MATTER OF JOSEPH DL, 2025 NY Slip Op 4178 – NY: Appellate Div., 2nd Dept. 2025:
“APPEAL by the subject child, in a proceeding pursuant to Social
Services Law § 384-b, from an order of the Family Court (Margaret
Morgan, J.), dated March 14, 2024, and entered in Queens County. The
order, insofar as appealed from, after a hearing, granted the motion of
nonparty Administration for Children’s Services of the City of New York
for approval of the child’s placement in a qualified residential
treatment program and, in effect, denied those branches of the child’s
motion which were for disapproval of his placement in a qualified
residential treatment program and, in effect, to direct the petitioner
or nonparty Administration for Children’s Services of the City of New
York to locate a foster family home placement for him.
This appeal concerns the Family Court’s approval of the subject
child’s placement in a qualified residential treatment program
(hereinafter QRTP) pursuant to the New York State Family First
Prevention Services Act. This appeal presents this Court with the
opportunity to decide an issue of first impression, namely, which
factors a court must consider in approving a child’s placement in a
QRTP. Under the circumstances of this case, we conclude that the Family
Court should not have approved the child’s placement in a QRTP, as the
record did not support the court’s finding that there was not an
alternative setting available that could meet the child’s needs in a
less restrictive environment.
I. Background of the Proceeding
The child was born in 2016 and has a diagnosis of autism spectrum
disorder. The child was first placed in a foster family home in 2019,
after a finding of neglect was entered against his birth mother. In May
2020, the petitioner, SCO Family of Services (hereinafter SCO), a
foster-care agency designated by the Administration for Children’s
Services of the City of New York (hereinafter ACS), commenced a
proceeding against the child’s birth mother and putative birth father to
terminate their parental rights on the grounds of permanent neglect and
abandonment. In June 2022, the Family Court terminated the parental
rights of both parents and freed the child for adoption.
In March 2023, the child was placed in a new foster family home. SCO
indicated that the child was adjusting well to this new foster family
home and was making significant developmental improvements. However, on
January 12, 2024, after the child went to school with a small bump on
his forehead, SCO removed the child from this foster family home on an
emergency basis and transferred the child to a QRTP that specialized in
working with children with developmental disabilities.
On January 17, 2024, the child moved, inter alia, for disapproval of
his placement in a QRTP and, in effect, to direct SCO or ACS to locate a
foster family home placement for him. On that same date, ACS moved for
approval of the child’s placement in a QRTP pursuant to Family Court Act
§ 1055-c.
In March 2024, the Family Court conducted a hearing to determine
whether the child should remain in a QRTP. During the hearing, ACS
called Kobi Loehr, a foster care supervisor at SCO, to testify. Loehr
testified that the child was placed in a QRTP because SCO did not have
any other foster family homes available that could meet the child’s
needs. Loehr testified that, at the time of the hearing, SCO was
reviewing other foster care options for the child and was working on
“stepping [the child] up” so he could be placed in a foster family home
for children with developmental disabilities. On cross-examination,
Loehr testified that SCO had not yet placed the child in a foster family
home for children with developmental disabilities or a therapeutic
foster family home through another agency because that would require a
“step-up” conference, which had not been held as of the date of the
hearing. Loehr further testified that a QRTP was the least restrictive
setting SCO could find but conceded that a QRTP was not the least
restrictive setting for the child.
A qualified individual report was introduced into evidence at the
hearing. The report was prepared by a qualified individual in February
2024, pursuant to Social Services Law § 409-h and Family Court Act §
1055-c(2). The report did not recommend continuing the child’s QRTP
placement, on the ground that a non-QRTP placement, such as a foster
family home for children with developmental disabilities or a
therapeutic foster family home, would be the most appropriate and least
restrictive recommended placement setting for the child based on his
treatment needs, treatment goals, and permanency planning goal of
adoption.
In an order dated March 14, 2024, the Family Court granted ACS’s
motion for approval of the child’s placement in a QRTP and, in effect,
denied those branches of the child’s motion which were for disapproval
of his placement in a QRTP and, in effect, to direct SCO or ACS to
locate a foster family home placement for him. The court found that the
child’s placement in a QRTP was inconsistent with his long-term
permanency goal of adoption and that the child’s needs could be met in a
foster family home for children with developmental disabilities or a
therapeutic foster family home. Nevertheless, the court determined that
circumstances existed that necessitated the continued placement of the
child in the QRTP, since Loehr’s testimony demonstrated that there were
no alternative settings available that could meet the child’s needs. The
court determined that continued placement in the QRTP was in the
child’s best interest, as the QRTP was meeting the child’s special
needs. The child appeals.
