Perspectives on Foster Care Legislation
An Overview of Recent Legislation Affecting Foster Care In New York State*
By Joi Kohlhagen**

It is often said that children are our society's most precious resource. Karl Menninger captured the importance of investing in our younger generation when he said, "What is done to children, they will do to society."

One of the most fundamental and proactive ways to protect and help children have a safe, secure, stable, and supportive environment is to set forth legislation aimed at fulfilling that objective.

Legislation that addresses issues of children in foster care is particularly important. Most children in foster care are there because of circumstances that have caused them tremendous harm and great pain. This often traumatic life experience follows them as they make their way through the foster care system, which often has them going from one foster or group home to another, and then another again. Many of these children have to wait in frustration as family court proceedings drag on for months, or in some cases, years. They live without consistency in the context of an uncertain future. Foster care provides them with food, clothing, and shelter, but for many children in foster care, the basic needs for love, affection, and attention go unfulfilled.

Legislatures across the country have a vital responsibility to set forth laws that are aimed at protecting and assisting foster children, giving them the opportunity for happiness and allowing them to have a "childhood," instead of the early adulthood that often, by necessity, is thrust upon them as they try to protect themselves while attempting to discern their stressful and confusing circumstances.

Legislation is just one piece of a very large effort across the country to find solutions. The legislative process and results are often gradual given the complex issues that surround foster care.

The following legislation passed the New York State Assembly, Senate or both Houses during 2003. The scope of each of these Bills goes beyond issues specifically relating to foster care. Given the specific nature of this article, discussion is limited to aspects of legislation that involve foster care.

Assembly Bill 4611/Senate Bill 1015:
This Bill amends the Abandoned Infant Protection Act. It specifically clarifies the term "abandoned infant" in the Family Court Act. Previously, social service agencies lacked concrete legislative guidance for abandoned new born babies. Sadly, many newborn infants are left in garbage cans, dumpsters, and sometimes, near an entrance to a hospital or police station. Newborns often languish in foster care, unable to be adopted for months, or in many cases, years.

The new legislation defines "abandoned infant" as a child, not more than five days old, that has been left by a parent in a manner which indicates intent to surrender and relinquish all responsibility for the care of the child. The legislation defines the protocol when social services learns of an abandoned infant and authorizes the court to appoint a law guardian for the infant. If the infant is deemed "abandoned" the baby becomes eligible to be legally and permanently adopted anytime after 60 days subsequent to the determination of abandonment. During the 60 days before a determination is made, the infant's biological parents are permitted to initiate custody proceedings.

This legislation allows babies to have the opportunity to find a permanent home, in lieu of being passed around the foster care system for years. It allows biological parents a reasonable period of time to initiate attempts to regain custody after abandoning an infant. Where parents do not come forward to gain custody, or where a parent or parents have been deemed unfit, it is often in a child's best interest to have the structure and stability of a permanent home.

Assembly Bill 7231 and Senate Bill 5242:
This Legislation shortens the amount of time some children will spend in foster care while waiting to be permanently placed or adopted. It removes obsolete language regarding the time-frames when permanency hearings must be held. Previously, if there was a need for subsequent permanency hearings, those hearings were held at 12 month intervals: after the first 12 months a child was placed in foster care and again at each 12 month interval thereafter. The new law significantly reduces the interval period to 6 months. Consistent with previously existing law, a foster child that has been "freed for adoption" is entitled to a hearing aimed at safe permanent placement.

Assembly Bill 1182 (No Senate Companion)
This Bill requires the Office of Children and Family Services to implement a fair hearing process to any person whose application to become an adoptive parent has been accepted, but the request to adopt a specific child-for example, a foster child, has been denied. This law standardizes a process by which such applicant adoptive parents can further attempt to adopt a specific child, in many cases a foster child that is currently residing or previously resided in the applicant's home.

Assembly Bill 8302-A/Senate Bill 4224
This legislation requires the social service office holding jurisdiction over a child that has been placed in foster care to conduct an immediate investigation to locate relatives of the child, including all grandparents. This requirement allows a removed child's relative to apply to be the child's foster parent. The law thus enables a child to possibly live with a relative, rather than in the home of a stranger or a group home. In cases where a placement with a relative would be in the best interests of the child, this legislation increases the likelihood that a fit relative will be found.

This legislation is particularly significant for grandparents that have provided a home to a grandchild or grandchildren for many years, but lacked legal avenues to pursue legally recognized temporary or permanent custody where a parent is deceased, incarcerated, or in other significantly compelling circumstances.

Assembly Bill 1516 (No Senate Companion)
Most children are placed in foster care because of evidence and/or credible allegations that they were abused.

The purpose of this Bill is to further protect children from child abuse by expanding the list of mandated reporters of child abuse to include members of the clergy in addition to the previously existing list of mandated reporters: any physician; registered physician assistant; surgeon; medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist; chiropractor; podiatrist; resident; intern; psychologist; registered nurse; emergency medical technician; hospital personnel engaged in the admission, examination; care or treatment of personnel engaged in the admission, examination, care or treatment of persons; a Christian Science practitioner; school official; social services worker; day care center worker; provider of family or group family care; employee or volunteer in a residential care facility or other child care or foster care worker; mental health professional; substances abuse counselor; alcoholism counselor; peace officer; police officer; district attorney or assistant district attorney; investigator employed in the office of a district attorney; or other law enforcement official.

While the legislation adds members of clergy to the list of mandated reporters, there is an exception for allegations learned through confidential communications to clergy that are privileged-unless the person confessing or confiding waives that privilege. However, the legislation requires a clergy member to report information obtained through a non-confidential communication and must meet any legal requirements to prevent further abuse.

This legislation also provides immunity from liability to mandated reporters that make good faith reports of suspected child abuse. However, the legislation sets forth criminal accountability for mandated reporters who do not report. Any mandated reporter who willfully fails to report suspected child abuse shall be guilty of a class A misdemeanor.

This legislation also specifically defines the term "abused child" as meaning a child under the age of eighteen years upon whom a person eighteen years of age or more who is legally recognized to be the child's parent or other person legally responsible for such child's care and who:

(i) intentionally or recklessly inflicts physical injury, serious physical injury or death, or
(ii) intentionally or recklessly engages in conduct which creates a substantial risk of such physical injury, serious physical injury or death, or
(iii) commits or attempts to commit against a against a child the crime of disseminating indecent materials.
(iv) engages in any conduct relating to a child that is prohibited by the New York State Penal Code.

This specific definition of child abuse is long overdue in New York State and helpful to state agencies that handle aspects of the investigation or prosecution of child abuse cases.

Many other Bills affecting foster care specifically, and children's issues generally, were proposed in the New York Legislature during 2003 but failed for a variety of reasons. Some will be reintroduced with or without revision in 2004 in addition to legislation that will be introduced for the first time.

Implementing legislation is an imperfect process with many variables. Legislators across New York State and the United States work hard to produce results within the confines and obstacles of the process. Legislators will continue to strive in the future to produce legislation to protect our nation's children.

*Many thanks to New York State Assemblyman Andrew P. Raia for providing reference material for this article.

**Joi Kohlhagen is the Founder and Editor of Perspectives On Youth.