New York top appeals court finds alternative short-term foster care program ‘impermissible’

ALBANY, N.Y. (CN) — New York’s highest state court on Thursday reversed a lower appellate court, ruling that the state’s Office of Children and Family Services was not permitted to administratively create the “Host Family Home” program to function as a parallel alternative to New York’s existing foster care system without the required guardrails of state social services regulations.

The New York Court of Appeals ruled the “host homes” provisions of legislation — which allow parents to temporarily place their children in custody of an agency without losing their parental rights — while similar to New York’s statutory voluntary foster care regime, lack the mandate of judicial oversight that is incorporated into the state foster care program.

“The Host Family Home regulatory program must be annulled because it undermines the carefully designed foster system, and contravenes various critical statutory protections the legislature saw fit to include in that system,” Associate Judge of the Court of Appeals Anthony Cannataro wrote in the high court’s decision.

“The statutory foster care system is the product of decades of legislative reform intended to strengthen and standardize the state’s previous informal foster care regime, whereby parents placed their children in foster homes with little to no state assistance or judicial oversight,” the state’s highest court wrote. “It is not clear which of these statutes authorize the Host Family Home program.”

The Court of Appeals noted in its ruling that the state’s primary foster care system requires the Office of Children and Family Services to offer appropriate “preventive services,” intended to help resolve the familial impairment or disruption so that the child need not be separated from the family home, before permitting parents to place a child in temporary foster care.

The agency must also investigate whether any known family or friends could take care of the child before authorizing placement and must place siblings in the same foster home unless joint placement would not be in their best interests.

The Manhattan-based nonprofit charity Lawyers For Children — joined in a 2022 lawsuit filed in a Rensselaer County court by the Legal Aid Society and Legal Aid Bureau of Buffalo — argued New York state’s Office of Children and Family Services lacked statutory authority to adopt regulations that created a system of voluntary placement of kids in “host homes” as part of its foster care system and called the program a “shadow” system that lacked procedural safeguards as outlined by law.

The groups called the Court of Appeals opinion Thursday “a major victory for children and families across New York.”

“The court made clear that the state cannot separate families without due process and the protections required by law. Any program overseen by the state that removes children from their homes must include counsel, court oversight, and accountability," the trio of legal services organizations wrote in a joint statement. “This decision honors longstanding laws and policies that prevent children from being unnecessarily separated from their families and protects the rights of children and parents.”

Host Family Homes support families who need temporary help caring for children during a surgery, illness or death in the family or other temporary family crisis.

Parents can place their children in the Host Family Home program for up to six months at a time, which can be extended for indefinite six-month increments until the child turns 18, while the parents still retain legal custody of their child and can demand their immediate return at any time.

The groups had claimed in their Article 78 petition that the “Host Homes” regulations unlawfully lack any requirement that the agency first attempt to place children with kin before placing them with strangers and have no required court approval, judicial oversight of the placement or any appointment of counsel.

“Despite the great similarity to foster care, the Host Homes program would strip away the core protections afforded children and parents under the current statutory framework governing voluntary placement,” the groups wrote.

The Office of Children and Family Services, meanwhile, argued on appeal that the Host Home program offers temporary caregiving assistance for families who do not have the support network needed to temporarily place their child in the care of family or friends, while averting the need for more formal child-welfare intervention.

During oral arguments before the Court of Appeals in April, Office of Children and Family Services attorney Beezly Kiernan asserted the program is designed for much more temporary stays, compared to the durations in the traditional foster care program.

The average stay in Host Homes is only 10 days, he repeatedly told the appeals court.

“There’s a 99% rate of returning the children to the parents, and those are better numbers than foster care,” he said.

Following the 2022 suit, a lower state court sided with the Office of Children and Family Services that the petitioners lacked standing and dismissed the proceeding.

On appeal, an intermediate New York appellate court reversed, holding in a 3‑2 decision that petitioners sufficiently established standing by claiming injury from “interference with their organizational missions and contractual obligations to represent children in voluntary placement proceedings.”

The majority held that the program provides preventive, temporary care rather than foster care; that parents’ longstanding right to place out children supports the regulatory scheme; and that the family services office acted within its rulemaking authority.

In an appeals brief to the New York Court of Appeals, the advocacy groups argued the appellate majority wrongfully defined the legislature’s policy.

“Indeed, the Legislature determined that the lack of protections and safeguards described above, especially the lack of appointment of counsel, is extremely harmful to the young population represented by appellants,” they wrote. “Their clients in voluntary placement proceedings are low-income children, often in crisis and in great need of social services. Under the Host Homes program, these children would have no voice in the mechanics of their placement and no legal recourse to object to the placement or mandate needed services at any point."

Representatives for the state agency did not immediately respond to request for comment Thursday.

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