Relates to enacting the "safe landings for youth leaving foster care act" or "safe landings act", which provides protections for youth transitioning out of foster care who bring certain legal proceedings.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9321B
SPONSOR: Hevesi TITLE OF BILL:
An act to amend the family court act and the social services law, in
relation to enacting the "safe landings for youth leaving foster care
act" or "safe landings act"
PURPOSE:
The purpose of the Family Court Act is to help protect children and
youth from injury and mistreatment and to help safeguard their physical,
mental, and emotional well-being. In accordance with that purpose, this
bill seeks to amend multiple provisions of both the Family Court Act and
the Social Services Law to grant the Family Court the authority to adju-
dicate motions made by certain former foster care youth to enforce Fami-
ly Court orders that had been made in the best interest of those youth
and young adults when they still were in foster care. Youth could bring
such motions until they turn twenty-two (22), or after the youth turns
twenty-two (22) upon a showing of good cause.
Pursuant to its statutory responsibility,-the Family Court issues orders
on behalf of youth between the ages of eighteen and twenty-one who are
in foster care to assist them in successfully transitioning to living
independently. However, after a youth leaves foster care, the Family
Court Act as currently interpreted does not allow the Family Court to
enforce orders that were valid when made, on the premise that the Family
Court loses jurisdiction once a youth turns twenty-one. A prime, but not
exclusive, example is the First Department's recent decision in Matter
of Donique T., 193 A.D.3d 490 (1st Dept. 2021), which held that the
Family Court lacked jurisdiction to enforce orders requiring the commis-
sioner of social services and contracting agencies to assist the youth
to obtain housing where those orders had not yet been executed by his
twenty-first birthday.
The proposed amendment would ensure that the Family Court maintains
jurisdiction to direct the commissioner of social services and contract-
ing agencies to obey orders existing at the time a youth departs from
foster care but that have not yet been executed, including orders to
meaningfully assist youth in securing stable housing, thus preventing
homelessness. The bill also serves to ensure that the Family Court's
intent in .issuing such orders is not thwarted by the failure of the
commissioner of social services and contracting agencies to execute them
in a timely fashion prior to a youth's twenty-first birthday.
SUMMARY OF PROVISIONS:
The Act amends the following statutes to achieve its purpose:
Section One establishes the title of the act, to be known as the "safe
landings for youth leaving foster care act" or the "safe landings act".
Section Two amends FCA Section 249, relating to the appointment of coun-
sel, adding subdivision (c) which provides that in proceedings pursuant
to FCA sections 355.5(11),756-a(j),1015-a,1088(d)(i),1088(d)(ii), ' and
1089(d)(2)(viii)(C-1), or SSL section 358-a(2-a)(c), the Family Court
shall appoint counsel for youth who were formerly in foster care and
seek to enforce an order that was made on their behalf while in foster
care and before their twenty-first birthday.
Section Three amends FCA Section 255, relating to cooperation of offi-
cialsand organizations, by designating the existing provision of said
statute as subdivision (a) and adding subdivision (b), providing that
orders directing a social services district and/or a social services
official as defined in SSL Section 2, and/or an authorized agency, as
defined by SSL Section 371(10), to perform an action for the purposes of
assisting a youth who had been placed in foster care, shall be enforcea-
ble after such youth is discharged from foster care pursuant to FCA
section 1088(d).
Section Four amends FCA Section 355.5 by adding subdivision (11) which
provides that where placement will end prior to-a subsequent permanency
hearing due to the youth reaching age 21 and/or failing to consent to
continuation of placement, court orders made pursuant to this section
shall be enforceable against the social services district and/or the
social services official as defined in SSL Section 2, and/or the author-
ized agency, as defined by SSL Section 371(10).
