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.

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Photo of William C. Silverman William C. Silverman

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer…

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer lawyers and ensuring widespread participation in these projects.

Bill has robust private and public sector experience and a strong criminal and civil background. He has worked extensively on government investigations and white collar criminal matters, as well as complex civil litigation in federal and state courts. He also served as an assistant U.S. attorney in the Southern District of New York, where he led criminal investigations, conducted trials and handled Second Circuit appeals.

Throughout his career, Bill has dedicated himself to the promotion of equal access to justice through pro bono service, particularly in the area of family court, anti-trafficking, and immigration.

Bill spearheaded a partnership among several law firms, corporations and the New York City Family Court to provide free legal advice to pro se litigants. The New York City Family Court Volunteer Attorney Program now has more than 400 volunteer attorneys from 40 major firms and corporations. Bill also helped build a coalition of organizations in a successful effort to secure additional Family Court judges in New York. He is now part of an effort spearheaded by Chief Judge Janet DiFiore to simplify the New York Court System from 11 trial courts to three.

Bill serves as counsel to the New York State Anti-Trafficking Coalition. In that capacity he has been a strong advocate for changes in the law and public policy to protect victims of human trafficking and bring perpetrators to justice. He also represents individual clients in this area, including a successful federal lawsuit brought on behalf of a trafficking victim against her traffickers. For his work, he was named by domestic violence nonprofit Sanctuary For Families as one of “New York’s New Abolitionists.”

Bill has spoken at numerous conferences and events, including New York Chief Judge Jonathan Lippman’s Hearings on Civil Legal Services and the American Bar Association’s Equal Justice Conference. In 2014, he attended a meeting at the White House with Vice President Joe Biden and other policymakers on the need for access to legal services in immigration proceedings.

Bill has been recognized for his public service with the Abely Pro Bono Leadership Award from Sanctuary For Families and Columbia Law School (2019); the Special Leadership Award for All-Around Excellence in Corporate Social Responsibility & the Law from City & State Reports (2015); the Commitment to Justice Award for Outstanding Partner from inMotion (2008); and the Matthew G. Leonard Award for Outstanding Pro Bono Achievement from MFY Legal Services (2007).

Outside of his work at the firm, Bill serves on various committees and non-profit boards. Bill is currently chairman of the Fund for Modern Courts, a non-partisan citizen organization devoted to improving New York State courts, and is formerly chairman of Legal Information For Families Today (LIFT), an organization devoted to unrepresented litigants in Family Court.