Relates to notification procedures for the transfer of a child from one foster home to another; permits transfer without prior notice in certain circumstances.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4352
SPONSOR: Scarborough (MS) TITLE OF BILL: An act to amend the family court act and the social
services law, in relation to notification of the court, the parties and
the attorney for the child, when a child protective or foster care agen-
cy transfers a child from one foster home or other foster care placement
to another
PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to
ensure that the family court, the respondent's attorney and thus the
respondent, and the child's attorney and thus the child, in any proceed-
ing brought pursuant to Article Ten or Ten-A of the Family Court Act are
given prior notice of any change in a child's foster care placement, so
that, upon the court's own application or an application by the respond-
ent parent/guardian or the child's attorney, the court can review the
commissioner's decision.
SUMMARY OF SPECIFIC PROVISIONS: Section One adds a new §1017-a to the
Family Court Act to ensure that custodial agencies do not move children
from one foster care placement to another without advance notice, or, in
some circumstances, prompt after-the-fact notice to the court, the
respondent's attorney and the attorney for the child.
When the family court has directed pursuant to FCA §1017(2)(a)(iii) or
§1017(2)(b), or pursuant to FCA §1055(a)(i), that the child shall reside
in a specified kinship or non-kinship foster home, the agency may not
change the child's placement without prior court approval except in an
emergency and certain other specified circumstances. When the court has
not issued an order specifying a foster care placement, the agency may
change the child's placement without prior court approval, but is
required to provide advance notice as soon as practicable after a deter-
mination has been made to change the placement, and in no event later
than ten days prior to removal of the child from the present foster care
placement. Notification must be made by phone, e-mail or facsimile tran-
smission. The notice must contain the date the change of placement will
take place, the reasons for the change, and the name and phone number of
a social services official who may be contacted for further information.
if timely notice is not provided, the agency may not change the place-
ment until at least ten days after notice has been provided in the
manner required. Advance notice also must be provided, to the court and
to the child's attorney, when the agency has made a determination to
trial discharge the child to the parent(s) or other person(s) legally
responsible for the child.
Neither prior court approval nor advance notice is required when emer-
gency removal is necessary, nor when the foster parent has requested
removal of the child or a sibling of the child, nor when the parent(s)
or other person(s) legally responsible for the child and the child's
attorney have consented to removal, nor when the agency has previously
provided, on the record in family court, notice of a change of place-
ment. Whenever advance notice is not required, notice must be provided
as soon as practicable after removal.
Section Two adds a new subdivision (g) to § 358-a(3) of the Social
Services Law which contains like notice requirements, and also closes a
gap in the statute by providing the court with authority to direct that
the child shall reside in a specified kinship or non-kinship foster
home.
Section Three adds a new subparagraph (I) to § 1089(d)(2)(viii) of the
Family Court Act which closes a gap in the statute by providing the
court with authority to direct that the child shall reside in a speci-
fied kinship or non-kinship foster home.
Section Four adds a new § 1091 to the Family Court Act which contains
notice requirements applicable after a child has been freed for
adoption.
EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: There is no stat-
utory provision requiring notice before or after a change of foster care
placement.
JUSTIFICATION: The subject child in a proceeding brought pursuant to
Article Ten of the Family Court Act has a statutory right to counsel
under FCA § 249(a). The child also has a right to counsel under the Due
Process Clause of the New York State Constitution, which includes the
right to the effective assistance of counsel. Matter of Jamie TT., 191
AD2d 132 (3rd Dept. 1993). Before the court proceeds, the child's attor-
ney must be present. FCA § 1042. Indeed, the child's right to counsel is
of such magnitude that, if the family court proceeds to a hearing in the
absence of the law guardian, it is usually grounds for reversal on
appeal. See, e.g., In re Chad D., 261 AD2d 322 (1st Dept. 1999). As
well, the child has important liberty interests at stake in an Article
Ten proceeding. The removal of a child from parental custody constitutes
a seizure for Fourth Amendment purposes. Tenenbaum v. City of New York,
193 F3d 581 (2d Cir. 1999).
Also important - not to mention life-altering and potentially traumatic
for the child - is a determination made by the court, or by the custo-
dial agency, to change a child's foster care placement. The child's need
for the assistance of counsel when such decisions are made is critical.
Remarkably, however, the Family Court Act provides the child with no
protection when the agency changes the child's placement without court
approval. The family court does have the authority to order the agency
to place the child in a specific foster home. FCA §§ 1017(2)(a)(iii),
1017(2)(b); In re Brandon A., 50 AD3d 395 (1st Dept. 2008); Matter of
Shinice H., 194 AD2d 444 (1st Dept. 1993). However, it is more common
for the court to remand or place a child into the custody of the agency
without any specification, which leaves the agency free to move the
child from one location to another, subject only to a foster parent's
right to contest a removal through procedures in the Social Services Law
and related regulations, which do not include any requirement that the
attorney for the child be notified or be allowed to participate. Unfor-
tunately, it is common practice for custodial agencies to move children
from one foster care placement to another with out notifying the court,
the respondent's counsel, or the attorney for the child. Often, the
child is removed from a home in which he or she has resided for a
substantial period of time, and often the caretaker is a relative. The
attorney for the child may not learn that the child has been moved until
the next court appearance. By that time, an improper decision may
already have caused emotional harm to the child.
Similarly, the respondent parent/guardian has a statutory right to coun-
sel under FCA § 262(a)(i), and a State constitutional right to the
effective assistance of counsel. Matter of Ella B., 30 NY2d 352 (1972).
At any time prior to termination of parental rights, and particularly
when the permanency planning goal is reunification of the family, the
respondent has a compelling interest in the safety and well-being of the
child in foster care, and thus a change of placement is a critical stage
of the proceeding at which the respondent should have the full benefit
of counsel, and, if the respondent so desires, a meaningful opportunity
to be heard before the change is made.
The family court also has a compelling need for advance notice. The
court may have issued orders in reliance on its assumption that the
child would continue to reside in a particular home. The court may have
chosen, or approved of, that home for a good reason. The court needs
advance notice so that it can intervene if it sees fit to prevent or
postpone the move, or at least issue necessary protective orders.
The Family Court Act provides the family court with broad authority to
oversee foster care placements and issue orders directing agencies to
take appropriate action designed to facilitate family reunification and
the protection of children. It make little sense, therefore, to continue
to deprive family court judges, and the parties, of an opportunity to
have input into one of the most critical decision an agency can make -
the decision to uproot a child and move him/her to a new home or facili-
ty - before the move is completed.
PRIOR LEGISLATIVE HISTORY: 2010; Tabled
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: To be determined
EFFECTIVE DATE: 90 days after it becomes law
