Family Court, Bronx County, July 5, 2022

Administration for Children's Services, Family Court Legal Services (Wesley Brandt of counsel), for petitioner.

Legal Aid Society (Sarah Bodack of counsel), Attorney for the Child.

Bronx Defender Services (Rebecca Suldan of counsel) for respondent.

Procedural History

The Administration for Children's Services (ACS hereafter) {**76 Misc 3d at 375}filed the underlying neglect petition against Iris C. on January 13, 2022. The petition alleges that she neglected the subject child, Felipe R., under Family Court Act § 1012, in that she used excessive corporal punishment against him and his sister, Judith R. Ms. C. was previously found to have neglected another sibling, Victor R., on January 26, 2022, through a submission under Family Court Act § 1051 (a).

On April 18, 2022, ACS filed motion No. 4 seeking an order under Family Court Act § 1055-c that continued QRTP (qualified residential treatment program) placement is necessary to adequately address Felipe's needs; the attorneys for the child and for the mother ask that this application be denied.^[FN1]

The hearing commenced on June 6, 2022, and continued through June 22, 2022. ACS entered three documents as petitioner's 1-3: the QI assessment for Felipe; the CALOCUS (Child and Adolescent Level of Care Utilization System instrument) for Felipe; and the [*2]summary document for Felipe. Each of these was prepared by the ACS QI who also testified concerning the basis for her recommendation that Felipe's needs require continued placement in a qualified residential treatment facility. ACS did not submit any other testimony or witnesses.

In response, the Attorney for the Child (AFC) cross-examined the QI and marked as AFC No. 1 a report entitled "Away From Home: Youth Experiences of Institutional Placements in Foster Care." ACS objected to admitting this document as lacking foundation. The court reserved decision.

[1] The court has now reviewed the document and finds that it is admissible under CPLR 4532, which covers the admission of periodicals of general circulation.

"Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to printed materials purporting to be newspapers or periodicals of general circulation; provided however, nothing herein shall be deemed to preclude or limit the right of a party to challenge the authenticity of such printed material, by extrinsic evidence or otherwise, prior to admission by the court or to raise the issue of authenticity as an issue{**76 Misc 3d at 376} of fact" (id.).

ACS did not challenge the validity or authenticity of the report. The report, prepared by Think of Us, a nonprofit policy and research organization dedicated to child welfare practice, was supported by the Annie E. Casey Foundation and released in July 2021. Through structured research with foster youth, the authors document the negative impacts of unnecessary group home placement. It has been widely distributed and reported on, including forming a basis for an editorial published in the New York Times.^[FN2]

Additionally, all parties agree that hearsay is admissible under section 1055-c, under Family Court Act § 1046 (c), which reads: "In a dispositional hearing and during all other stages of a proceeding under this article, except a fact-finding hearing, and in permanency hearings and all other proceedings under article ten-A of this act, only material and relevant evidence may be admitted."

This report qualifies under CPLR 4532 and is both material and relevant and is therefore admitted as AFC No. 1.

Legal Standard for QRTP

[2] This decision pertains to a contested hearing pursuant to Social Services Law § 393 (2) and Family Court Act §§ 353.7 (3); 756-b (3); 1055-c (2); 1091-a and 1097, through which the Family First Prevention Services Act (FFPSA), 42 USC §§ 672 and 675a, is codified in New York State. This statute, in relevant part, is intended to ensure that children removed from their homes do not languish in restrictive, congregate settings unnecessarily. The court is asked to determine the most appropriate and least restrictive placement possible for Felipe. Specifically, in order to maintain his current placement, the court must determine whether (1) Felipe's needs can/cannot be met through a placement in family-based foster care; (2) a group placement is the most effective and appropriate placement; (3) placement is the least restrictive possible placement given Felipe's needs; and (4) such placement is consistent with the long- and short-term planning goals in place for the subject child. If the court determines that placement in a QRTP is required, it must specifically state the basis for that decision and whether an alternative setting could meet the child's needs.{**76 Misc 3d at 377} [*3]

Decision

The court has reviewed all the evidence and testimony and finds that ACS has failed to meet its burden under FFPSA and Family Court Act § 1055-c.

Felipe has autism. He struggles with self-soothing, hygiene, expressing his needs, and other basic tasks. However, he forms meaningful bonds with family, including with his mother and siblings. Moreover, Felipe will need the same basic assistance whether he is in a group setting; at home; or in a therapeutic foster home. The services that he currently receives at his group home, including assistance with hygiene, school, and occupational therapy, are available in the community. Indeed, until the filing of the underlying petition, he has been living with his adoptive mother and siblings where his basic needs have been met even without extensive additional services. Felipe was also receiving speech, physical, and occupational therapy through his District 75 school placement. ACS's documentation does not present any evidence of a change in his medical, physical or emotional circumstances that would demonstrate a sudden compelling reason for his placement in a residential treatment facility as opposed to a family setting.

Are some things easier to accomplish in a group home? Sure. The court can see that it would be easier to attend to Felipe's needs in a group care facility where there are numerous trained professionals and an onsite school. But that is not the standard that either ACS or the court is asked to use. Rather, the court must find that the setting is the least restrictive possible. A qualified individual is required to complete an assessment in order to aid in that determination. In assessing the most effective and appropriate level of care, the qualified individual must consider "whether the needs of the child can be met with family members or through placement in a foster family home." (Social Services Law § 409-h [1] [a].) If the qualified individual does determine that a child may not be placed in a foster family home, they must specify the reasons why. (Id. § 409-h [1] [c].) "A shortage or lack of foster family homes shall not constitute circumstances warranting a determination that the needs of the child cannot be met in a foster family home." (Id.) Nothing in the ACS evidence explains whether Felipe's needs can be met through a family foster home setting or documents that a QRTP is the least restrictive setting for Felipe. To the contrary, the QI admitted during her testimony that she did not base her placement recommendation on a comparison between different{**76 Misc 3d at 378} possible placements. Rather, she relied on the tools provided to her by ACS. None of these tools adequately requires the QI to document alternatives or consider the pros and cons of each, despite their statutory obligation. Perhaps they should. Instead, the ACS QI was forced to admit that she did not consider whether Felipe could receive OT in the community; had not spoken with his District 75 school; was not aware of the potential downside of group home placement; and did not observe or speak with Felipe directly. Further, the qualified individual report clearly states that initial attempts were made to place Felipe in a therapeutic foster home, but no homes were identified.

Most importantly, ACS did not adequately account for how placement in a residential treatment center would impact Felipe's planning goals. The goal is for Felipe to return home. He is only 10 years old. He is currently among the youngest residents of Edenwald and, even according to ACS reports, did not transition to group care easily; he has received bruises during his stay there; he does not share well and continues to act out during group activities. But most importantly, as documented in Away From Home, young people placed in group facilities lack [*4]access to the kind of love and support that is possible in a family setting.^[FN3] Felipe, as shown through his connection to his current family, benefits from long-term relationships and should not be denied that opportunity any longer.

The court finds that a placement in a group home is not the least restrictive placement possible for Felipe; nor is it consistent with his short- or long-term needs. To find otherwise would essentially mean that any child suffering from relatively severe autism can only live in a group facility.

Finding and order on QRTP: The court finds that under the requirements of Family First, ACS must seek a therapeutic foster home or, if after the 1028 hearing is complete, Felipe is returned home, provide adequate at-home services consistent with Felipe's short- and long-term needs.