Kinship Care Statute and Regulation

A. Kinship (Relative Foster Care): OCFS Website Definition

“Kinship (relative) foster homes are approved according to the above criteria (see OCFS certification criteria) to provide foster care for a specific child by a relative within the second or third degree to the parent(s) or stepparent(s) of the child.

A relative within the second or third degree to the parent(s) or stepparent(s) of a child refers to those relatives who are related to the parent(s) or stepparent(s) through blood or marriage either in the first, second, or third degree in the kinship line. A relative within the second or third degree of a parent includes the following:

  • Grandparents of the child.
  • Great-grandparents of the child.
  • Aunts and uncles of the child, including the spouses of the aunts or uncles.
  • Siblings of the child.
  • Great-aunts and great-uncles of the child, including the spouses of the great-aunts or great-uncles.
  • First cousins of the child, including the spouses of the cousins.
  • Great-great grandparents of the child.
  • An unrelated person where placement with such person allows half-siblings to remain together in an unapproved foster home, and the parents or stepparents of one of the half-siblings is related to such person in the second or third degree.”

B. New York State Statutes: Source National Conference of State legislatures

2006 N.Y. Laws, A 9617, Chap. 12 – Sec. 1. Allows the court to place a child with a relative or “another suitable person”who has indicated a desire to become a foster parent for the child.   Sec. 2. Clarifies that a relative shall not have previously refused to be considered as a foster parent or custodian of the child; refusal due to an inability to provide immediate care because of a lack of resources shall not constitute a previous refusal.  Clarifies that no child shall be placed with a relative before final approval or certification of such relative as a foster parent.

2005 N.Y. Laws, Chap. 671 – Requires the local social service departments to conduct an immediate investigation to locate all suitable relatives identified by any respondent parent or any non-respondent parent or a child over the age of five who plays or has played a significant positive role in his or her life.

Requires that the relative be informed of the proceeding and of the opportunity for becoming foster parents or for seeking custody or care of the child and that the child may be adopted by foster parents if attempts at reunification with the birth parent are not required or are not successful.

Requires the local department to record the results of the investigation.  If the court orders the child removed from his or her home, the court is required to inquire as to the status of the department’s efforts to locate relatives of the child, including any non-respondent parents and all of the child’s grandparents.  The court must also inquire as to whether the child has identified any relatives and whether any relative who has been located has expressed interest in becoming a foster parent or in seeking custody or care of the child.

Requires, once such inquiry is complete, the court to place the child with the local social services department and that the court may direct the department to have the child reside with a relative and to commence an investigation of the home of such relative within 24 hours and, thereafter, expedite approval or certification of such relative, if qualified, as a foster care parent.

Requires the local department to report to the court immediately if the home is found to be unqualified so that the court may make an appropriate placement determination.

Requires the court to hold a hearing to determine whether child should be placed with a relative in foster care once a relative has made an application to become a foster parent.  Sets provisions for the hearing to include that the relative must be within the third degree of consanguinity to either parent, the child must have been temporarily removed and placed in non-relative foster care, the relative is willing to become a foster parent, the application is brought within 6 months from the date the relative received noticed about the removal, and the local social services department has refused to place the child with the relative for reasons other than the relative’s failure to qualify as a foster parent.

Requires the court to direct the local department to commence an investigation of the home of the relative within 24 hours after the hearing, if the court determines that placement is in the child’s best interest.

2005 N.Y. Laws, S 3216, Chap. 119 – Allows the parent of a minor to designate another person as a person in parental relation to a minor, for a period not to exceed six months, for the purpose of making education and health decisions regarding the child.  Requires the designation to be in writing and to include the parent’s name, the name of the designee, the name of the child, the parent’s signature and the date.  Requires, for designations more than 30 days, a parental address and phone number, date of birth of each child, date the designation commences, the written consent of the designee and a statement that there is no prior court order prohibiting the parent from making the designation.  Allows the designation to specify the treatment, diagnosis or activities for which consent is unauthorized, information about non-authorized treatment or any other limitation.  Allows a parent to revoke a designation by notifying, either orally or in writing, the school or health care provider.  Specifies that the designation shall not cause a change in the child’s school district and presumes that the child is a resident of the school district in which the parent resided at the time the designation was made.   Provides immunity to school personnel and health care providers.

