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Administrator of Children’s Services Brings Suit Regarding Placement of Child



In this proceeding under Family Court Act article 10, the New York City Corporation Counsel, on behalf of the Administration for Children’s Services, seeks leave of the court to allow the respondent’s placement with the Commissioner of Social Services [CSS] to lapse, in light of the respondent’s placement with the New York State Division for Youth [DFY].

This court placed the respondent, now fourteen years old, with CSS on October 22, 1991. The Commissioner of Social Services brought a neglect proceeding against the respondent’s father, after the father left respondent in the care of a girlfriend without making any provision for the child’s care. Respondent’s mother died in 1987. CSS worked with the father for the respondent’s return to his care for four years, during which time the father intermittently was incarcerated. In the summer of 1995, the 13 year old respondent ran away from foster care and took up residence with his father.

On September 28, 1995 the respondent’s father took the respondent with him to steal an automobile from the parking lot of a Nassau County station of the Long Island Railroad. Both were arrested. The father was convicted of grand larceny and remains incarcerated. A delinquency petition filed against the respondent resulted in an admission to unauthorized use of an automobile [Penal Law 165.05[1]]. The Family Court of Nassau County transferred the delinquency proceeding to this court for disposition.

CSS is required to file an extension of placement petition at least sixty days prior to the expiration of the child’s placement in foster care [Family Ct. Act 1055[a]]. The anniversary of Peter R.’s foster care placement was October 22, 1996. Placement with CSS has been temporarily extended pending the decision of the Corporation Counsel’s application. The facility notes that the agency which manages Berkshire Farm is attempting to find a foster care family for the respondent, and recommends that the respondent “remain in [CSS’] foster care system”.

The Corporation Counsel urges this court to allow placement with CSS to lapse, not because the respondent is no longer in need of foster care, but because “DFY placement without a CSS placement does not, in any way, diminish the protection afforded children” in CSS foster care who are found to be delinquent. Corporation Counsel notes that the Family Court in a delinquency proceeding has the authority simply to continue the delinquent child in an existing foster care setting.

The common features of placement under Family Court Act articles 3 and 10 lend a syllogistic appeal to the Corporation Counsel’s argument. Moreover, duplication of judicial and executive efforts should be avoided in the interest of economy of resources. This argument especially is attractive in a case such as this, where it appears that there is little hope of the respondent being discharged from foster care to the care of his father. Nonetheless, the court finds that to discontinue the foster care placement under article 10 would disadvantage the respondent and deprive him of statutory protections to which he is entitled.

The Commissioner of Social Services has responsibility for both neglected and delinquent children placed with CSS by the Family Court, and must provide services to both categories of children, as well as to children found to be persons in need of supervision [PINS], destitute or abandoned. Moreover, under federal mandate, CSS must provide services to prevent such children from coming into or remaining in foster care unnecessarily. Consequently, the Family Court must consider the efforts made to prevent or to remove the need for placement under both articles 3 and 10 of the Family Court Act. These similarities, however, do not result in an equivalence of the conditions of placement with DFY and CSS, even in a foster care setting.

On the most basic level, foster care placement under Family Court Act article 10 is distinct from DFY placement under article 3, since in the former there is never the possibility of placement in a restrictive setting. A child in foster care who is adjudicated delinquent may be placed in a setting more restrictive than a foster boarding home or group home, if such placement is the least restrictive alternative consistent with the respondent’s needs and the safety needs of the community.

As the Corporation Counsel points out, where the safety of the community permits and the respondent’s needs require placement, an adjudicated delinquent may be placed directly with CSS. However, in such placements even though the court specifies that the delinquent child be placed by CSS with a particular agency or class of agencies, the specifics of the placement are entirely within the discretion of the Commissioner, and the court lacks the authority further to condition or to restrict the placement.

A delinquent child may be placed into foster care by DFY under several circumstances. During the period of placement, DFY may conditionally release the child under DFY supervision. “If, in the opinion of [DFY], there is no suitable parent, relative or guardian to whom a youth can be conditionally released, and suitable care cannot otherwise be secured…”, the child may be conditionally released to an authorized agency. Once the placement expires, if the safety of the community no longer requires that the respondent continue in placement, and the best interests of the child permit, the child is returned to the custody of the parents.

It is apparent from these statutes that once the child is placed with DFY or with CSS under Family Court Act article 3, the specifics of placement are within the discretion of the commissioners of one or the other agency, and are not subject to judicial review beyond the specific terms of the dispositional orders permitted by statute. There is no guarantee that Peter R. will be placed in a foster home setting within any specific period of time. History demonstrates a chronic shortage of foster homes, particularly for delinquents. The Social Services Law expressly recognizes that placement in agency boarding or group homes may be necessary, even though a more home-like setting is appropriate, because no qualified foster homes are available in a given district.

Upon a petition to extend placement under Family Court Act article 3, the respondent, the presentment agency, and the agency with which the child has been placed must be notified and have an opportunity to be heard. Extension is in the discretion of the court, which must consider whether reasonable efforts, consistent with the safety of the community, were made to make it possible for the respondent to return home.

Upon a petition to extend placement under Family Court Act article 10, in addition to the child and the agency, the child’s parents and the foster parents also have a right to notice and to be heard. At such hearing, the court must consider whether there has been any change in the circumstances which gave rise to the child’s placement in foster care; whether the child services plan prepared under Social Services Law § 409-e requires modification, and in what manner the plan should be modified; the extent to which the parents and the agency have complied with the plan during the placement period; and whether the best interests of the child would be served by an extension of placement. An extension of placement under article 10 depends upon the parents’ present ability to care for the child and is determined by the child’s best interests.

It is apparent that the Family Court has much more discretion under article 10, than under article 3, to review and determine the conditions of a child’s placement in foster care. Moreover, the purpose of this review is to ensure that the needs of the child and of the child’s family are met, so that the child is not continued unnecessarily in foster care. The legislature and the courts have recognized that a PINS child who needs treatment and supervision, differs from a delinquent child who needs treatment, supervision and confinement, and the statutory response differs accordingly. So also, the delinquent who no longer requires confinement or even DFY supervision must be treated according to present needs. If the respondent no longer requires confinement, treatment or supervision in a DFY facility, any extension of his placement should be according to standards for the continued care of neglected children, with the appropriate level of judicial oversight of agency efforts to re-unite the respondent with relatives, or otherwise to plan for the respondent’s future.

Therefore, the respondent’s placement under article 10 should be extended to permit the agency to continue efforts to develop familial resources for the respondent in anticipation of his discharge from placement with DFY.

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