BILL NUMBER:S4529

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
homelessness 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,{1} the statute has proven invaluable in
preventing future societal costs by ensuring that the youth will have
the support necessary 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 extensions of placement in both the juvenile
delinquency and PINS statutes -i.e., Family Court Act §§ 355.3 and
756-a(f) - to include references to Family Court Act § 1091. 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 State Office of
Children and Family Services (OCFS), the oversight agency for foster
care in New York. The Appellate Division, Second Department, in Matter
of Jefry H., -A.D.3d-, 955 N.Y.S.2d 90, 2012 N.Y.Slip Op.  08007 (2nd
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 enacting 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
departments of social services. See 11-OCFS ADM-02 (March 3, 2011) at
pages 2, 7.


Professor Merril Sobie, in his 2012 Practice Commentary to Family
Court Act § 1091, indicated that "the 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 Jefry 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 article 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
fall 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 8). 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 Jacket, L. 2010, c. 342. Codification
of Matter of Jefry H. through enactment 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.

Legislative History: None. New proposal.


{1}Federal foster care assistance under Title IV-E 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].

                                BILL NUMBER:S4529A

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
homelessness 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{1} the statute has proven invaluable in
preventing future societal costs by ensuring that the youth will have
the support necessary 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 extensions of placement in both the juvenile
delinquency and PINS statutes -i.e., Family Court Act §§ 355.3 and
756-a(f) - to include references to Family Court Act § 1091. With
respect to juvenile delinquents, it would preclude youth reentering
foster care from being placed in facilities directly operated by the
State Office of Children and Family Services (OCFS).  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
oversight agency for foster care in New York. The Appellate Division,
Second Department, in Matter of Jefry H., -A.D.3d-, 955 N.Y.S.2d 90,
2012 N.Y.Slip Op. 08007 (2nd 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 enacting 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 departments of social services.
See 11-OCFS ADM-02 (March 3, 2011) at pages 2, 7.

Professor Merril Sobie, in his 2012 Practice Commentary to Family
Court Act § 1091, indicated that "the 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 Jefry 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 article 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
fall 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 8). 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 jacket, L. 2010, c. 342. Codification
of Matter of Jefry H. through enactment 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: OCA 2013-8 Senate 4529 (Sen. Felder) ref to
Children & Family Services

{1} Federal foster care assistance under Title IV-E 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 110-351).