Nonprofits look to New York top appeals court to reform ‘shadow’ foster care system

ALBANY (CN) — Foster care advocates urged the New York Court of Appeals on Tuesday afternoon to revive their case to annul a program they say arbitrarily establishes a parallel, extrajudicial system of child placement without the same oversight or chain of liability as the state’s existing social services regulations.

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 — says New York state’s Office of Children and Family Service 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 system is not perfect, and many of us work for reform within the system, but the answer is not to transform and modernize the system as a regulator and create an entirely new system,” Proskauer Rose pro bono partner William C. Silverman argued to the seven-judge panel of the state’s top court.

“The answer is to regulate the system you’re given and to do a better job in making sure that system works,” he added.

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.

The groups had claimed in their Article 78 petition 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.

Justice Shirley Troutman pressed the Office of Children and Family Service, using the plaintiff’s description of Host Home as a “shadow” foster care system: “So how is this not creating a shadow system without oversight,” she asked.

“Why is the state involved, if the parents are just free to do whatever they want, why is the state involvement here, but without the legal protections not, in effect, the creation of a shadow foster care system where no one’s responsible,” Troutman added.

Office of Children and Family Service attorney Beezly Kiernan maintained the program is designed for designed for much more temporary stays, compared to the durations in the traditional foster care program.

“The legislature created a voluntary placement regime, and it still exists, but it is voluntary. It’s never meant to be the only option for parents in crisis,” Kiernan said.

The average stay in Host Homes in only ten 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.

The agency argues on appeal that the Host Home program offers temporary caregiving assistance for families who do not have 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.

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

On appeal, an intermediate New York appellate court reversed, holding in 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 family services office acted within its rulemaking authority.

In an appeals brief to 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."

The Court of Appeals took the matter under submission and did not rule from the bench Tuesday.

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