where services to parents have been found lacking: substance abuse treatment services. There is growing acknowledgement that there is a high correlation between substance abuse in families and those families' involvement with the child welfare system, including foster care. Yet programs to treat substance abuse, which are among the most critically needed services to stabilize families, have not received adequate support.

Judge Nicolette Pach, of the Suffolk County Drug Treatment Court, noted that between 1995 and 1997, abuse and neglect cases in Suffolk County increased 38%, from 1,400 to 2,250, and that 75% of these cases involve parental drug and alcohol abuse. Judge Pach linked long stays in foster care to the traditional child welfare system's and the court system's approach to drug treatment. She told the Committees:

...I can unequivocally tell you that the main reason children are placed in foster care and linger there is parental substance abuse. I urge the committee[s] to consider how we can more effectively address parental substance abuse both in the court system and elsewhere.(124)

A key problem is that agencies and the Family Court have been unsuccessful in getting parents to stop using drugs through referrals to traditional drug treatment programs. This is due to numerous barriers, including: difficulties in finding an appropriate program with an opening, waiting lists for the best programs, delays in obtaining Medicaid funding, and transportation and child care difficulties.(125) Furthermore, once a parent is enrolled, he or she often drops out for a variety of reasons before completing a program. Clearly, many factors affect the successful provision of services to drug-addicted parents, particularly women.

In a 1998 publication by the NYS Appellate Division, First Department, entitled Representation of Chemically Dependent Women in the Family Court, it was reported that:

Barriers to women entering treatment and achieving recovery have not been adequately explored. This is particularly true for chronically addicted women. Presenting signs and symptoms of substance abuse may vary by gender and result in differences in treatment needs and outcomes. Current approaches to prevention and treatment are not reaching women who are chronic addicts. Perceived and actual costs (e.g., financial, personal) of obtaining addiction treatment services and systemic barriers to access restrict representation of women in treatment and prevention programs. Lack of population-specific treatment resources ranging from residential to intensive outpatient services discourage participation. Woman's role responsibilities and obligations may be significant factors in treatment access and completion.(126)

The above report also advocates for the provision of a continuum of services and resources, as well as a range of treatment options for female clients. It stresses the importance of addiction services for women, including such basic necessities as transportation, child care, safe housing, and employment and vocational skills training. Social risk factors faced by many women, including child abuse, domestic violence, immigration matters and transitioning from welfare to work, must also be the focus of treatment.(127)

The Committees heard testimony that substance abuse treatment services Statewide are insufficient. Witnesses from across the State testified about long waiting lists to get into treatment programs, and the inability of services to meet parents' needs (e.g., many programs treat either drug abuse or alcoholism, but not multiple addictions).

Further complicating matters is that drug and alcohol treatment programs are not specifically included in the definition of mandated preventive services under section 409-a of the NYS Social Services Law and related regulations. Therefore, referrals to such services are not required to be provided.

ASFA focused states on the issue of substance abuse treatment in two ways: 1) by including a supplemental provision which requires states to report to Congress on the scope of substance abuse and services provided to families involved with the child welfare system; and 2) by allowing states to apply for a Title IV-E waiver in order to fund demonstration projects that would identify and address parental substance abuse problems that result in the placement of children in foster care. Such demonstration projects could include placement of children with their parents in residential treatment facilities designed to promote family reunification and ensure the health and safety of the children in such placements.

At the Committees' hearings, representatives of the Office agreed that the services available to deal with substance abuse are generally very inadequate. Bill Baccaglini, Assistant Commissioner for Policy, told the Committees that Commissioner Johnson was formally studying the issue and would be making legislative and/or budget recommendations to address the need for improved services. No legislative recommendations have been proposed to date. The Executive's 1999-2000 budget does include a $4 million appropriation to intensify outpatient services for women with children, as well as for persons needing HIV services, and other special populations.

Several recent initiatives have attempted to deal with the growing problem of parental substance abuse in child welfare cases.

The Family Rehabilitation Program (FRP). This community-based program, instituted in numerous locations in New York City in 1991, offered intensive preventive services as well as substance abuse treatment and support to families with drug exposed infants at risk of foster care. The substance abuse treatment component involved intensive monitoring, including daily urine screening and 3 or more home visits per week, as well as on-site day care and parenting classes.

