Last week, Proskauer filed an Article 78 petition on behalf of The Legal Aid Society, Lawyers For Children, and the Legal Aid Bureau of Buffalo — three organizations that represent children in foster care proceedings — against the New York State Office of Children and Family Services (OCFS) over its regulations establishing a Host Homes program.  The petition charges that the program unlawfully creates a shadow foster care system that strips away core protections for children and parents under current law.

New York State has long had a statutory framework with comprehensive procedural safeguards for children and families when parents or guardians feel unable to care for their own children.  At issue here are regulations promulgated by OCFS that create, without statutory authority, a parallel, extrajudicial system of voluntary placement of children into “Host Homes” without mandated safeguards.  Indeed, under this program, children separated from their families — who otherwise would be represented by petitioners or comparable organizations — would have no means to express themselves or any legal recourse whatsoever.  As a result, children and families will suffer avoidable separation and trauma.

This past December, in announcing the adoption of the regulations at issue here, OCFS touted a “bold, new initiative” that it claimed “will support families without involving the child welfare system.”  But instead, the regulations establish a shadow foster care system and detail the requirements necessary for agencies to be authorized by OCFS to place children in “Host Homes.” The regulations also explain how those homes are selected and the duties and responsibilities of both the agencies and the Host Homes, including the treatment of children, record keeping, and the procedures and consequences for revocation of a Host Home.  This shadow system, which is overseen by OCFS, includes monthly contacts by the agencies to check on the children.

Despite the great similarity to foster care, the Host Homes program lacks the core protections for children and parents under the current statutory framework governing voluntary placement.  These protections hold OCFS and authorized private agencies accountable for the decision to take a child into placement, the care/treatment of the child while in placement, and the services provided to help the family reunify as quickly as possible.  But unlike existing law, the Host Homes program does not require the agency to provide supportive or preventive services to parents to avert placing children out of their homes or otherwise make efforts to reunify families.  There is no requirement that the agency first attempt to place children with kin before placing them with strangers.  There is no required court approval or court oversight of the placement and no appointment of counsel.  As a result, it is possible that children will languish in their Host Homes placement indefinitely.  Children even may be sent to live out of state without any of the vetting or oversight of the child’s placement that is required by the Interstate Compact on the Placement of Children when a child in foster care is placed outside of New York.

Moreover, using the Designation of a Person in Parental Relation under Title 15-A of the General Obligations Law as the mechanism for parents to transfer authority for the care of their children to strangers under the oversight of an authorized agency is a gross misapplication of the law as it was created and intended to be used by the Legislature.

Here, OCFS has acted without legislative authority or guidance; it wrote on a “clean slate” and substituted its own policy judgments for that of the Legislature; and the regulations are out of harmony and indeed in conflict with an existing statutory scheme.  Accordingly, the petition seeks an order annulling the Host Homes regulations in their entirety as an abuse of discretion, as unlawful, and as arbitrary and capricious.

I am proud to lead the Proskauer team which includes associates Michael Guggenheim and Dixie Morrison as well as senior paralegal Anna Brodskaya.