II. Family First Prevention Services Act
The federal Family First Prevention Services Act (hereinafter the
FFPSA) (42 USC §§ 672 and 675a), enacted in 2018, sets certain
requirements for the placement of a child in a congregate care setting,
such as a QRTP, as a prerequisite for federal funding (see id. §
672[k][1][B]). The purpose of the FFPSA is to “`ensure[ ] more foster
children are placed with families by limiting federal reimbursement to
only congregate care placements that are demonstrated to be the most
appropriate for a child’s needs, subject to ongoing judicial review'” (Matter of Malachi B. [Administration for Children’s Servs.], 228 AD3d 570, 571
[emphasis omitted], quoting HR Rep 114-628, 114th Cong, 2d Sess at 28).
The legislative history of the FFPSA acknowledges that, “[a]lthough
there is an appropriate role for congregate care placements in the
continuum of foster care settings,” these placements “should be used
only for as long as is needed to stabilize the child or youth so they
can return to a family-like setting” since “most children and youth, but
especially young children, are best served in a family setting” (HR Rep
114-628, 114th Cong, 2d Sess at 60).
In 2021, New York State codified the provisions of the FFPSA by
amending relevant provisions in the Family Court Act and the Social
Services Law (see L 2021, ch 56, § 1, part L). As relevant to
this appeal, Social Services Law § 409-h provides that, within 30 days
of the placement of a child in a QRTP, a “[q]ualified individual” (id.
§ 409-h[5]) shall complete an assessment as to the appropriateness of
such placement, including an assessment of the strengths and needs of
the child and a determination of “the most effective and appropriate
level of care for the child in the least restrictive setting . . .
consistent with the short-term and long-term goals for the child as
specified in the child’s permanency plan” (id. § 409-h[1][a]).
Where the qualified individual determines that placement of the child in
a foster family home is not appropriate, the qualified individual must
specify in writing the reasons why such a placement cannot meet the
child’s needs (see id. § 409-h[1][c]). However, “[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.). If the qualified individual
determines that the placement of the child in a QRTP is not appropriate,
“the child’s placement shall continue until the court has an
opportunity to hold a hearing to consider the qualified individual’s
assessment and make an independent determination” regarding the
appropriateness of the child’s placement (id. § 409-h[3]).
Pursuant to Family Court Act § 1055-c, the Family Court must consider
the qualified individual’s assessment within 60 days of a child’s
placement in a QRTP (see id. § 1055-c[2][a]). The court must
“[d]etermine whether the needs of the child can be met
through placement in a foster family home and, if not, whether placement
of the child in a [QRTP] provides the most effective and appropriate
level of care for the child in the least restrictive environment and
whether that placement is consistent with the short-term and long-term
goals for the child, as specified in the child’s permanency plan” (id. § 1055-c[2][b]).
Upon such review, the court must approve or disapprove the placement of the child in a QRTP (see id.
§ 1055-c[2][c]). Where the qualified individual determines that the
placement of the child in a QRTP is not appropriate, the court may
approve the placement of the child in a QRTP only if the court finds
that “(A) circumstances exist that necessitate the continued placement
of the child in the [QRTP]; (B) there is not an alternative setting
available that can meet the child’s needs in a less restrictive
environment; and (C) that continued placement in the [QRTP] is in the
child’s best interest” (id. § 1055-c[2][c][i][A]-[C]). The court
must state these findings in a written order and include the “specific
reasons” for these findings (id. § 1055-c[2][c][i], [ii]). The court also may consider other relevant and necessary information in making its determination (see id. § 1055-c[2][d]).
If the court disapproves QRTP placement,
“the court shall, on its own motion, determine a schedule
for the return of the child and direct the local social services
district to make such other arrangements for the child’s care and
welfare that is in the best interest of the child and in the most
effective and least restrictive setting as the facts of the case may
require”
and may issue a new placement order if necessary (id. § 1055-c[3]).