According to the Council of Family and Child Caring Agencies (COFCCA), the FRP's met with an encouraging degree of early success, which has been documented in studies by the National Development and Research Institute.(128) Originally, 31 FRP programs were established, serving 700 families and 2,000 children per year. However, with reduced State and City funding starting in 1995 -- again, in part driven by the Block Grant -- the substance abuse treatment component was eliminated and 13 FRP's were closed entirely.(129)

Numerous advocates testified about the impact of this program cut on the City, especially since no similar treatment programs exist. Lauren Shapiro, of Brooklyn Legal Services Corp., testified:

There are tens of thousands of children in foster care in New York City whose parents have drug addictions and under 200 residential beds...Clearly, we must expand the model of the Family Rehabilitation Program in New York City.(130)

Family Drug Treatment Court. The recently instituted Family Drug Treatment Court is another initiative aimed at ensuring that parents receive appropriate and timely substance abuse treatment services, with the goal of helping families stay together. For parents selected to participate in this program, the courts use a case management team - comprised of social workers and drug and alcohol specialists - to identify and enroll the parent in appropriate treatment. The court then closely monitors the parent's progress and the child's well-being. The parent is required to make regular court appearances and submit to drug testing. If they fail to meet the court's requirements, they can be sanctioned and ultimately lose their parental rights.(131)

There are various services available for children at different points in the child welfare system. They are provided either while the child is still in the home (protective/preventive), when the child is in foster care, or after the child has returned home. Some are intended to help preserve or reunify the family, while others are meant to maintain the health and well-being of the child.

This report highlights some issues raised at the Committees' hearings and identified through the Committees' research efforts, relating to the adequacy of services for children in foster care. Specifically, this section discusses the adequacy of medical, dental and mental health services, as well as caseworker contacts. When such services are not provided or are delayed, the well-being of children is jeopardized and children may stay longer than necessary in foster care.

Mental health, dental and medical treatment are among the basic services to which children in foster care are entitled by State law. However, the Committees heard testimony that such vital services are inadequate around the State, and that referrals to services are slow.

Essex County Social Services Commissioner John O'Neill emphasized that the amount and availability of services has a direct impact on families:

[L]ack of services (e.g., psychiatric, therapeutic residences, psychotherapy for young children) and transportation in our county means real loss of time spent working with families!(132)

Darlene Ward, Executive Director of New York State Court Appointed Special Advocates - advocates for the interests of children in foster care - agreed:

Nearly every case involves a mandate for mental health services for the child and often the caregivers as well. Particularly in the rural poor counties served by CASA, services are scarce and available transportation to services is rarer still.(133)

Representing CASA in New York City, Janet Acker noted:

Certainly this varies from agency to agency, but in a significant number of our cases we have seen very slow referral processes for services for children in foster care (therapy, school placements and evaluations, even medical treatment). For children who were placed because of behavioral issues or special needs, the longer it takes to address their problems the longer period of time before they can go home.(134)

Numerous studies also show that these services are not being provided equitably to all children in foster care, and that services can vary depending on whether they are provided by a voluntary agency or directly by the local social services district. For example:

-- A State Comptroller's audit found that 21% of children in foster care (sampled from 4 districts around the State including New York City, between 1993-1995) did not receive mandatory medical and dental examinations. For dental services, children in kinship foster care received fewer services than those in non-relative care (39% in kinship care were lacking services, compared to 31% in non-relative care).(135)

-- The Marisol case review team found that in New York City, only 79% of children that entered ACS direct-care during 1996 received appropriate periodic medical and dental exams, compared with 90% of children under the care of contract agencies.(136)

-- Overall, the review team found that 26% of children in foster care in New York City had an unmet medical, dental or mental health need.(137)

Some of the barriers to medical, dental and mental health services that have been identified include: caseworkers do not identify the need, timely referrals are not made, services are inadequate, there are waiting lists for the best (or only) programs, requested services are not approved, and the child or foster parent is not cooperative in receiving the services.

