Foster Home Decertification in New York State

A Certificate to Board Child is time-limited and must be renewed after 12 months if a foster parent is to continue to provide foster family care. Before expiration, the agency that issued the Certificate may revoke it provided it gives the foster parent 20 days advance written notice, sets forth its reason or reasons and offers the foster parent a meeting with an agency official to discuss its decision (18 N.Y.C.R.R. 443.11). Revocation, or decertification, is a discretionary act not reviewable at a Fair Hearing before an OCFS Administrative Law Judge for abuse of discretion or otherwise. The only parameters, more by way of illustration than limitation, is a Certificate may be revoked if the foster parent or foster home falls out of compliance with any of the criteria for certification or if there is no need for a foster home with its particular characteristics (18 N.Y.C.R.R. 443.11). Revocation for other reasons must be “for cause” within the meaning of Social Services Law 379.

With no recourse through OCFS, a foster parent aggrieved by decertification must commence a proceeding in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules. The issues in an Article 78 proceeding are narrow. The Court determines not whether decertification was right or wrong but whether the revocation decision was effected by an error of law, whether it was made in violation of lawful procedure, was arbitrary or capricious or not supported by substantial evidence. Court action is prohibitively costly for most decertified foster parents. There are less than 6 reported decisions and no decisions in which Courts have construed “for cause” in the context of decertification.

If decertification is annulled through an Article 78 proceeding, a victory will not restore certification. Most Certificates will have expired by the time a decision is rendered or will expire shortly thereafter and the Court has no authority to order renewal. Moreover, a highly relevant consideration for renewal is an agency’s assessment of its working relationship with a foster parent as to which agencies have broad virtually unfettered discretion to decide. What a victory does accomplish is that it eliminates the stigma of involuntary closure.

When decertifying a foster parent, an agency enters that fact into a state-wide data base of foster parents, selects one of 35 pre-programed reasons for its decision and sets forth its recommendation as to whether or not the foster parent be recertified. An agency to which a recertification application is submitted has access to that information and while we want to believe it will made an independent, objective and enlightened assessment, in reality that rarely happens. The only empirical study I know is one I conducted in 2002. I obtained data from my 8 agency clients on the number of recertification applications they received during the fiscal year ending June 30, 2002, the number accepted for home-study and the number approved. The results were: 48; O; O. It is widely perceived that once a foster parent is decertified involuntarily, he is blacklisted.

It has been 26 years since New York County Supreme Court Justice Bentley Kassel observed in Goldstein v. Lavine, 100 Misc.2d 126 (Sup. Ct. N.Y.Co. 1980) that the “State must adopt clearer guidelines for review of decisions to decertify foster parents.. It never has. He also noted that, were the issue before him, he “might well conclude” that foster parents have a constitutionally protected properly interest in their unexpired Certificate entitling them to due process safeguards in connection with decertification. That issue has not been resolved.

Source: "Taking Your Place at the Table" by Micheal Neff, Esq., Developed for the NYSCCC Spring 2006 Link Family Gathering and Permanency Planning Seminar © 2006

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