III. Legal Analysis
Here, since the qualified individual assessed the child and
determined that placement in a QRTP would not be appropriate, the Family
Court could approve the child’s placement in the QRTP only if it
complied with the requirements set forth in Family Court Act §
1055-c(2)(c). Although the court found that QRTP placement was
inconsistent with the child’s long-term permanency goal of adoption and
that the child’s needs could be met in a less restrictive environment,
the court nevertheless approved the child’s placement in a QRTP. The
court, in essence, based this determination on a finding that there was
not an alternative setting available that could meet the child’s needs
in a less restrictive environment. The child points to Social Services
Law § 409-h to support his contention that the court was not permitted
to consider the lack of available foster family homes in making its
determination. Social Services Law § 409-h states that a “qualified
individual” may not rely on a “shortage or lack of foster family homes”
in determining that the child’s needs cannot be met in a foster family
home (id. § 409-h[1][c]). In contrast, Family Court Act § 1055-c
states that the court’s written order approving a child’s placement in a
QRTP must state, among other things, that “there is not an alternative
setting available that can meet the child’s needs in a less restrictive
environment” (id. § 1055-c[2][c][i][B]). Thus, contrary to the
child’s contention, the court was required to consider the availability
of foster family homes, or lack thereof, in making its determination.
However, the Family Court’s findings in this regard were not
supported by the record. The court’s finding that there was not an
alternative setting available was based on Loehr’s testimony that SCO
did not have any foster family homes available that could meet the
child’s needs but that SCO was working to place the child in a foster
family home for developmentally disabled children and was actively
exploring families to adopt the child. On cross-examination, Loehr
testified that SCO had not yet placed the child in a foster family home
for children with developmental disabilities or a therapeutic foster
family home through another agency because this would require a
“step-up” conference, yet Loehr failed to explain why a “step-up”
conference had not been held during the two months in which the child
had been placed in the QRTP. This testimony was insufficient to support
the court’s finding that there was not an alternative setting available
that could meet the child’s needs in a less restrictive environment.
Furthermore, Loehr’s testimony that the child had continuously lived in a
foster family home setting from 2019 until January 2024, during which
time his needs consistently had been met, calls into question the
purported unavailability of any alternative, less restrictive settings.
Under these circumstances, the Family Court should not have approved
the child’s placement in the QRTP, as the court’s finding that there was
not an alternative setting available that could meet the child’s needs
in a less restrictive environment was not supported by the record (see Family Ct Act § 1055-c[2][c][i][B]; see also Matter of Felpie R. [Iris C.], 76 Misc 3d 373, 376 [Fam Ct, Bronx County]; Matter of Trevon G. [Natova G.],
77 Misc 3d 1211[A], 2022 NY Slip Op 51188[U] [Fam Ct, Bronx County]).
In light of our determination, we need not consider whether the record
supported the court’s findings that circumstances existed that
necessitated the continued placement of the child in the QRTP (see Family Ct Act § 1055-c[2][c][i][A]) or that continued placement in the QRTP was in the child’s best interest (see id. § 1055-c[2][c][i][C]).
IV. Conclusion
Accordingly, the order is reversed insofar as appealed from, on the
law and the facts, ACS’s motion for approval of the child’s placement in
a qualified residential treatment program is denied, those branches of
the child’s motion which were for disapproval of his placement in a
qualified residential treatment program and, in effect, to direct SCO or
ACS to locate a foster family home placement for him are granted, and
the matter is remitted to the Family Court, Queens County, for further
proceedings in accordance with Family Court Act § 1055-c(3), to be
conducted expeditiously.
MILLER, J.P., DOWLING and GOLIA, JJ., concur.
ORDERED that the order is reversed insofar as appealed from, on the
law and the facts, without costs or disbursements, the motion of
nonparty Administration for Children’s Services of the City of New York
for approval of the child’s placement in a qualified residential
treatment program is denied, those branches of the child’s motion which
were for disapproval of his placement in a qualified residential
treatment program and, in effect, to direct the petitioner or nonparty
Administration for Children’s Services of the City of New York to locate
a foster family home placement for him are granted, and the matter is
remitted to the Family Court, Queens County, for further proceedings in
accordance with Family Court Act § 1055-c(3), to be conducted
expeditiously.”