Legal Aid and Dechert File Class Action Lawsuit Against NYS, NYC for Practices that Deny Children Foster Placement with Relatives

The Legal Aid Society and Dechert LLP filed a class action lawsuit in the Eastern District of New York against Governor Hochul, the New York State Office of Children and Family Services (OCFS) and the New York City Administration for Children Services (ACS) challenging practices that deny children in foster care ready, willing and able family members as foster or adoptive parents. These practices rely on unduly sweeping and discriminatory factors to disqualify family members, harming children in foster care as a result.

It is well established that children who are removed from their parents and placed into foster care do much better if they are placed with family members compared to strangers. These “kinship placements” allow children in foster care to maintain connections to extended family and community and provide a sense of stability in the face of the immense trauma of familial disruption.  

Under current law, a potential kin foster or adoptive parent cannot be certified if they have previously been convicted of any one of nearly 300 mandatory excluding crimes, even if the crime took place decades earlier and even if city officials believe that person can provide a safe home.  

In addition, potential kin foster or adoptive parents may be barred from certification if:

• either the prospective kinship foster parent or any person over the age of 18 residing in the home has any criminal history; or
• either the prospective kinship foster parent or any person over the age of 18 residing in the home has any history of an “indicated” child abuse or neglect allegation with the Statewide Central Register of Child Abuse and Maltreatment (SCR).

The lawsuit alleges that children are denied safe and loving homes with family members due to government officials placing undue weight on SCR and criminal history, history that can be decades old and unrelated to the relatives ability to care for the child.  

Reliance on SCR history is particularly problematic. The SCR disproportionately affects poor people since they are most likely to come into contact with mandated reporters through their reliance on public housing and shelters.  SCR history is a deficient indicator of the safety of a family member’s home.  

In addition, children are not notified when their kin are denied certification, and have no opportunity to challenge the denial. When kin are denied certification, children wind up placed in the home of a stranger, into a congregate care facility, or into the same disqualified kin family's home, but denied the resources and services provided to certified foster or adoptive parents. 

The team at Dechert was led by litigation partner Linda Goldstein and included associates Samantha Rosa, Emily Van Tuyl and Vishan Patel.

"Children in the custody of ACS 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,” said Linda Goldstein.

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Dechert is a leading global law firm with 22 offices around the world. We advise on matters and transactions of the greatest complexity, bringing energy, creativity and efficient management of legal issues to deliver commercial and practical advice for clients.