lawsuit challenges New York’s system of disqualifying potential foster parents because
of their criminal records.

November 10, 2021

By Andy Newman

When a Queens couple applied to be foster parents to their 2-year-old great-grandson,
they figured it was a simple formality.

They had been raising him in their apartment since he was removed from the care of his
mentally ill mother when he was a few months old. “We’re the only parents that he
knows,” the boy’s great-grandmother said. They had brought up five children of their
own and adopted two others.

They were caring for the boy, who has severe autism, around the clock, on a combined
income of $1,200 a month in disability payments, and the foster parent designation
would have allowed them access to monthly payments and services to do even more for

But New York City officials told them they could not be certified as foster parents
because the great-grandfather had once pleaded guilty to attempted second-degree
burglary — in 1995.

After initially threatening to remove the boy from the couple’s care, officials with the
city’s child welfare agency, the Administration for Children’s Services, allowed him to
remain with them as if they were his foster parents — but with none of the support that
comes with the certification.

Such situations are everyday occurrences in New York, according to a lawsuit filed in
federal court on Wednesday by the Legal Aid Society. The suit argues that people who
apply to be foster parents to relatives are routinely and unfairly rejected because of long-
ago convictions — or, sometimes, only charges — under a complex set of state, federal
and city rules.

Advocates say the policies particularly harm Black and Latino children, who make up
more than 80 percent of those in foster care and whose adult relatives are more likely to
have encountered the criminal justice or child-welfare investigation systems themselves.

The policies, the suit says, also run counter to the city’s considerable progress toward its
goal of placing more children with family members, an arrangement that research shows
is often best for the children.

As a result of the disqualifications, some children are sent to live with strangers or in
group homes.

The same relatives the system has rejected — only without the payments and services,
including Medicaid, that normally come with being a foster parent in New York and that
many poor foster families need desperately. The bureaucratic workaround, called direct
placement, is supposed to be a temporary measure, but Legal Aid says it can drag on for

For the Queens couple, identified in court papers as David and Evelyn R., it has meant a
monthly struggle to buy basic supplies, like special diapers that cost $63 a carton, for
their great-grandson, identified in the suit as B.B., a fast-growing boy who is now almost
4 and spends most of his waking hours yelling and thrashing.

Evelyn and David cannot receive monthly payments and services that normally go to
foster parents and would help them care for the child, who is severely autistic.

The effect of these direct placements is that the system pulls away a safety net from
some of its most vulnerable children.

“The entire process is one that puts children needlessly at risk,” Lisa Freeman, the
director of law reform in Legal Aid’s juvenile rights practice, said in an interview.
Another Legal Aid lawyer, Kate Wood, said that families in the system faced a painful
decision: “Do I give this child up? Or do I keep him without any of the supports?”
City and state officials did not immediately respond to requests for comment on the suit.
Some potential caregivers are rejected because federal law requires states to do
background checks and bar people convicted of serious violent crimes from becoming
foster parents or adopting. But many states, including New York, maintain a list of
discretionary offenses that can be used as a basis for denying a foster care application.
Legal Aid says that though the city is supposed to consider each of those cases
individually, it routinely denies them without consideration.

A 59-year-old woman identified by Legal Aid only as Michelle applied in 2019 to foster
her 14-year-old granddaughter, D., who had a history of running away and was a sexual
abuse survivor.

Over the past three decades, Michelle has earned a master’s in community health
education and worked at a nonprofit that helps New Yorkers who have chronic illnesses get medical and housing help. But before that, she was addicted to crack and had been arrested on loitering and prostitution charges.

The child welfare agency rejected her application. Michelle said that D. was being
punished for something her grandmother had done a lifetime ago. “When you deny me,” she said, “you deny the child — the person who’s in need of this support.”

The rejections continue even as the city has made strides both in reducing the number of
children in foster care and in placing those who do go into foster care with relatives.
The foster care population in New York City has shrunk from about 50,000 children in
the early 1990s to fewer than 8,000 today. And the percentage of children entering
foster care because of abuse or neglect who are placed with relatives has nearly doubled
since 2016, to 51 percent, which A.C.S. called “a massive success” in an email last week.
According to research cited by the city, foster children placed with relatives do better in
school, are happier and change residences less often than children who are placed with

Still, every year, about 3,000 children in the city are removed from their homes.
According to Legal Aid, hundreds of their relatives have been denied certification as
foster care parents in recent years, making them ineligible for payments ranging from
about $700 to more than $2,000 a month for children with special needs.

The conflict between A.C.S.’s mission to keep children with relatives and its rejection of
these potential foster parents underscores the pressures the agency faces as it tries to
keep children safe.

In New York, the rules automatically disqualify potential foster parents if they have ever
been convicted of any of nearly 300 crimes. The list includes obvious disqualifiers like
rape, murder and child abuse, but also offenses like the one David R. pleaded guilty to,
attempted second-degree burglary — a broadly worded charge that covers being in a
dwelling with the intent to commit a crime. (David said his case stemmed from the
police’s attempt to arrest him on a marijuana charge.)

New York’s rules also grant the authorities the discretion to disqualify a prospective
foster family if anyone in the household over 18 has ever been charged with a crime or
has been the subject of a child maltreatment report for which there was “some credible

Legal Aid says A.C.S. sometimes disqualifies prospective foster parents who had child-
neglect cases that were closed as “unfounded.” One such woman, identified in the suit as
Mrs. G., raised dozens of foster children over 30 years but was barred from becoming a
foster parent to her 3-year-old granddaughter.

The suit, filed in federal court in Brooklyn, argues that state and city regulations and the
ways they are wielded violate children’s constitutional rights. It seeks class-action
status, the overturning of the laws and an injunction requiring child-welfare authorities
to conduct a “meaningful and individualized evaluation” before rejecting relatives as
potential foster parents.

One child, identified by Legal Aid as T.H., bounced between 14 different foster homes in
three years before moving to his aunt and uncle’s home in Brooklyn when he was 8.
The city certified the aunt and uncle, Taniqua and Maurice, as foster parents, only to
withdraw the approval a year later because Maurice had been convicted in 1992 of
robbery — a record he disclosed at the start of the application process.
The family was notified that T.H. would be removed. “I felt mad and sad,” said T.H.,
who is 11 now.

A court fight ensued, and Maurice and Taniqua ended up with custody of the child, but
no aid.

“Basically, they’re saying ‘Well, you can have him but we’re not going to fund him,’”
Taniqua said. “I don’t think that’s fair.”

Credit…Anna Watts for The New York Times