The reports by the State Comptroller and the Marisol case review team also found that for children in foster care in New York City, caseworker contacts with children, parents and foster parents, as well as visitation between children and parents, do not always occur as required by State regulations. Such services are required to ensure a child's health, safety and development while in foster care, and to monitor a family's progress toward reunification. When these periodic contacts are not made, children may be at risk in their foster care placement, or reunification efforts may be delayed. Together these reports cover children in foster care between January 1, 1993, and March 31, 1997.

The Comptroller's audit found that:

In 10% of both kinship and non-relative foster care cases, the required contacts with the child were not made.

For contacts between caseworkers and parents, as well as visitation between parent and child, parents often failed to keep appointments or could not be found, despite efforts by the caseworkers to make the contacts. The audit suggested that more could have been done to facilitate the contacts.(138)

As noted under the Oversight section of this report, neither the Office's response to the audit, nor ACS' corrective action plan, address the Comptroller's recommendation that the Office ensure all required contacts are made.

The Marisol report showed similar findings:

51% of children in foster care were not even seen monthly by a caseworker, even though the majority of children required biweekly contacts.(139)

Disparities exist depending on the type of placement and the agency responsible. Children in kinship foster homes were less likely to have monthly casework contacts than children in non-relative foster homes (37% vs. 55%). For all placement types, only 26% of children placed with ACS had monthly casework contacts, compared to 51% of children placed with contract agencies.(140)

19% of parents did not receive any caseworker contacts during the 6 month period under examination (contacts are required at least monthly when a child has the goal of return home). The case reviewers found that some explanations for the lack of contact were unacceptable.(141)

Once a child in foster care is freed for adoption (i.e, once parental rights have been terminated), the agency is required to provide adoption services to find and facilitate an adoptive placement. Such services include: evaluation of the child's placement needs and pre-placement planning; adoptive parent recruiting, screening and training; placement planning; supervision and post adoption services.(142) The purpose of these services is to expedite the placement of children into permanent, loving homes.

Meeting State-set adoption "milestones" and ensuring that adoption services are provided will become even more important under the new requirements of ASFA. The law now requires that agencies document child-specific efforts, including the use of cross-jurisdictional resources, to find and finalize adoptive or other permanent homes for children with a goal of adoption or other permanent placement. Federal incentives are also offered to states that increase the number of adoptions finalized over a base year.

Despite the statutory requirements, the Committees heard testimony that some of these services are not being adequately provided, or are not provided in a timely manner. Furthermore, as mentioned earlier, the process to terminate parental rights is often delayed, exceeding State timeframes. These barriers to adoption cause children to remain in foster care longer than necessary.

Joanne Eddy, of the Salvation Army, Syracuse Area Services, testified:

In our experience it is children who have a goal of adoption who are most likely to languish in long-term foster care. Coordination of recruitment and placement efforts by all partners of the community along with the availability of comprehensive post-legal support services is the key to finding permanent families for these children.(143)

Ms. Eddy also noted that one barrier to finding adoptive homes is the attitude of caseworkers, who believe some children are unadoptable.

Essex County Commissioner John O'Neill discussed other barriers:

The adoption process has too many disincentives. Blue books [listing children available for adoption] are cumbersome and centrally located. Adoption information exchanges between counties is very time consuming. And...post-adoption services are inadequate to prevent disruptions. Additionally there is the real concern that adoption is often very difficult or impossible for older children, leaving one to question the wisdom of [terminating parental rights] for such children.(144)

Other problems often encountered by agencies trying to free children for adoption include: the reluctance by parents to relinquish their parental rights, the reluctance by relatives (e.g., grandmothers) to terminate their own children's parental rights, and adolescents' unwillingness to be adopted because they still have a bond with their parents.

To meet these concerns, permanency alternatives have been developed to increase the options for children and their families. Among them are open adoption and kinship guardianship. Many child welfare advocates support the use of these options as a way to expedite permanency when return home is not an appropriate goal, and to meet the new federal mandates.

Open adoption. The concept of "open adoption" was first recognized in New York State in 1990 when section 383-c of the Social Services Law was enacted. This section, which covers voluntary surrenders for adoption of children in foster care, requires that the surrender instrument state that the parents are "giving up all rights to have custody, visit with, speak with, write to or learn about the child, forever, unless the parties have agreed to different terms or if the parent registers with the adoption information register" [emphasis added].