2003 N.Y. Laws, S 6818, Chap. 749 – Allows a parent to authorize an adult into whose care a minor has been entrusted to consent to health care treatment and health plan enrollment, school enrollment, absence from school, and participation in school programs and school sponsored activities.

C. Certification / Approval of Emergency Non-Relative and Relative Foster Homes: Title 18 of NYCRRR, Subchapter C, Article 3, Part 443, Section 443.7 

(a) A potential foster home or the home of a relative of a foster child may be certified or approved as an emergency foster home under the following allowable circumstances:

(1) Allowable circumstances:

(i) a child is removed from his or her own home pursuant to section 1021, 1022, 1024, or 1027 of the Family Court Act or a child is removed and placed into foster care pursuant to article 3, 7 or 10 of the Family Court Act or section 384-a of the Social Services Law; or
(ii) a child currently placed in a foster care setting needs to be placed in a foster home and the social services district documents within the uniform case record a compelling reason why such home needs to be certified or approved on an emergency basis;

(2) an eligible relative or non-relative, identified in section 443.1(g) and (h) of this Part, is identified by the child, child’s parent(s) or stepparent(s), the court, a representative of the local district or other interested party, as potentially appropriate to provide foster care to the child or such person or relative volunteers to provide foster care to the child. For the purposes of this section, an eligible non-relative may include, but is not limited to, a child’s godparent, neighbor, family friend, or an adult with a positive relationship with the child.

(b) Before placing a foster child with a potential caretaker or eligible relative on an emergency basis the authorized agency must:

(1) secure a signed and dated statement from the potential caretaker or eligible relative indicating the exact relationship to the child and the child’s parent(s), that the potential caretaker or eligible relative is willing to provide foster care for the child and an assurance that the potential caretaker or eligible relative understands that the child is in the legal custody of the commissioner of social services and that by accepting responsibility for providing foster care for the child, potential caretaker or eligible relative agrees to comply with foster care requirements, including, but not limited to those involving the role and authority of the certifying or approving authorized agency and the social services district with legal custody of the child to supervise the placement.
(2) perform a home study of the potential caretaker’s or eligible relative’s home and family on an expedited basis which assesses the potential caretaker’s or eligible relative’s home to ensure that there is no apparent risk to the health and safety of the child;
(3) perform a home study of the potential caretaker’s or eligible relative’s home and family on an expedited basis which assesses the potential caretaker’s or eligible relative’s family, focusing on the following factors:

(i) the family’s relationship with the child and the child’s parent(s) or stepparent(s);
(ii) the care provided to other children in the home by the potential caretaker or eligible relative;
(iii) the potential caretaker’s or eligible relative’s knowledge of the circumstances and conditions that led to the need for the child’s foster care placement;
(iv) the past role of the potential caretaker or eligible relative in helping and/or protecting the child from and/or preventing occurrences of abuse or maltreatment of the child; and
(v) the present ability of the potential caretaker or eligible relative to protect the child placed in its home from abuse or maltreatment and the potential caretaker’s or eligible relative’s ability to understand the need to protect the child from abuse or maltreatment;

(4) explain to the potential caretaker or eligible relative the agency’s role and authority to supervise the placement;

(5) obtain information necessary to contact character references pursuant to this Part; and

(6) review agency records to determine whether or not the potential caretaker(s) or eligible relative(s) have a prior history of abuse or maltreatment.

(c) If the home is found suitable after the requirements of subdivision (b) of this section have been completed, it will be certified or approved as an emergency foster home or an emergency relative foster home for 90 days from the date of placement of the child in the home.

(d) The potential caretaker or eligible relative must execute an agreement with the authorized agency within seven days of placement that provides that the potential caretaker or eligible relative will comply with provisions of this Part.

