NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7339A
SPONSOR: Lupardo TITLE OF BILL: An act to amend the family court act, in relation to
reentry of former foster children into foster care
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.
Chapter 342 of the Laws of 2010, which permits youth who have "aged out"
of foster care at the age of 18 to reenter care, has provided a vital
"safety net" in cases where such youth would otherwise be facing home-
lessness or other adverse outcomes. Enacted at the time that Federal
foster care assistance first became available for youth between the ages
of 18 and 21,* the statute has proven invaluable in preventing future
societal costs by ensuring that the youth will have the support neces-
sary to fulfill the commitments that they must make to participate in
educational or vocational programs as a condition of reentry into care.
We submit this measure to clarify one aspect of the statute that has
caused some confusion, that is, the categories of former foster youth to
whom the statute applies. "Former foster care youth" is not defined in
Family Court Article 10-B and, although referenced in the permanency
hearing provisions (Family Court Act Article 10-A), no specific cross-
references are contained in provisions applicable to Persons in Need of
Supervision (PINS) or juvenile delinquency. This measure would remedy
that gap by amending the post-dispositional provisions regarding exten-
sions of placement in both the juvenile delinquency and PINS statutes
-Le., Family Court Act §§ 355.3 and 756-a(f) - to include references to
Family Court Act § 1091. Adjudicated juvenile delinquent and PINS youth
placed with a local department of social services (DSS) or the New York
City Administration for Children's Services (ACS), including juvenile
delinquents placed in New York City's "Close to Home" program, would be
able to seek reentry into care or, with their consent, be the subject of
a petition for reentry by the local DSS or ACS, as applicable. Adjudi-
cated juvenile delinquents placed with, or transferred to, the New York
State Office of. Children and Family Services (OCFS) for placement in a
non-secure level of care would be able to seek reentry or, with their
consent, be the subjects of petitions for reentry by OCFS with the cave-
at that such youth would be able to be placed in non-secure agencies
under contract with OCFS but not in facilities directly operated by OCFS
pursuant to Executive Law § 504. It would further amend Family Court Act
§ 1091 to add a definition of "former foster care youth" that explicitly
includes youth placed in foster care pursuant to juvenile delinquency,
PINS, child protective or destitute child adjudications, voluntary
placements and children freed for adoption but not yet adopted.
This measure would codify the only appellate ruling on the statute to
date and is consistent with the position taken by the OCFS , the over-
sight agency for foster care in New York. The Appellate Division, Second
Department, in Matter of Jefry ff., 102 A.D.3d 132, 955 N.Y.S.2d 90,
2012 N.Y.Slip Op. 08007 (2" Dept., 2012), recently reversed a Family
Court decision in which the judge had construed the absence of specific
language to mean that the statute did not cover PINS cases. In holding
that Family Court Act § 1091 does apply to PINS who had been placed in
foster care, the Appellate Division noted that the rationale for enact-
ing chapter 342 applies with equal force to all foster youth discharged
from care. The Court further noted the broad interpretation accorded to
the scope of the statute by the OCFS. Id. Consistent with Federal
requirements to treat all categories of youth eligible to receive foster
care assistance under Title IV-E of the Social Security Act identically,
the OCFS, in its administrative memorandum to local social services
districts, indicated that the statute applied to all former foster
youth, including PINS and juvenile delinquents placed with local depart-
ments of social services. See 11-OCFS ADM-02 (March 3, 2 011) at pages
2, 7.
Professor Merril Sobie, in his 2012 Practice Commentary to Family Court
Act § 1091, indicated that "(t)he language strongly suggests that the
statute applies to each and every foster child, and is not limited to
children who have been placed as a result of an Article 10 (child
protective) proceeding." Writing before the Appellate Division reversal
in Matter of lefty H., Prof. Sobie continued:
It would have been preferable if Article 10-B had been drafted to
explicitly apply to non-Article 10 placements. (See, by comparison,
Section 1087(a), which enumerates the placements for which Article 10-A
applies.) But the lack of an explicit provision is not necessarily
dispositive. It's difficult to conceive that the Legislature intended to
differentiate or discriminate between similarly situated "former foster
care youth", or that the legislative decision to craft a separate arti-
cle excludes non-Article 10 children (if Section 1091 was intended to be
limited to Article 10 placements, it would have presumably been added to
that Article). The issue will probably be raised and determined at the
Appellate Division level (unless the Legislature quickly amends Section
1091).
Predictably, most youth returning to foster care are those who had been
placed pursuant to child protective proceedings, but the option is
equally vital for those youth in the juvenile justice system. As the
Supporting Memorandum for chapter 342 stated:
Although the Family Court Act permits (foster youth) to consent to
continued foster care with its attendant supports and services until
they reach the age of 21, many make precipitous decisions to show their
independence and refuse to consent to remain in.care even when they are
desperately in need of assistance. Youth living in intact families are
not faced with such decisions; they may leave home to attend college,
but they do not abruptly terminate all connections with their families
and often continue to receive financial and other aid. Youth leaving
foster care, in contrast, often have no family to fail back on. For
them, independent living may be akin to falling off a precipice.
(Assembly Mem in Support, Bill Jacket, L. 2010, c. 342 at 81 The well-
documented problems faced by these youth increased incidence of school
drop-out, homelessness, unemployment, criminality and teen pregnancy are
even more likely to afflict the vulnerable juvenile justice population
upon discharge from care. In its memos to the Governor regarding chapter
342, both the Division of the Budget and OCFS noted the additional costs
to counties from these adverse consequences that would be averted by
permitting the option for youth to reenter foster care. See Memo of
Division of the Budget and Letter from OCFS General Counsel, Bill Jack-
et, L. 2010, c. 342. Codification of Matter of lefty H. through enact-
ment of this measure, therefore, will provide a cost-effective avenue to
support a particularly vulnerable population as they make the difficult
transition to independent adulthood.
This measure, which would have no fiscal impact upon the State, would
take effect immediately.
2013 LEGISLATIVE HISTORY:
Senate 4529-A (Senator Felder) (adv to 3rd Rdg.) Assembly 7339 (M. of A.
Lupardo) (reported ref to Codes)
*Federal foster care assistance under Title IV-s of the Social Security
Act became available as of October 1, 2010 pursuant to the Fostering
Connections to Success and increasing Adoptions Act of 2008 (Public Law
110351).
