Legal advocates for children in New York City have filed a federal lawsuit against the city and state alleging officials unjustly prohibit relatives from becoming foster parents due to prior criminal offenses and allegations of child abuse and neglect — even when they are decades old or never resulted in a conviction.
The class-action suit, filed Wednesday by The Legal Aid Society and Dechert LLP in eastern New York’s U.S. District Court, states that current practices deprive vulnerable children of the opportunity to live with family, widely considered the best placement for foster children’s well-being and long-term outcomes. Those who remain with relatives but are edged out of formal foster care are denied essential resources needed for their care, the suit alleges.
The impact falls most heavily on Black and Latino children, who are vastly overrepresented in New York City’s foster care system.
“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,” Dawne Mitchell, attorney-in-charge of the juvenile rights practice at The Legal Aid Society, said in a statement. “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.”
Officials with the state Office of Children and Family Services (OCFS) and the city Administration for Children’s Services (ACS) did not respond to The Imprint’s requests for comment on the lawsuit.
But ACS spokesperson Marisa Kaufman sent a statement describing the agency’s commitment to placing children with relatives and close family friends. “Kinship placement for children in foster care reduces trauma and improves reunification outcomes,” Kaufman wrote. She stated that in fiscal year 2021, the agency placed more than half of New York City foster children with kin, adding, “That’s a dramatic increase over the past five years and we are exploring new ways to further improve that essential work.”
The agency’s discretion is somewhat limited by federal and state law requiring it to conduct criminal record checks before anyone can become a foster parent, and to consider certain types of crimes as “mandatory disqualifications” if they appear on the record of any member of the household.
State law also gives child welfare agencies broad latitude to deny certification to foster parents if any household member has any type of criminal conviction or charge. The lawsuit alleges, however, that the Office of Children and Family Services has not provided the city agency with sufficient guidance on how to assess whether an individual caregiver’s history impacts their ability to safely parent a child. And New York’s determination of which crimes are automatic disqualifiers — nearly 300 — is “more expansive” than that of other states, it says.
In some cases, happy, well-loved children were removed from the homes of relatives with past offenses, and were sent instead to live with foster parents they did not know, or in group facilities.
“We’ve had clients describe to us how traumatic that moment is: breaking down in tears, feeling terrified of where they will go, and their family being desperate for them to stay in the family unit and keep that connection to their relatives,” said Kate Wood, staff attorney at The Legal Aid Society.
In other cases described in the lawsuit, the child welfare agency allowed children to remain with relatives, but denied the kinship caregivers access to the financial support available in certified foster placements. That left the families struggling to feed, clothe and house the children entrusted to them.
One Legal Aid client, who agreed to be identified by her middle name, Michelle, told The Imprint that ACS refused to certify her as foster parent for her 14-year-old granddaughter because she had convictions for loitering, prostitution and 3rd-degree assault, all before 1994. Michelle said she was told that if she wanted to keep the teen out of a group home, she would have to bear the costs for the girl’s food, clothing and therapy on her own.
She decided to do so, even though it meant they had to cut costs by moving to New Jersey, away from their family and friends in Brooklyn.
“It would’ve been another lost soul to the system,” Michelle said. “The child is the one being punished, she’s the one that’s really suffering.”
Attorney Wood said relatives are rarely provided a written explanation of the placement decision by the child welfare agency, let alone given an opportunity to appeal, and children may never receive them.
“It’s emotional and mentally very distressing to our clients, who don’t always understand why these decisions are being made,” she said.
The number of children in New York City foster care has plummeted since the 1990s, due to an increased emphasis on family preservation. Children’s Services has hired staff and training consultants to encourage kinship placements, and roughly half the children entering foster care in the most recent fiscal year were placed with a relative. That was nearly double the rate five years earlier, according to city data.
Current figures show roughly 2,600 children entered foster care in 2020, and approximately 7,100 remained there as of August.
“We do think both OCFS and ACS share a concern about enhancing opportunities for kin caregivers,” said Lisa Freeman, director of the special litigation unit within Legal Aid’s juvenile rights practice. “But we think there’s a real deficiency in the oversight and guidance of the process, so they are unaware of what is happening at the ground level often.”
The suit alleges that the city and state maintain “unconstitutional disqualification systems” that deprive the 14 named clients of due process rights under the U.S. Constitution’s 14th Amendment, including the right to “family association and integrity,” and “to be free from unnecessary intrusions into the child’s emotional well-being.” The litigants argue that children are better served when agencies approve foster parents based on their caregiving abilities and the safety of their home, rather than focusing on prior offenses that are unrelated or occurred years ago.
In one case described in the lawsuit, a 10-month-old was placed with his grandmother and uncle, who had previously cared for the child’s three half-siblings. However, the grandmother was denied the opportunity to become a foster parent and receive benefits to support the child because she had a 20-year-old report on the state’s child abuse registry. That report, according to the lawsuit, had not led to a court filing or referral to services.
Before their caregivers were deemed ineligible as foster parents, the children in the lawsuit were described by ACS as “happy” or doing “exceptionally well” in their relatives’ homes. They appeared to have adapted, with ties to kin and community easing the transition after separating from parents.
Four experts on child protection interviewed by The Imprint characterized the issues identified in the lawsuit as a problem nationwide, particularly given the widely known benefits of kinship care.
“I suspect there is wide variation in how different states and counties are willing to waive relatives’ criminal background, but I doubt New York City is alone in this practice,” said Josh Gupta-Kagan, a law professor at University of South Carolina School of Law. “A criminal background in a kinship caregiver might trigger further questions or investigations, but should not be an absolute bar to a kinship foster placement.”
One longtime advocate for kinship caregivers said thousands of New Yorkers he’s interviewed over 25 years have encountered “disparate and unreasonable” treatment from child protection workers, despite some legislative protections created over the past two decades.
“There’s a ‘preference’ for kin in the law, but it’s really discretionary to the courts, and they do a dance to whatever the county officials tell them,” said Gerard Wallace, who retired as head of a nonprofit supporting kin caregivers and currently serves as an advisor for the Child Welfare League of America and Prevent Child Abuse New York. “Families’ rights should trump states’ rights, but they don’t in too many of these cases.”