This provision has allowed for a more flexible approach towards adoption, and was intended to remove some of the barriers to adoption in cases where it is deemed appropriate. Parents who willingly surrender their child for adoption are now able to include in the agreement such provisions as receiving updates regarding the child's progress from the adoptive parents, and/or even having direct contact with the child through phone calls, letters or visitation.

Although sometimes considered controversial in nature, open adoptions have successfully provided permanency alternatives to children and their biological parents. Such arrangements can also ease the burden of the adoptive parents in cases where children are eager to pursue questions concerning their background and their biological families. In theory, open adoptions can also be a solution for children who linger in kinship foster care placements, but whose families do not wish to cut ties to the children's parents.

Although open adoptions are currently permitted under State law, the Committees learned that they are not often done for a variety of reasons. Janet Acker, of NYC CASA, cited some of these reasons:

One reason families have not taken advantage of conditional surrender/open adoption more often may be that they find it too difficult, emotionally, to admit to themselves and their children that they cannot care for them. Objectively, of course, it is obviously kinder to the children to allow them a stable home, without false hope of going "home". Additionally, our staff reports that in certain instances court appointed attorneys [representing the parents], although they inform their clients of this option, rigorously counsel them against it. This happens even when the Termination of Parental Rights case brought by the agency is very strong. Parents then...lose any chance of retaining any visitation, even though that visitation is not guaranteed. What is needed is social work counseling for the parents; unfortunately, at this point there is often a combative relationship between the parent and the agency. Court appointed attorneys do not have the budget to hire a social worker in these instances.(145)

Lauren Shapiro, of Brooklyn Legal Services Corp., testified:

Although this mechanism has existed in the law for several years, it still is not widely used. Very few parents are aware of the option and few agencies encourage it as an option.(146)

Parents are not receiving a clear message about this permanency option from agency caseworkers and their own legal counsel. This affects children and families by slowing the adoption process, and could result in the unnecessary termination of parental rights in some cases.

Kinship guardianship. At the end of 1997, 33% of the foster care population in New York City was in kinship foster homes.(147) Such placements with caring relatives are often considered the best solution for children because they can maintain ongoing relationships with their families. Dr. Megan Mclaughlin, Executive Director/CEO of the Federation of Protestant Welfare Agencies, Inc., has underscored the importance of kinship foster care:

It is fashionable to assert that poor families - Black and Latino families - need to become self-sufficient and help themselves. The fact is that these families have a strong tradition of self-help, of which kinship foster care is a vital component. These families must be supported to assure the health and well-being of children.(148)

However, because the children are still in the child welfare system, such placements are not considered permanent homes. Furthermore, children remain in kinship placements longer than those in non-relative foster homes. In New York City, 72% of children in kinship homes at the end of 1997 had been there for over 3 years, compared to 43% of children who had been in non-relative homes for over 3 years.(149)

Numerous factors contribute to these longer stays, including a reluctance by grandparents, brothers, sisters, or other close relatives to adopt the child of a relative. Furthermore, these relatives may face financial difficulties supporting the child without the foster care maintenance subsidy they receive as kinship foster parents.

The Office must ensure that child protective caseworkers receive proper training and supervision in order to make appropriate decisions in child abuse or neglect cases. Legislation that passed the Assembly and has been introduced in the Senate (A.2379-A, Hoyt / S.3698, Rath) would require the Office to develop an on-going training curriculum that teaches child protective service workers the most up-to-date techniques and methods for child abuse investigations.

A greater emphasis needs to be placed on developing and funding innovative substance abuse treatment services, particularly for women with children. For example, the Family Rehabilitative Programs, with their drug treatment components, should be revived in New York City and expanded elsewhere. Furthermore, since women comprise a significant portion of persons in need of substance abuse services, more studies are needed to learn about issues unique to women and substance abuse treatment.

The Assembly's FY 1999-2000 budget resolution includes $9.5 million for residential and non-residential treatment programs targeted towards women with children, in an effort to avert foster care stays and assist in family reunification efforts.

