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Families sue for due process in NY foster care system

The complaint calls it discriminatory and harmful that New York uses old criminal convictions to make sweeping denials of grandparents, aunts and uncles applying to adopt or foster children. 

BROOKLYN (CN) — When he was just 3 months old, B.B. was removed from his mother’s care and released to his great-grandparents. They cared for the young child, who has autism and is nonverbal; helped him learn some sign language to communicate with his family; and once saved the boy’s life when he was a baby, bringing him to a hospital where he was diagnosed with chronic lung disease and asthma. 

Despite providing a loving home for the toddler, B.B.’s great grandparents weren’t approved last year for a state program to get financial support as foster parents. Regulators pointed back to 1995 when the child’s great-grandfather was convicted of attempted burglary in the second degree — one of the 300 felony charges that’s grounds for either lifetime or five-year mandatory disqualification under the state’s “kin caregiver” program. 

On Wednesday, the couple joined family members of 13 other minor children in a federal class action that describes being shut out of state services based on prior convictions — and sometimes criminal charges alone — regardless of when they took place or any rehabilitation since. 

Calling the state’s disqualification systems unconstitutional, discriminatory and harmful to kids, the families are represented in the Eastern District of New York by The Legal Aid Society and Dechert LLP. 

“The statute creates an irrebuttable presumption that Kin Caregivers with certain criminal history are unfit to be foster or adoptive parents to a related child, regardless of their relationship with that child or the suitability of their home,” the 74-page complaint states. 

Placing children in foster care with a stranger can have a host of negative consequences, Legal Aid says in its complaint. 

“Children who spend time in stranger foster care have poorer school performance and are more susceptible to homelessness, arrest, chemical dependency, and mental and physical illness than children who remain with their families,” the complaint notes.  

Conversely, children placed with family members have reduced trauma and higher rates of behavioral and emotional well-being, according to a New York City interagency report published in March 2018. They are also more likely to end up in a permanent household through either reunification, adoption or guardianship, and are less likely to reenter foster care. 

Foster parent certification allows families to get child care subsidies from the state, and foster children are automatically eligible for Medicaid and post-adoption services, like counseling and caregiver training. The plaintiffs want parts of the program ruled unconstitutional and for the state to put in place meaningful individualized applicant evaluations. 

“Children in the custody of [the Administration for Children's Services] deserve individualized assessments of the relatives who step forward to take care of them, not a bureaucratic response that ignores their relatives’ caretaking skills and track record,” Dechert attorney Linda Goldstein said. 

Before 2008, foster and adoptive parents were in fact entitled to those individual assessments, according to the complaint. Then, the state began automatically denying the applications of those who were convicted of certain felonies, which include criminal marijuana possession and possession of a weapon.

In addition to the mandatory disqualifications based on convictions, a discretionary system can block prospective parents based on past charges alone. The same is true if anyone in the household over 18 was ever the subject of an indicated report in the state’s child abuse registry. 

One plaintiff, Ms. K, was denied foster parent certification to care for her 10-month-old grandson based on a 20-year-old report involving domestic incident reports for verbal altercations. The Administration for Children's Services never got involved, and since then, Ms. K has raised three children and helped raise seven grandkids.

Another grandmother, Mrs. G, has been a certified foster parent for 30 years, caring for dozens of children and adopting three. She was denied certification to care for her 3-year-old granddaughter because of an incident five years ago, when a young child she was fostering hit another with a toy. 

To be indicated in the state registry is a low bar, requiring just “some credible evidence,” the complaint says. Black and Latino families are disproportionately represented in those systems, and as a result, more likely to be denied placement as kin caregivers.  

In addition, minorities have higher conviction and incarceration rates, and are more likely to come into contact with police, the complaint notes. It cites 2018 data in which 4,458 Black New Yorkers were convicted of felonies, compared with 902 white New Yorkers. More than half of those incarcerated in the state are Black, despite 16% representation in the total population. 

“These policies and practices perpetuate the racially discriminatory impact of the criminal legal system and the child welfare system, which disproportionately police and prosecute communities of color and disproportionately regulate families of color,” said Dawne Mitchell, attorney-in-charge of The Legal Aid Society’s juvenile rights practice, in a press release. “These policies deny children in foster care loving, safe, and stable familial foster homes, and we look forward to correcting this injustice in court very soon.” 

In response to an inquiry from Courthouse News, New York’s Office of Children and Family Services said it does not comment on pending litigation. 

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