The amendment further provides in paragraph (a) of subdivision (11) that
the Family Court shall maintain jurisdiction Over a case for the purpose
of hearing a motion for contempt pursuant to Judiciary Law section 753
and FCA section 115 against the commissioner of social services and/or
authorized agency with whom the respondent was placed. Such a motion may
be brought by a youth formerly placed with the commissioner of social
services or the office of children and family services pursuant to FCA
Section 353.3 and who resided in a foster care setting or non-secure
facility. Additionally, the amendment provides for an affirmative
defense to a motion filed under this subdivision when compliance with
such court order was not possible due solely to the youth's refusal to
consent to continuation of foster care placement where such refusal was
appropriately documented after consultation with the youth's attorney
for the child.
The amendment additionally provides in paragraph (b) of subdivision (11)
that jurisdiction for the commencement of such a motion for contempt
shall continue until the youth turns twenty-two (22), and beyond the
22nd birthday for good cause, including, but not limited to, failure to
obtain stable housing. The court's jurisdiction would continue until
pending motion(s) and any related appeals are resolved. Stable housing,
for the purposes of this section, shall mean housing where the youth can
reasonably expect to reside for at least twelve (12) months and shall
not include homeless shelter, temporary accommodations with family or
friends, a single-room occupancy hotel, any other congregate living
arrangement which houses more than ten (10) unrelated persons, or ongo-
ing, placement in foster care after the youth's twenty-first birthday
according to a local district policy or practice, among other things.
However, discharge into a congregate living arrangement licensed by the
Office of Mental Health or the Office for People with Developmental
Disabilities in accordance with the youth's permanency or discharge
plan, to receive residential services for at least twelve months,
including a congregate living arrangement which houses more than ten
unrelated persons, shall constitute stable housing.
Section Five amends FCA Section 756-a by adding a new subdivision (j)
which provides that where placement will end prior to a subsequent
permanency hearing due to the youth reaching the age of 21 and/or
declining to consent to continuation of placement, court orders made
pursuant to that section shall be enforceable against the social
services district and/or the social services official as defined in SSL
Sections 2, and/or an authorized agency, as defined by SSL Section
371(10).
The amendment further provides under paragraph (i) of subdivision (j)
that the Court shall maintain jurisdiction over a case for purposes of
hearing a motion for contempt against a social services district and/or
a social services official as defined in SSL Section 2, and/or an
authorized foster care agency, as defined by SSL Section 371110), pursu-
ant to Judiciary Law section 753 and FCA 115. Such a motion may be
brought by a youth who was formerly placed pursuant to FCA Sections 756
or 756-a. Additionally, the amendment provides for an affirmative
defense to a motion filed under this subdivision when compliance with
such court order was not possible due solely to the youth's refusal to
consent to continuation of foster care placement where such refusal was
appropriately documented after consultation with the youth's attorney
for the child.
The amendment additionally authorizes the. Family Court in paragraph
(ii) of subdivision (j) to adjudicate a motion filed before the respond-
ent turns twenty-two (22), or after the respondent turns twenty-two (22)
for good cause, which shall include, but not be limited to, failure to
obtain stable housing. The court's jurisdiction would continue until all
pending motion(s) and any related appeals are resolved. Stable housing,
for the purposes of this section, shall mean housing where the youth can
reasonably expect to reside for at least twelve (12) months, and shall
not include: homeless shelter, temporary accommodations with family or
'friends, a single-room occupancy hotel, any other congregate living
arrangement which houses more than ten (10) unrelated persons, or ongo-
ing placement in foster care after the youth's twenty-first birthday
according to a local district policy or practice, among other things.
However, discharge into a congregate living arrangement licensed by the
Office of Mental Health or the Office for People with Developmental
Disabilities in accordance with the youth's permanency or discharge
plan, to receive residential services for at least twelve months,
including a congregate living arrangement which houses more than ten
unrelated persons, shall constitute stable housing.
Section Six amends FCA Section 1015-a, relating to court ordered
services, to provide that an order directing such services for a youth
placed in foster care shall be enforceable after the child is discharged
from foster care pursuant to FCA Section 1088(d).
