Some Formerly in Foster Care May Now Return to the System

Article 10-B Offers a Second Chance

Following the effective date of the amendments to the Family Court Act, children in foster care who have reached the age of majority will still be able to leave the system ' and in fact may only remain in it if they specifically consent to do so. What the new Article 10-B offers them is permission to return if things do not work out. First, however, they must be between the ages of 18 and 21. Second, they must not have been outside the foster care system for more than 24 months. Then, the “child” (or a local social services official) must move the court to return him or her to the system. He or she must also consent to enter a vocational or other educational training program, and to attend the classes that that program requires. Such return may be granted if there is a finding that the child has no reasonable alternative to foster care and that a return to the system would be in the child's best interest.

Avoiding Harsh Consequences

In what may be one of the last cases of its kind, a Clinton County family court in October denied a motion seeking a method to return a former foster child to New York's foster care system. Matter of Tashia “R,” NYLJ 1202473710543, at *1 (Fam., CL, Decided Oct. 18, 2010). The reason the court gave was that the child in question had aged out of the system at 18 years of age after failing to opt to remain a foster child; in fact, the court found, Tashia would have been incapable of knowingly, intelligently and voluntarily opting to remain in the system, because she is so mentally handicapped that such thought processes are beyond her grasp.

The court was not moved by the Clinton County Department of Social Services' Commissioner's attempt to circumvent this problem by appointing a guardian for Tashia for the purpose of consenting to her staying in foster care. That appointment had come too late ' five months after Tashia's 18th birthday. Stated the court, “Assuming, without finding, that a guardian can consent to an extension of foster care, to be effective consent, the appointment and consent were necessary at the time of Tashia's eighteenth birthday.” The court conceded, however, that this result might be different under the new law, stating that “at least until November 11, 2010, when new amendments to the Family Court Act ' 1055(e) take effect, once an individual leaves foster care after [his or her] eighteenth birthday, [he or she] can not elect to re-enter foster care.” Therefore, since Tashia left foster care on her 18th birthday, and the law on the date of the decision in her case did not permit re-entry into foster care for those over 18, the later appointment of a guardian to consent to her remaining in foster care could not help her.

Conclusion

Clearly, the subject of the Tashia “R” case is but one of many former foster-care children who might benefit from this year's legislative changes. Young adults who have aged out of the foster-care system only to find that they cannot “go it alone” may now get a second chance, and because they have to attend school in order to return to foster care they are more likely to succeed when they finally exit the system. Little wonder, then, that the bill that ushered in this change was passed unanimously by the New York State Assembly, and by the State Senate with only one dissenting vote.

Janice G. Inman is Editor-in-Chief of this newsletter.

Children in foster care in New York usually “age out” of the system when they turn 18 years old. Prior to their 18th birthdays, these minors are permitted by law to choose to remain in foster care until their 21st birthdays, allowing them extra time to grow up and, hopefully, become better educated and/or self-supporting before they leave the system. Historically, if a person in foster care failed to make such an election before his or her 18th birthday, there was no provision for second thoughts.

This worked a hardship on many children in foster care who, like their contemporaries in average families, might brashly have hurried to declare their independence as soon as possible, only to discover that it is not always easy being a young person alone in the world. But, whereas children in traditional families can often simply show up at Mom and Dad's door asking for their old rooms back, foster-care children had no such fall-back opportunities. The door was shut. And, as was stated in an Assembly memo explaining the need for changes to the legislation, for children who age out of the foster-care system too young, so-called “independent living” may end up being more like “falling off a precipice.”

As of Nov. 11 of this year, that cruel reality has been altered. Now, under certain circumstances, some children who have aged out of the foster care system may voluntarily re-enter it.

Article 10-B Offers a Second Chance

Following the effective date of the amendments to the Family Court Act, children in foster care who have reached the age of majority will still be able to leave the system ' and in fact may only remain in it if they specifically consent to do so. What the new Article 10-B offers them is permission to return if things do not work out. First, however, they must be between the ages of 18 and 21. Second, they must not have been outside the foster care system for more than 24 months. Then, the “child” (or a local social services official) must move the court to return him or her to the system. He or she must also consent to enter a vocational or other educational training program, and to attend the classes that that program requires. Such return may be granted if there is a finding that the child has no reasonable alternative to foster care and that a return to the system would be in the child's best interest.

Avoiding Harsh Consequences

In what may be one of the last cases of its kind, a Clinton County family court in October denied a motion seeking a method to return a former foster child to New York's foster care system. Matter of Tashia “R,” NYLJ 1202473710543, at *1 (Fam., CL, Decided Oct. 18, 2010). The reason the court gave was that the child in question had aged out of the system at 18 years of age after failing to opt to remain a foster child; in fact, the court found, Tashia would have been incapable of knowingly, intelligently and voluntarily opting to remain in the system, because she is so mentally handicapped that such thought processes are beyond her grasp.

The court was not moved by the Clinton County Department of Social Services' Commissioner's attempt to circumvent this problem by appointing a guardian for Tashia for the purpose of consenting to her staying in foster care. That appointment had come too late ' five months after Tashia's 18th birthday. Stated the court, “Assuming, without finding, that a guardian can consent to an extension of foster care, to be effective consent, the appointment and consent were necessary at the time of Tashia's eighteenth birthday.” The court conceded, however, that this result might be different under the new law, stating that “at least until November 11, 2010, when new amendments to the Family Court Act ' 1055(e) take effect, once an individual leaves foster care after [his or her] eighteenth birthday, [he or she] can not elect to re-enter foster care.” Therefore, since Tashia left foster care on her 18th birthday, and the law on the date of the decision in her case did not permit re-entry into foster care for those over 18, the later appointment of a guardian to consent to her remaining in foster care could not help her.

Conclusion

Clearly, the subject of the Tashia “R” case is but one of many former foster-care children who might benefit from this year's legislative changes. Young adults who have aged out of the foster-care system only to find that they cannot “go it alone” may now get a second chance, and because they have to attend school in order to return to foster care they are more likely to succeed when they finally exit the system. Little wonder, then, that the bill that ushered in this change was passed unanimously by the New York State Assembly, and by the State Senate with only one dissenting vote.

Janice G. Inman is Editor-in-Chief of this newsletter.