FIJ Quarterly - Fall 2022 Edition

The Legal Landscape In New York, the law, as it relates to caregiving for a child who is under court jurisdiction as an alleged abused or neglected child, requires that courts and child welfare agencies make efforts to place the child with relatives. During the pendency of an abuse or neglect matter, the judge is required to order an investigation to locate “any non-respondent parent of the child and any relatives of the child, including all of the child’s grandparents, all relatives or suitable persons identified by any respondent parent or any non-respondent parent and any relative identified by a child over the age of five as a relative who plays or has played a significant positive role in his or her life” 13 and subsequently places the child in the care of such person. For dispositional purposes, the court may place (or continue the placement of) the child in the custody of a relative or other suitable person. 14 In either case, the court is required to direct the local department of social services to expedite the certification of ______________ 6 Ryan Johnson, Disrupt Disparities: Kinship Care in Crisis,, 2017, https://aarp-states.brightspotcdn. com/80/58/66bd55214a8b9581fae55af253b6/ disrupt-disparities-kinship-care-in-crisis-3-21.pdf, accessed October 6, 20022. 7 Mabry, supra note 2. 8 The Annie E. Casey Foundation. Kids Count Data Center . 2017 Current Population Survey Annual Social and Economic Supplement (CPS ASEC) Research File, 2018 CPS ASEC Bridge File, 2019-2021 CPS ASEC. Estimates represent a three-year average. https:// in-kinship-care?loc=34&loct=2#detailed/2/34/ true/2097,1985,1757/any/20160,20161, accessed August 10, 2022. 9 Johnson, Disrupt Disparities , supra note 6. 10 The Annie E. Casey Foundation. Stepping Up for Kids . Baltimore: The Annie E. Casey Foundation, 2012. SteppingUpForKids-2012.pdf, accessed August 9, 2022. 11 The Annie E. Casey Foundation. Stepping Up for Kids. Baltimore: The Annie E. Casey Foundation, 2012. SteppingUpForKids-2012.pdf, accessed August 10, 2022. 12 American Bar Association Center on Children and the Law. Child Law Practice Today, July/August 2017 Issue. Kinship Care is Better for Children and Families Heidi Redlich Epstein, groups/public_interest/child_law/resources/child_ law_practiceonline/child_law_practice/vol-36/july- aug-2017/kinship-care-is-better-for-children-and- families/, accessed August 10, 2022.

are not foster parents and privately provide full-time care for children, sometimes in the “hidden” or “shadow” foster system. 6 Moreover, funding and supports for kin caregivers of children taken into foster care by the formal child welfare system lag far behind their families’ levels of need. 7 There are approximately 2,614,000 children currently in kinship care across the country; 129,000 in New York. 8 These arrangements may be formal, legally recognized arrangements, or they may be informal. 9 “Across every generation and culture, grandparents, other relatives, and close family friends have stepped forward to raise children whose parents can no longer care for them. This time-honored tradition, known as kinship care, helps protect children and maintains strong family, community, and cultural connections. When children cannot remain safely with their parents, other family and friends can provide a sense of security, positive identity, and belonging.” 10 Why is Kinship care important? Simply, children do better when in the care of kin. “The notion that children do better in families is a fundamental value that cuts across all racial, ethnic, and socioeconomic boundaries. Kinship care helps children maintain familial and community bonds and provides them with a sense of stability, identity, and belonging, especially during times of crisis. Kinship care also helps to minimize the trauma and loss that accompany parental separation. For children in the custody of the state child welfare system, placement with caring relatives helps prevent the unnecessary stress of adjusting to foster care with adults they do not know. Kin can provide safe, stable, and nurturing care temporarily when children are removed from their homes, and they can provide care permanently when parents are unable to resume fulltime care of their children.” 11 Indeed, there are many benefits to placing children with relatives or other kinship caregivers, such as minimizing trauma, increased permanency, improved mental health benefits, improved sibling and community relationships, and maintaining ties to an adult for older youth. 12