Section Seven amends FCA Section 1088 by adding subdivision (d). Para-
graph (i) of subdivision (d) provides that the Court shall maintain
jurisdiction over a case for purposes of hearing a motion for contempt
pursuant to Judiciary Law section 753 and FCA Section 115 against a
social services district and/or a social services official as defined in
SSL Section 2, and/or an authorized foster care agenty, as defined by
SSL Section 371(10), brought by a youth on whose behalf a valid but as
yet unexecuted order was made against a social services district or
official and/or an authorized agency, where such youth has been
discharged from foster care due to either: 1) the youth's failure to
consent to continuation of placement to the custody of the local commis-
sioner of social services or other officer, board or department author-
ized to receive children as public charges; or 2) the youth reaching the
age of twenty-one. Additionally, the amendment provides for an affirma-
tive defense to a motion filed under this subdivision when compliance
with such court order was not possible due solely to the youth's refusal
to consent to continuation of foster care placement where such refusal
was appropriately documented after consultation with the youth's attor-
ney for the child.
Paragraph (ii) of subdivision (d) provides that the Family Court shall
have jurisdiction to adjudicate such a motion filed before the former
foster care youth turns twenty-two (22), or after the youth turns twen-
ty-two (22) for good cause shown. Good cause may be established by,
among other things, a failure to obtain stable housing. The court's
jurisdiction would continue until pending motion(s) and any related
appeals are resolved: Stable housing, for the purposes of this section,
shall mean housing where the youth shall be reasonably expected to be
for at least twelve (12) months.1 Homeless shelter, temporary accommo-
dations with family or friends, a single-room occupancy hotel, any other
congregate living arrangement which houses more than ten (10) unrelated
persons, or ongoing placement in foster care' after a youth's twenty-
first birthday according. To local district policy or practice, among
other things, shall not be deemed stable housing. However, discharge
into a congregate living arrangement licensed by the Office of Mental
Health or the Office for People with Developmental Disabilities in
accordance with the youth's permanency or discharge plan, to receive
residential services for at least twelve months, including a congregate
living arrangement which houses more than ten unrelated persons, shall
constitute stable housing.
Section Eight amends FCA Section 1089 as to permanency hearings, by
adding sub-subparagraph (d) (2) (viii) (C-1) to subdivision (d), provid-
ing that where placement will be ending prior to another permanency
hearing due to the subject child turning twenty-one (21)years old,
and/or failure to consent to continuation of placement, the Court may
include orders against a social services district and/or a social
services official as defined in SSL Section 2, and/or an authorized
agency, as defined by SSL Section 371(10), for provision of assistance
or services to the subject child and shall be enforceable after
discharge from foster care pursuant to Family Court Act Section 1088(d).
Section Nine amends FCA Section 1090 as to representation of parties.
This section provides that if an attorney for the child has been
appointed by the family court in a proceeding pursuant to this article
or section three hundred fifty-eight-a, three hundred eighty-three-c,
three hundred eighty-four, or three hundred eighty-four-b of the social
services laws, or article ten, ten-B or ten-C of this act, the appoint-
ment of the attorney for the child shall continue without further court
order or appointment, unless another appointment of an attorney for the
child has been made by the court, until the child is discharged from
placement and all orders regarding supervision, protection or services
have expired. The attorney for the child shall also represent the child
without further order or appointment in any proceeding under article
ten-B or ten-C of this act. The attorney for the child shall also repre-
sent the child without further order or appointment in any proceeding
brought by a youth who was formerly in foster care to enforce orders
that were made prior to discharge from care when the child was between
the ages of eighteen and twenty-one. All notices, reports and motions
required by law shall be provided to such attorney. The attorney for the
child may be relieved of their representation upon application to the
court for termination of the appointment. Upon approval of the applica-
tion, the court shall immediately appoint another attorney to whom all
notices, reports, and motions required by law shall be provided.