A.6974 (Green) is a comprehensive legislative proposal that addresses problems facing female substance abusers with children, and establishes and formalizes interventions when a newborn tests positive for alcohol or drugs. Relevant to this issue is the bill's expansion of the definition of preventive services under section 409-a of the Social Services Law to include the provision of substance abuse treatment as a mandated preventive service. This would help ensure that needed services are identified and provided.

The Assembly's ASFA compliance bill (A.962 Green, et. al.) directed the Office of Children and Family Services to request federal authorization to develop a demonstration project (pursuant to section 301 of ASFA) that would identify and address parental substance abuse problems that result in foster care placements. Although neither the Senate nor the Executive agreed to include this provision in the final ASFA law, the Office should apply for the federal waiver for this important program.

Despite recent administrative initiatives, additional efforts must be made to find homes for hard to place children with a goal of adoption who are currently waiting in foster care, and to finalize the adoptions for those already placed in pre-adoptive homes. Such efforts will also be necessary to meet the requirements of ASFA.

The Office should issue clear guidance to local districts and voluntary agencies regarding all adoption options, and follow up to ensure they are being offered to parents. This information should be incorporated into caseworker training initiatives. The Office should encourage open adoptions as a viable permanency option when appropriate.

The Assembly has considered several pieces of legislation that would support contact between biological parents and their children, when all parties are open to and encourage this type of interaction.

-- A.6972 (Green) would provide for the disclosure of identifiable and sealed adoption and foster care records to adult adoptees when such disclosure is approved by the biological parents. This would protect the privacy rights of biological parents who wish to remain anonymous while promoting interaction between biological parents and their children.

-- The Assembly has also supported legislation that would give a parent who has surrendered a child pursuant to an open adoption standing to petition the court to enforce the rights reserved in the surrender (A.4230 - 1997-98; Green).

Another Assembly proposal, the Families in Transition Act (A.7646, Green et. al) would enhance permanency planning for families affected by HIV/AIDS in underserved social services districts. Almost 30,000 children have been orphaned by HIV/AIDS in New York State. This bill would help these children avoid foster care. It would facilitate permanency planning by providing needed transitional and legal services to families, legal custodians and other informal caregivers. A key provision would provide maximum financial support to the surviving children.

Kinship guardianships should be established as a permanency alternative, and such guardians should continue to be eligible for an adoption subsidy. A.4849 (Green, et. al.) would enact such a provision. To ensure federal funding for the subsidies, the Office should apply for a IV-E waiver available under ASFA.

Kinship guardianships would provide an alternative to adoption for families caring for the child of a relative. These permanent legal guardianships would give the guardian the same authority as the biological parent to make important decisions on behalf of the child (except for consenting to the adoption or surrender of the child). In addition to establishing kinship guardianships, the Assembly has proposed allowing kinship guardians to collect monthly adoption subsidies from the local districts. ASFA allows states to apply for a Title IV-E waiver to pay for the federal share of the subsidy. However, even if a waiver is not obtained, the lack of federal reimbursement would be offset by reduced State and local administrative costs.