the caregiver as a foster parent, should the caregiver desire it. 15 “Relative” is defined in the law in the way we traditionally think of relatives: those related by blood, marriage, or adoption; 16 but a suitable person includes “any person who plays or has played a significant positive role in the child’s life or in the life of the child’s family.” 17 Kin may also care for children pursuant to an order of custody 18 or guardianship. 19 Parents may also designate a person in parental relationship 20 for short periods of time—up to a year—without going to court. 21 These designations allow parents to delegate to substitute caregivers the legal ability to make education and medical decisions for their children. Federal law, too, has placed an emphasis on keeping children in family settings—first and foremost, in their own family with supports to promote safety—but also emphasizing expansive definitions of kin and prioritizing placement in family settings when children cannot remain in the home. “The Family First Prevention Services Act, signed into law in 2018, seeks to accelerate movement toward this vision, emphasizing prevention services, prioritizing family placement and incentivizing high-quality, residential treatment.” 22 Specifically, the law provides for the provision of prevention services to kin caregivers to help keep children out of foster care, reduces barriers for kinship foster homes, and encourages navigator programs to help kinship families, among other measures. 23 How Are We Doing? Although the use of kinship care has increased in the United States child welfare system, it is not yet used with the same urgency, and at the scale necessary to meet the needs of children and their families. 24 While New York has made strides, there is still much to do. In 2020, the New York State Office of Children and Family Services (OCFS), the state agency having oversight over the local departments of social services, established the requirement of kin-first firewall practice to be implemented both at the time of removal and again if

children are moved while in state custody. The intent is to “make kinship placements the presumptive placement for children, thereby expanding family-based care...” 25 This practice must include multiple exhaustive reviews in the location and engagement of all possible kin, as expansively defined: • An adult who is related to the parent(s) or stepparent(s) of a child through blood, marriage, or adoption to any degree of kinship. • An adult with a positive relationship to the child or child’s family including but not limited to a child's godparent, neighbor, family friend. • An unrelated person where placement with such person allows half siblings to remain together in an approved foster home, and the parents or stepparents of one of the halfsiblings is a relative of such person. 26 Chapter 384 of the Laws of 2017 (KinGAP Expansion) amended New York State Social ______________ 15 Id.; N.Y. Fam. Ct. Act §1017(2)(a)(iii) 19 In New York, Article 17 of the Surrogate’s Court Procedure Act is the law that controls Surrogate Court guardianship appointments involving children; see also, N.Y. Family Court Act Article 6. 20 N.Y. General Obligations Law §5-1551 21 OCFS-4940.docx; justiceforchildren/PDF/incarceratedparents/2019%20 English-Incarcerated%20Parent%20Flyer.pdf 22 The Annie E. Casey Foundation. Keeping Kids in Families: Trends in U.S. Foster Care Placement . Baltimore: The Annie E. Casey Foundation, 2019. https://assets.aecf. org/m/resourcedoc/aecf-keepingkidsinfamilies-2019. pdf, accessed August 10, 2022. 23 American Bar Association Center on Children and the Law. New Opportunities for Kinship Families: Action Steps to Implement the Family First Prevention Services Act in Your Community , dam/aba/administrative/child_law/new-opportunities- kinship-families.pdf, accessed August 11, 2022. 24 Johnson, Disrupt Disparities, supra note 5. 25 New York State Office of Children and Family Services, Administrative Directive, Kin-First Firewall Practice , 20-OCFS-ADM-18, October 14, 2020, https://cdn. family_defense_resources/20-OCFS-ADM-18__2_.pdf, accessed August 10, 2022. 26 Id. 16 N.Y. Fam. Ct. Act §1012(m) 17 N.Y. Fam. Ct. Act §1012(n) 18 N.Y. Family Court Act Article 6

13 N.Y. Fam. Ct. Act §1017(1)(a) 14 N.Y. Fam. Ct. Act §1055(a)(i)

32 | FIJ Quarterly | Fall 2022

FIJ Quarterly | Fall 2022 | 33

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