Section Ten amends subdivision (2-a) of SSL Section 358-a by adding
paragraph (c). Subparagraph (i) of paragraph (c) provides that the Court
shall also maintain jurisdiction over a case for purposes of hearing a
motion for contempt pursuant to Judiciary Law Section 753 and FCA
Section 115 against the social services district and/or social services
official as defined in SSL Section 2, and/or an authorized agency„ as
defined by SSL Section 371(10), brought by a youth who was formerly in
foster care and was discharged from foster care due to either: 1) the
youth's failure to consent to continuation of placement in the custody
of the local commissioner of social services or other officer, board or
department authorized to receive children as public charges; or 2)
reaching the age of twenty-one (21). Additionally, the amendment
provides for an affirmative defense to a motion filed under this subdi-
vision when compliance with such court order was not possible due solely
to the youth's refusal to consent to continuation of foster care place-
ment where such refusal was appropriately documented after consultation
with the youth's attorney for the child.
Subparagraph (ii) of paragraph (c) provides that the Family' Court shall
have jurisdiction to adjudicate such a motion filed before the former
foster care youth turns twenty-two (22), or after the youth turns twen-
ty-two (22) upon a showing of good cause, which includes, but is not
limited to, failure to obtain stable housing The court's jurisdiction
would continue until pending motion(s) and any related appeals are
resolved. Stable housing, for the purposes of this section, shall mean
housing where the youth shall be reasonably expected to be for.at least
twelve months, and shall not include homeless shelter, temporary accom-
modations with family or friends, a single-room occupancy hotel, any
other congregate living arrangement which houses more than ten unrelated
persons, or ongoing placement in foster care after the youth's twenty-
first birthday according to a local district policy or practice, among
other things. However, discharge into a congregate living arrangement
licensed by the Office of Mental Health or the Office for People with
Developmental Disabilities in accordance with the youth's permanency or
discharge plan, to receive residential services for at least twelve
months, including a congregate living arrangement which houses more than
ten unrelated persons, shall constitute stable housing.
Section Eleven establishes the effective date.
EXISTING LAW:
Under existing law, there is no provision for enforcing.valid orders
that were made on behalf of youth in foster care once they (i) turn
twenty-one or (ii) are discharged from care before turning twenty-one
but before achieving permanency.2 Thus, where orders made prior to a
young person being discharged from foster care or turning twenty-one
remain unfulfilled at the time the youth leaves care, there is currently
no means by which the Family Court can compel a social services district
and/or social services official as defined in SSL Section 2, and/or an
authorized agency as defined by Social Services Law Section 371(10), to
comply with court-ordered obligations.
The lack of a mechanism for enforcing orders has the adverse effect of
barring recourse for a youth when the responsible person or agency fails
to satisfy orders made on their behalf towards achieving successful,
independent adulthood, including orders related to obtaining stable
housing and other supports for independent living. This is the case
even for youth who have consented to remain in care until age twenty-one
where the agency merely "runs out the clock" without having complied
with existing valid Family Court orders. Similarly, there is no mech-
anism for enforcement of orders issued on behalf of youth placed in
foster care pursuant to FCA Articles 3 or 7, who are then discharged
from care before existing, valid orders have been executed.
JUSTIFICATION:
In 2021, the Family Court Act was amended to allow youth discharged from
foster care to choose to re-enter care. See FCA Section 1091; see also
Chapter 798 of the Laws of 2021.3 This proposed legislation seeks to
expand that safety net by ensuring that youth who leave care, either
because they "age out" at twenty-one or, having been discharged from
foster care between the ages of eighteen and twenty-one, are provided
with maximum support and all resources necessary to allow them to live
successful independent lives.4
While the 2021 legislation provided a safety net for youth discharged
due to declining to consent to remain in care after turning 18 by estab-
lishing a process through which a the Family Court may issue an order
returning them to foster care in specific circumstances, this bill goes
further by providing the court with the additional authority to enforce
existing orders already rendered on behalf of youth who were about to
either "age out" or be discharged from foster care before age 21. This
bill is necessary to ensure that agencies comply with orders intended to
help youth transition to adulthood, and that agencies do not evade their
obligations to ensure that youth have adequate housing and other
supports in place. In addition, this bill recognizes that some youth
discharged from care before turning twenty-one may not be able to return
to care or may not wish to do so, yet still could benefit from orders
made on their behalf for housing and other supports that the agency
failed to fulfill before discharge.