NOTES

1. "Foster Care: State Efforts to Improve the Permanency Planning Process Show Some Promise", US General Accounting Office report HEHS-97-73, May 1997, p.1.
2. "An Update from the Multistate Foster Care Data Archive - 1983-1994", the Chapin Hall Center for Children, p.9.
3. Until January, 1998, the former New York State Department of Social Services (DSS) was responsible for administering the State's child welfare programs. Effective January 8, 1998, DSS was reorganized into the Offices of Children and Family Services (OCFS) and Temporary and Disability Assistance (TADA), within a new Department of Family Assistance. Under the reorganization, OCFS is now responsible for child welfare programs, as well as youth programs formerly under the State Division for Youth. Throughout this report, "the Office" is used to refer to OCFS and its predecessor DSS.
4. 1997 Monitoring and Analysis Profiles with Selected Trend Data: 1993-1997 (aka "MAPS"), NYS Office of Children and Family Services, pp. 14 and 17.
5. US Department of Health and Human Services' Adoption and Foster Care Analysis and Reporting System (AFCARS) data for September 30, 1996.
6. "An Update from the Multistate Foster Care Data Archive - 1983-1994", p.23. The median length of stay figures calculated by the Archive, which used data from the NYS Department of Social Services, are based on longitudinal case studies, as opposed to DSS' own MAPs reports, which use cross sectional data as of the end of the year. Because of the various approaches used to calculate length of stay, the resulting statistics are difficult to compare. This is a common problem in examining length of stay calculations.
7. Child Welfare Watch, Center for an Urban Future, (Spring/Summer, 1998. No., 3).
8. Ibid.
9. 1997 "MAPS" Report, p. 14.
10. "All in the Family: A Mixed Blessing - Research on Kinship Foster Care in New York City", NYC Court Appointed Special Advocates, January 1, 1998, p. 57.
11. "Third National Incidence Study of Child Abuse and Neglect", Andrea J. Sedlak, Ph.D. and Diane D. Broadhurst, M.L.A., U.S. Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth and Families, National Center on Child Abuse and Neglect. September, 1996.
12. It is important to note that many issues and concerns relating to child welfare are not new. There have been many studies and audits done over the years, some quite recently, that expose various problems with the system. Rather than reinvent the wheel, the Committees have drawn on these studies to spotlight ongoing problems with the system.
13. NYS Social Services Law, section 20(2)(b).
14. NYS Social Services Law, section 20(3)(d).
15. Transcript from March 18, 1998, public hearing in Albany, pp. 15-16.
16. March 18, 1998, hearing transcript, p. 26.
17. March 18, 1998, hearing transcript, p.303.
18. "Adoption Subsidy Program", NYS Comptroller audit report 96-S-2, issued 2/4/97.
19. The Child Welfare League of America (CWLA) is a nationally recognized not-for-profit organization which has developed standards for various areas of child welfare practice.
20. "Caseworker Deployment in Selected Child Welfare Programs", NYS Comptroller audit report 96-S-52, issued 2/10/98.
21. "Caseworker Qualifications, Training and Supervision in Selected Child Welfare Programs", NYS Comptroller audit report 96-S-87, issued 5/1/98.
22. "Kinship Foster Care", NYS Comptroller audit report 95-S-106, issued 11/22/96.
23. "Children in Foster Care at Voluntary Agencies Not Receiving All Required Services", NYS Comptroller audit report A-18-92, issued 5/24/94, and Follow-up Report No. A-3-96, issued 3/6/96.
24. "Caseworker Qualifications, Training and Supervision in Selected Child Welfare Programs" audit, op. cit., p. 20.
25. "Adoption Subsidy Program" audit, op. cit., p. 11.
26. "Kinship Foster Care" audit, op. cit., p. 17.
27. March 18, 1998, hearing transcript, pp.243-247.
28. January 15, 1998, letter from Commissioner John Johnson to Assemblymen Genovesi and Green.
29. "Caseworker Qualifications, Training and Supervision" audit, op. cit.
30. October 29, 1997, letter from Commissioner Brian Wing to Assemblymen Genovesi and Green.
31. NYS Social Services Law, section 398-d (1).
