BILL NUMBER:  S4833A

 TITLE OF BILL :  An act to amend the social services law, in relation
to eligibility of children for subsidized kinship guardianship
assistance to expedite permanency for foster children before the
family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

The enactment of the subsidized kinship guardianship assistance
program ("KinGAP") in 2010 marked a milestone in adding a valuable
permanency alternative to the menu of options available to expedite
the exodus of children from foster care into permanent families.
Experience with the program, especially in New York City where it is
frequently utilized, has demonstrated its enormous value, not only for
the children and families who are its beneficiaries, but also for the
State in its constant quest to improve its record in achieving timely
permanency for the children in its care. And the need for improvement
cannot be overstated. Both the second and third "Child and Family
Service Reviews (CFSR's)," conducted by the Administration for
Children and Families of the United States Department of Health and
Human Services (HHS) in 2008 and 2015, respectively, concluded that
New York's score ranked among the lowest in the nation and
demonstrated how far the State needs to progress in order to achieve
              

Federal time-to-permanency targets. This measure would enhance the
reach and efficacy of this cost-effective, valuable permanency option.

First, the measures makes two changes to fill significant gaps in the
definition of individuals eligible to be appointed as kinship
guardians of children in foster care. It would amend the definition of
"prospective relative guardian" in subdivision three of section 458-a
of the Social Services Law to include prospective guardians who are
related to only one of a sibling group, thereby allowing sibling
groups to continue to be placed together. Thus, the half-sibling of a
child could be placed with that child's prospective kinship guardian
even though the half-sibling is not related by blood, marriage or
adoption to the prospective guardian. Further, it would add as
prospective guardians those "with a positive relationship with the
child, including, but not limited to, a step-parent, godparent,
neighbor or family friend." Both of these changes are consistent with
practices and definitions used for foster care, thus allowing
continuity of care by authorizing a permanency option consistent with
children's prior placements and, importantly, preventing the breakup
of sibling groups. Under Federal law and under section 458-a of the
Social Services Law, in fact, a prospective guardian must have cared
for a child for six months as a foster parent, underscoring the
importance of utilizing consistent definitions. Similar to this
measure, regulations of the State Office of Children and Family
Services define prospective kinship foster parents to include, but not
be limited to, "a child's godparent, neighbor, family friend or an
adult with a positive relationship with the child." See 18 NYCRR §
443.7(a)(2).

Both of these changes are clearly permissible and thus reimbursable
under Federal law, since the law authorizing KinGAP specifically
delegates to the states the authority to define prospective guardian
relationships and does not use the term "relative" or "kinship." See
Fostering Connections to Success and Increasing Adoptions Act of 2008
(Public Law 110-351; 42 U.S.C. § 675(7)).* The Federal Act
specifically authorizes states to include half- siblings who may not
be related to the prospective guardian, a feature explicitly contained
in the laws of the following eight states: Idaho, Michigan, Minnesota,
Nevada, North Dakota, Rhode Island, Tennessee and Wisconsin. Current
New York law, in limiting prospective guardians to those who are
related by blood, adoption or marriage, uses a far narrower definition
than that which is used in the vast majority of states that receive
federal guardianship assistance. As of 2015, the following 31
jurisdictions utilized a more expansive definition that includes
"fictive kin," many of which utilize factors similar to the instant
measure: Alaska, Arkansas, California, Colorado, District of Columbia,
Georgia, Hawaii, Kansas, Louisiana, Maine, Maryland, Massachusetts,
Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, North
Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island,
South Dakota, Tennessee, Texas, Vermont, Washington, West Virginia and
Wisconsin. Among states not including "fictive kin," some nonetheless
utilize a definition broader than that used in New York; Illinois, for
example, includes god-parents and step-relatives and spouses of
relatives and step-relatives, while Michigan includes putative
fathers.

Second, this measure would rectify an anomaly in section 458-a of the
Social Services Law, i.e., that continued KinGAP assistance under
current law is only available beyond the age of 18 if the Guardianship
Assistance Agreement did not commence until the child was already 16
years of age or older. This means that a child 14 or 15 (or younger),
who may want to go to college or participate in a vocational program
while living in the guardian's home, would be foreclosed from a
permanency option that may be the best, and often the only, option
available. Such children are faced with an untenable choice: to delay
permanency until they reach the age of 16 (thus costing the State and
county continued foster care assistance), to limit the assistance
available only until they age out at 18, or to sacrifice the kinship
guardianship permanency option altogether. The original justification
for the age limitation was that Federal reimbursement for extended
KinGAP assistance is only available for youth whose KinGAP agreement
commenced on or after their 16th birthdays, pursuant to 42 U.S. §
675(8)(B)(i)(III). However, even if Federal reimbursement is
foreclosed for a limited number of youth, it would clearly be
cost-effective to make the KinGAP permanency option available to the
youth in order to expedite permanency for them and permit their exit
from foster care. In fact, Bryan Samuels, former Commissioner of the
Administration on Children, Youth and Families of the United States
Department of Health and Human Services, the Federal agency charged
with oversight over State KinGAP programs, cautioned that a state
policy restricting KinGAP to children over a certain age "may not
serve an individual child's best interests." For these reasons, the
instant measure would eliminate the age restriction.

Significantly, each of the modifications to the KinGAP statute
contained in this measure is recommended in the New York City
Administration for Children's Services' Foster Care Strategic
Blueprint Implementation Status Report, dated June, 2016, at page 4.
Over 300 foster children in New York City were able to exit foster
care via KinGAP in Fiscal Year 2016,2 an increase from 119 in Fiscal
Year 2013, but a significantly larger number will be able to do so if
this measure is enacted. Adding needed flexibility to the KinGAP
program will also make it more usable for counties outside New York
City, thus providing an important option to expedite permanency for
children in foster care throughout the State.

This measure, which would have no fiscal impact upon the State, shall
take effect 60 days after the U. S. Department of Health and Human
Services has approved a Title IV-E State Plan Amendment for federally
reimbursable expenditures.

 2017 LEGISLATIVE HISTORY :

Senate 4833 (Sen. Avella) (ordered to 3rd Rdg., Cal. 1550)
Assembly 7554 (M. of A. Hevesi) (advanced to 3rd Rdg., Cal. 468)

*The statute neither defines kinship nor requires states to do so, as
states are free to define prospective guardians, for example, as in
the instant measure, that is, including individuals with a positive
relationship with the child, such as god-parents or friends. See
"Sample State Legislation Needed to Implement the Federal Kinship
Guardianship Assistance Option Under Title IV-E of the Social Security
Act (Children's Defense Fund., Jan. 26, 2010).

**See Mayor's Management Report 187 (New York City Mayor's Office,
Sept., 2016)  available at:
http://wwwl.nyc.gov/assets/operations/downloads/pdf/mmr2016/2016_mmr.
pdf-.