The Legal Aid Society and Dechert LLP filed a class-action lawsuit in the United States District Court for the Eastern District of New York against the New York State Office of Children and Family Services (OCFS) and the New York City Administration for Children Services (ACS) challenging these agency’s practices that deny children in foster care ready, willing and able family members as foster or adoptive parents due to factors that are irrelevant to their ability to safely care for the children, as reported by The New York Times.

Under current law, a potential kin foster or adoptive parent must be barred from certification if they have previously been convicted of any one of nearly 300 mandatory excluding crimes, even if the crime took place decades earlier and even if officials believe that person can provide a safe home.

“The entire process is one that puts children needlessly at risk,” said Lisa Freeman Director of the Special Litigation and Law Reform Unit with The Legal Aid’s Juvenile Rights Practice.

Potential kin foster or adoptive parents may also be barred from certification if:

• either the prospective kinship foster parent or any person over the age of 18 residing in the home has any criminal history at any point in the past;
• or either the prospective kinship foster parent or any person over the age of 18 residing in the home has any history of “indicated” child abuse or neglect allegations with the Statewide Central Register of Child Abuse and Maltreatment (SCR).

Either history can be decades old and have no bearing on the relative’s current ability to care for the child. Moreover, the standard for “indicating” a report with the SCR is very low and only requires “some credible evidence”. And when ACS indicates a report, it is not required to take any action at all. The case may never be filed in Family Court and the family may never hear from ACS again. Thus, in and of itself, an indicated SCR record is not a reliable basis on which to determine that a relative actually committed child abuse or neglect, or that their home is not a safe foster home for the child.

Children are also not notified when their kin are denied certification and have no opportunity to challenge the denial. As a result, children are often placed into foster care in the home of a stranger, into a congregate-care facility, or placed into the same denied kin family’s home, but denied the resources provided to certified foster or adoptive parents.

It is well established that children who are removed from their parents and placed into foster care do much better if they are placed with family members compared to strangers. These “kinship placements” allow children in foster care to maintain connections to extended family and community and provide a sense of stability in the face of the trauma of familial disruption.