32. March 18, 1998, hearing transcript, p.279.
33. March 18, 1998, hearing transcript, p. 280.
34. Written testimony of Fred Brancato, p.2.
35. March 5, 1998, hearing transcript, p. 162.
36. "HomeRebuilders: The First Year's Experience at Little Flower Children's Services", Little Flower Children's Services, December 1994, p.20.
37. January 18, 1998, letter from Commissioner John Johnson to Assemblymen Genovesi and Green.
38. "All in the Family: A Mixed Blessing", New York City Court Appointed Special Advocates, January 1, 1998, p. 23.
39. Ibid, p. 27.
40. "Review of the Foster Care Housing Subsidy Program", report by NYC Comptroller and the Women's City Club of NY, August 1996, p.10.
41. Testimony of Barbara Salmanson, NYC Comptroller's Office, March 18, 1998 hearing transcript, p.12.
42. Written testimony of Lauren Shapiro, p.4.
43. March 5, 1998, hearing transcript, p. 181.
44. January 15, 1998, letter from OCFS Commissioner John Johnson to Assemblymen Genovesi and Green.
45. There are 58 social services districts. One district exists in each county in the State, except for New York City. The five boroughs of New York City together make up one district.
46. March 18, 1998, hearing transcript, p. 194.
47. March 18, 1998, hearing transcript, p. 41.
48. March 5, 1998, hearing transcript, p. 127.
49. Testimony of Joanne Eddy, March 3, 1998 hearing transcript, pp. 98-105.
50. Written testimony of Gabrielle Kreisler, pp. 7-8.
51. March 5, 1998, hearing transcript, pp. 188-191.
52. March 18, 1998, hearing transcript, pp. 31-33.
53. Written testimony of Marlene Halpern, pp. 2-3.
54. "Carrots and Sticks: The Impact of the New York State Family and Children's Services Block Grant on Child Welfare Services in New York City", Citizens' Committee for Children of New York, Inc., February 1998, pp. 19-29.
55. March 5, 1998, hearing transcript, p. 77.
56. January 15, 1998, letter from Commissioner John Johnson to Assemblymen Genovesi and Green.
57. Written testimony of Nicholas Scoppetta, p.5.
58. March 5, 1998, hearing transcript, p. 87.
59. New York State Judiciary Law, section 35 (3), and New York State County Law, section 722-b.
60. Written testimony of Marlene Halpern.
61. March 5, 1998, hearing transcript, p.181.
62. "Carrots and Sticks", op. cit., pp. 25 - 27.
63. 1997 "MAPS" report.
64. 1997 "MAPS" report, p. 5.
65. "Carrots and Sticks", op. cit., p. 19.
66. March 3, 1998, hearing transcript, p. 98
67. Written testimony of Sudha Hunziker, p.2.
68. Testimony of Fred Brancato, March 5, 1998, hearing transcript, p.195.
69. Testimony of Fred Brancato, March 5, 1998, hearing transcript, p. 194.
70. "Caseworker Deployment in Selected Child Welfare Programs", NYS Comptroller audit report 96-S-52, 2/10/98.
71. NYS Social Services Law, section 20-a.
72. Written testimony of Bronx Borough President Fernando Ferrer, p. 3.
73. March 5, 1998, hearing transcript, pp. 15-16.
74. "Caseworker Qualifications, Training and Supervision in Selected Child Welfare Programs", NYS Comptroller audit report 96-S-87, issued 5/1/98.
75. "Kinship Foster Care" audit, op. cit., pp. 5-6.
76. 1997 "MAPS" report, p. 18.
77. March 18, 1998, hearing transcript, pp. 295-296.
78. "Development of the CONNECTIONS System Supporting Child Welfare Services", NYS Comptroller audit report 97-S-68, p. 6.
79. Office of State Comptroller press release, "McCall Audit Finds Children at Risk from Costly Flaws in New Connections Computer system", 1/19/99.
80. March 18, 1998, hearing transcript, p. 192.
81. March 5, 1998, hearing transcript, p. 115.
82. "CONNECTIONS" audit, op. cit. p. 6.
83. Ibid, p. B-7.
84. March 18, 1998, hearing transcript, p. 183.
85. Ibid, p. 192.
86. "Connections" audit, op. cit., p. 10.
87. March 5, 1998, hearing transcript, pp. 181-182.
88. Written testimony of Judge Nicolette M. Pach, p. 3.
89. March 5, 1998, hearing transcript, p. 258.
90. "Services to Children in Foster Care and their Families", Marisol Joint Case Review Team, December, 1997, p.109.
91. NYS Social Services Law, section 392.
92. 18 NYSCRR section 430.12.
93. "Services to Children in Foster Care and their Families", op. cit., pp. 175-176.
94. 1997 "MAPS" report, p. 27.