(e) Within seven days of placement, the authorized agency must obtain:

(1) a completed State Central Register Clearance form, and submit such form to the Office of Children and Family Services pursuant to section 424-a of the Social Services Law and section 443.2(b)(8) of this Part; and
(2) if the applicant or other person 18 years of age or older who resides in the home of the applicant resided in another state at any time during the five years preceding the emergency approval or emergency certification issued pursuant to this section, the documentation necessary to enable the agency to request child abuse and maltreatment information maintained in the child abuse and maltreatment registry from the applicable child welfare agency in each such state of previous residence;

(f) On the date of the foster child’s placement in the certified or approved emergency foster home or within one business day thereof, the authorized agency must provide a sufficient number of blank fingerprint cards for the foster parent(s) and each person over the age of 18 currently residing in such home and a description of how the completed fingerprint cards will be used upon submission to the authorized agency by the foster parent(s). The foster parent(s) must submit the completed fingerprint cards to the authorized agency no later than two weeks following receipt of such cards for the purpose of a criminal history record check performed by both the Division of Criminal Justice Services and the Federal Bureau of Investigation.

(g) Emergency foster homes and emergency relative foster homes certified or approved on an expedited emergency basis for 90 days, may continue to provide foster care beyond the 90th day of placement if they are finally certified or approved on or before the end of the 90th day or if the provisions of subdivision (h) of this section apply. For an emergency foster home to receive final certification or approval, all requirements for certification or approval as a foster home as set forth in this Part must be met within 90 days from the date of placement.

(h) Continued placement.

(1) An emergency foster home certified or approved on an expedited emergency basis for 90 days in accordance with this section may continue to provide foster care beyond the 90th day of certification or approval as an emergency foster home when the foster parent has otherwise satisfied all of the requirements for final certification or approval as a certified or approved foster home except for the completion of the Statewide Central Register of Child Abuse and Maltreatment check process in accordance with section 443.2 of this Part or the completion of the criminal history record check process in accordance with section 443.8 of this Part where the certified emergency foster parent or approved emergency relative foster parent has otherwise complied with the requirements of subdivisions (e) and (f) of this section.
(2) Such certified emergency foster parent or approved emergency relative foster parent may continue to provide foster care until the completion of the Statewide Central Register of Child Abuse and Maltreatment check process as set forth in section 443.2 of the Part and the criminal history record check process as set forth in section 443.8 of this Part or unless the certification or approval is otherwise revoked by the authorized agency for cause in accordance with this Part.
(3) Upon receipt of the result(s) of the Statewide Central Register of Child Abuse and Maltreatment and the criminal history record check(s) from the Office of Children and Family Services, the authorized agency must make a decision whether to finally certify or approve such emergency foster parent within 60 days of the receipt of such results. If once the Statewide Central Register of Child Abuse and Maltreatment check process and criminal history record check process are completed, and the authorized agency determines that the home should continue to be certified or approved, a final certification or approval must be issued for the home.

(i) Failure to meet the requirements for certification or approval of the foster home. Except as set forth in this section, if the emergency foster parent(s) or the relative foster parent(s) fails to meet all requirements for approval pursuant to this Part within 90 days from the date of placement, the authorized agency must:

(1) provide notice to the foster parents or relative foster parent(s) within the first 90 days of placement if such requirement(s) for certification or approval as a foster home have not been or cannot be met. Such notice must be provided no later than 20 days prior to the expiration date of the emergency certification or approval and must identify the particular problem(s) that constitute a barrier to certification or approval as a foster home;
(2) revoke a foster parent(s) or a relative foster parent(s) certification or approval pursuant to section 443.12 of this Part if all requirements for approval are not met within the first 90 days from the date of placement;
(3) upon revocation of an approval or certification, remove the child from the home of the relative or foster parent, place such child in a suitable certified foster home or an approved relative foster home, and inform the relative of the right to request a hearing in accordance with the provisions of section 400 of the Social Services Law; and
(4) remove the child from the home of the foster parent or relative pursuant to section 400 of the Social Services Law and section 443.5 of this Part when health and safety risks to the child warrant such removal and place the child in a suitable certified foster home or an approved relative foster home. At the time the child is removed from the home, the relative or caretaker foster parent must be informed of the right to request a fair hearing in accordance with the provisions of section 400 of the Social Services Law.

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