Affected youth typically need assistance with enforcement of orders for
assistance in applying for and being placed and maintained on waiting
lists for stable housing (e.g., in New York City, such applications are
made to NYCHA and/or supportive housing); receiving public benefits such
as transitional Medicaid; obtaining driver education instruction,
permits, and a driver's license; and for youth still in college, assist-
ance with financial aid applications, dormitory rooms, and other school
expenses such as books.5 Youth leaving foster care (whether due to aging
out at• age twenty-one Or being discharged from foster care between the
ages of eighteen and twenty-one) without stable housing and other
supports that had been ordered prior to their departure means they are
deprived of the safety net that foster care is intended to provide in
lieu of family. The societal consequences of preventing youth who have
experienced foster care from the possibility of seeking enforcement of
validly made orders the Family Court issued to ensure them adequate
housing and other services upon their. transition to independent living
can be severe and costly to both the individual youth and society. Youth
who leave foster care without adequate support in place are far more
likely to become homeless, have physical and mental health problems,
encounter legal problems, and find it difficult to obtain and retain
employment.6 Extending the Family Court's jurisdiction will ensure that
agencies actually timely fulfill court orders. Allowing former foster
care youth to come to the Family Court to enforce orders made on their
behalf but not carried out by the agencies will minimize or avert nega-
tive outcomes that may result from leaving these youth without the
assistance the unfulfilled orders were intended to assure.
New York State has obligations to children who have been taken from
their homes and families and placed in foster care. Homelessness is
already a devastating and enormous societal problem. Youth who are leav-
ing the foster care system with still-unexecuted orders aimed at helping
them make a successful transition are entitled to the services that the
Family Court determined to be necessary for them. Such youth likewise
must be able to call upon the Family Court to enforce orders that were
made on their behalf that were not satisfied. The agencies overseeing
the foster care and well-being of these youth should not be absolved of
the duty to comply with these orders simply because the youth has been
discharged from or aged out of care.' The age of the individual for
whose benefit a valid order was made should not be an insuperable barri-
er to the enforcement of that order. BOth as a matter of fundamental
fairness and to further public, policies aimed at preventing homeless-
ness and, this must be changed.8
LEGISLATIVE HISTORY:
This is a new bill.
FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
Takes effect immediately.
(1) See 18 NYCCR 430.12 (f)(3)(1)(c): "No child may be discharged to
another planned living arrangement with a permanency resource, unless
the child has a residence other than a shelter for adults, shelter for
families, single-room occupancy hotel or any other congregate living
arrangement which houses more than 10 unrelated persons and there is a
reasonable expectation that the residence will remain available to the
child for at least the first 12 months after discharge."
(2) This is so even when the child remains under agency care after turn-
ing twenty- - one under local policy. For example, in New York City, the
Administration for Children's Services (ACS) has developed the Continua-
tion of Care & Support Beyond Age 21 (CCS21+) policy (formerly known as
ETP, or Exception to Policy), a discretionary administrative policy that
enables, an agency to continue providing services for youth formerly in
care and under court supervision. In developing CCS21+, ACS recognized
that housing and other services vital to living independently are not
always achieved by age twenty-one and that youth may require continued
assistance and oversight. While CCS21+ is an option for continuing care
and support beyond age twenty-one, it is a discretionary policy. More-
over, it does not confer jurisdiction on the court to enforce orders
made before the youth turned twenty-one.
(3) FCA Section 1091 was enacted in 2010 to permit re-entry into foster
care for placements under Article Ten. See Ch. 342 of the Laws of 2010.
Chapter 798 of the Laws of 2021 was subsequently enacted to clarify that
this relief was available to youth who had been in all types of foster
care placements, rather than only those under Article Ten, and to expand
FCA section 1091 to permit reentry for youth discharged from care after
age sixteen who, after age eighteen, found themselves at risk of home-
lessness. This expansion shows the intent of the Legislature to extend
protection to vulnerable populations beyond age eighteen and its recog-
nition of the particular need for their protection from homelessness.