95. New York State Social Services Law section 451 defines a "hard to place child" as a child who has not been placed for adoption within six months from the date he was freed for adoption or a previous adoption was terminated, or who possesses an attribute, condition, problem or characteristic which would be an obstacle to the child's adoption. These children, along with handicapped children (those possessing a physical, mental or emotional condition or disability which would constitute a significant obstacle to the child's adoption), are eligible for adoption subsidies.
96. 1997 "MAPS" report, pp. 25-27.
97. Data as reported by the Family Court to the Office of Court Administration's Office of Court Research.
98. Kids are Losing in Overtaxed Courts. Lack of Urgency Leaves Scores in Legal Limbo, by Paul Schwartzman with David L. Lewis, Anne E. Kornblut, and Kevin Flynn. Daily News (New York), December 28, 1997, p. 22.
99. Summary of the proceedings of the forum: "The Adoption and Safe Families Act: How New York's Legislative Approach Will Impact Families and Children", held at Fordham University, New York, NY, December 14, 1998, Dr. Virginia C. Strand, ed.
100. March 3, 1998, hearing transcript, p. 21.
101. Written testimony of Bronx Borough President Fernando Ferrer, p. 6.
102. Written testimony of Judge Nicolette Pach, pp. 3-4.
103. New York's ASFA statute applies only to criminal record checks of other adults in the home in the case of public adoptions.
104. Chapter 7, Laws of 1999.
105. NYS Social Services Law section 424-a.
106. NYS Social Services Law section 379.
107. Written testimony of Marlene Halpern, p.6.
108. NYS Social Services Law, section 424.
109. 1997 "MAPS" Report, p. 3.
110. "Investigations of Reports of Suspected Child Abuse and Maltreatment by New York City's Administration for Children's Services (ACS)", Marisol Joint Case Review Team, August, 1997, p. 3.
111. Ibid, pp. 56-57.
112. Ibid, pp. 67-68.
113. "Caseworker Qualifications, Training and Supervision in Selected Child Welfare Programs", NYS Comptroller audit report 96-S-87, issued 5/1/98, pp. 17-18.
114. NYS Social Services Law, section 409.
115. 1997 "MAPS" Report, p. 8.
116. 1997 "MAPS" Report, pp. 11 and 22.
117. "All in the Family: A Mixed Blessing", New York City Court Appointed Special Advocates, January 1, 1998, p. 21.
118. Ibid, p. 27.
119. "Services to Children in Foster Care and Their Families", Marisol Joint Case Review Team, December 1997, p. 168.
120. Ibid, p. 170.
121. March 5, 1998, hearing transcript, p. 117.
122. Ibid, pp. 111-112.
123. March 5, 1998, hearing transcript, p. 230.
124. Written testimony of Judge Nicolette Pach, p. 2.
125. Ibid, pp. 2-4.
126. Representation of Chemically Dependent Women in the Family Court, Appellate Division, First Department, Alfred D. Lerner, Presiding Justice, Antonina Munz and James C. Neely (Eds.), p. 75.
127. Ibid, p.80.
128. Testimony of Michael Arsham of the Council of Family and Child Caring Agencies, before the NYC Department of Mental Health, Mental Retardation and Alcoholism Services, November 29, 1995.
129. "Carrots and Sticks", p. 20.
130. Written testimony of Lauren Shapiro, p. 4.
131. Written testimony of Judge Pach, pp. 6-7.
132. Written testimony of Commissioner John P. O'Neill, p.2.
133. Written testimony of Darlene Ward, p.1.
134. Written testimony of Janet Acker, p. 4.
135. "Kinship Foster Care" audit, op. cit., pp. 7-9.
136. "Services to Children in Foster Care and Their Families", op. cit., p. 144.
137. Ibid, p.151.
138. "Kinship Foster Care" audit, op. cit., pp. 10-11.
139. "Services to Children in Foster Care and Their Families", op. cit., p. 97.
140. Ibid, p. 97.
141. Ibid, p. 104.
142. NYS Social Services Law, section 372-b.
143. March 3, 1998 hearing transcript, p. 99,
144. March 18, 1998 hearing transcript, p. 42.
145. March 19, 1998, letter from Janet Acker to Assemblymen Genovesi and Green.
146. Written testimony of Lauren Shapiro, p. 7.
147. 1997 "MAPS" Report, p. 18.
148. Keynote address presented by Dr. Megan McLaughlin at the ACS / NYC Board of Education Child Abuse Prevention Conference, Fordham University, March 18, 1999.
149. Ibid, p. 17.