The instant bill also seeks to protect youth from homelessness and other
disadvantages by creating a mechanism to enforce valid orders made while
the youth are still in foster care. This bill recognizes that not all
youth are eligible to return to care or wish to do so - yet both groups
need the relief that this amendment would provide. Further, in addition
to providing an additional mechanism for achieving the legislative
objective of protecting these vulnerable youth, it would cost less money
than the alternative societal costs of increased homelessness.
(4) Indeed, this bill is consistent with the reasonably prudent parent
standard in that a reasonably prudent parent would have made sure that
court orders were fulfilled. See 18 NYCRR 441.25.
(5) In one example, prior to a youth who had been in care for a number
of years turning twenty-one, the Family Court issued orders directing
the agency to ensure that he maintained his priority status for public
housing, and to assist him in obtaining a driver's license. The agency
failed to do so, and he lost his priority status a few months after
turning twenty-one, and did not have stable housing. Through his attor-
ney, the youth brought a contempt action against the agency and the
commissioner of social services for failing to preserve his housing
priority with the public housing agency, and for failing to assist him
in obtaining his driver's license. The court dismissed the action, find-
ing that since the young person had turned twenty-one, it no longer had
jurisdiction to make a contempt. finding. The decision was upheld on
appeal based on lack of jurisdiction.
(6) "The study conducted by researchers at the University of Chicago,
found that yoUth who aged out of foster care were nearly four times as
likely to experience homelessness as youth who never entered the
system....A study by the journal JAMA Pediatrics found that 40% of youth
who "aged out" of the foster care system experienced drug or alcohol
abuse." "Youths aging out of foster care are at high risk for becoming
homeless during the transition to adulthood. Between 31% and 46% of our
study participants had beenhomelessatleastonce,byage26years."
https://www.ncbi.nlm.nih.aov/pmc/articles/PMC3969135/ . "Former foster
care youth are half as likely to pay a mortgage or rent compared to
their peers. Studies show a correlation between a history of foster care
'and homelessness as well as the impact of emancipation from state care
on young adults. More than one-fifth of foster care youth experience
homelessness for at least one day within a year of emancipation...Former
foster care youth may have limited work histories and on-the-job train-
ing opportunities. Many lack the skills required to hold a steady job,
or the incentive and academic preparation to attend a college or train-
ing program. Youth who do obtain employment may find only jobs with
lower paying wages, which makes them vulnerable to poverty, and the
inability to establish complete independence." https://youth.gov/youth-
briefs/foster-care-youth-brief/challenges
(7) In another example, the foster care agency initially found support-
ive housing for a youth in care about six months before he turned twen-
ty-one, but due to a pending criminal case (which was ultimately
dismissed after he turned twenty-one), he was precluded from moving into
the apartment until that case resolved. The youth ultimately lost this
housing because the criminal case took much longer to resolve due to the
pandemic. Since then, the agency has been dilatory in finding him hous-
ing -yet the Family Court can no longer enforce orders to assist him now
that he is twenty-one.
(8) Interestingly, the legislature recently expanded the Family Court's
jurisdiction by extending assistance to youths past age twenty-one to
ensure that they receive special education services. Chapter 223 of the
Laws of 2022, which took effect on June 13, 2022 and will expire and be
deemed repealed on June 30, 2024, states that "(n)otwithstanding any
provision of law, rule or regulation to the contrary; a school district
may provide educational services in the 2022-23 and 2023-24 school years
to a student who turned twenty-one years old during the 2021-22 school
year and was enrolled in the school district and receiving special
education services pursuant to an individualized education plan. Such
student may Continue to receive such educational services until the
student completes the services pursuant to the individualized education
plan or turns twenty-three years of age, whichever is sooner." The
legislative memo for the above states: "This will help ensure that those
students who did not receive the services provided for in their IEP,
including transition services, due to the impacts during COVID-19
receive these services."
