Opinion
No. XX/10.
2010-06-16
In the Matter of L.P. Children under the age of Eighteen Alleged to be Neglected by J.P., Respondent.
Jessica Price, Esq., Special Assistant Corporation Counsel, Administration for Children's Services, Brooklyn. Megan Brown, Esq., Brooklyn Family Defense Project, Brooklyn.
Jessica Price, Esq., Special Assistant Corporation Counsel, Administration for Children's Services, Brooklyn. Megan Brown, Esq., Brooklyn Family Defense Project, Brooklyn.
Catherine Klein, Esq., Juvenile Rights Project, Legal Aid Society, Brooklyn, Attorney for the Child.
EMILY M. OLSHANSKY, J.
J.P. is the mother (hereinafter “respondent”) of the subject child, L.D., who is five year old. The child's father has not been identified.
On March 9, 2010, New York City Children's Services (hereinafter “NYCCS”) removed L. from the care of respondent. Later that day, NYCCS filed a neglect petition against her. The petition alleges that respondent neglected the child, L., by failing to provide adequate supervision and guardianship. In addition, the petition alleges medical neglect and bizarre behavior on the part of the mother. Specifically, the petition alleges that respondent held the subject child down in the bathtub to “get the leeches out” and do an “at home baptism” until respondent thought the child had “passed out.” She said that the child was “blocked up” and had “connections” with the non-respondent father as a result of the mother having had sex with him while she was pregnant with L. In addition, the petition alleges that although L. was non-verbal, physically very small and had not been immunized since she was two years old, respondent refused to take her to see a doctor or have her evaluated. The petition also alleges that respondent had an empty 40 ounce bottle of beer with her during the interview by NYCCS which she said she needs because she gets “drained” and has to “refuel.”
In addition, the petition alleges that respondent said that NYCCS believed a “bunch of evil lies” and “false reports” about her. She told the caseworker that “you're going to have to take out your gun and shoot me because you are not going to remove my daughter from me.” Because of her bizarre behavior during the removal, respondent was taken for an involuntary mental health evaluation at Kings County Hospital.
On March 9, 2010, NYCCS requested and the Court granted a remand of L.. The Court ordered a Family Court Act § 1017 exploration of all available kinship resources and granted respondent three agency supervised visits per week. The subject child was placed in a non-kinship foster home in the Bronx. The foster care agency is the Catholic Guardian Society. The foster mother is a special education teacher who works full-time. The foster home is a therapeutic foster boarding home.
Respondent appeared on March 12, 2010, issue was joined and counsel was assigned. She requested a hearing pursuant to Family Court Act § 1028. On March 18, 2010, respondent withdrew that request. Thereafter, respondent did not attend the court-ordered visits, saying that the child would be devastated and that it would be “too much on her heart” to see respondent for only two hours and not be able to go home with her.
On March 12 and 18, 2010, the subject child was medically evaluated at Bellevue Hospital. Hospital personnel described the child as having “marked language and physical delays consistent with chronic neglect.” She was also said to be malnourished (weight at less than the 5%), “thin, emaciated,” and “eating ravenously.” An old scar was observed on her upper left eyelid. She had an “L-shaped hypo-pigmented lesion” consistent with “scarification,” as well as “semi-lunar and linear marks on both shoulders consistent with old fingermarks/fingertips.”
On March 26, 2010, the agency conducted a post-placement services conference. After the conference, the agency documented the services that were authorized for the family. Among those services was “day care services,” which the “follow-up child safety conference service plan-post placement” indicated were “specified at the initial child safety conference.” According to that document, the subject child started to receive this service on March 23, 2010, when she was enrolled at the Henfield Parkchester Children's Center, a day-care center for children with special needs.
By order to show cause dated May 12, 2010, NYCCS moved to amend the petition to include the additional allegations about the child's medical condition that had been reported by Bellevue Hospital personnel. That motion was granted without objection and an amended petition was filed on May 24, 2010.
On May 19, 2010, the Attorney for the Child moved by order to show cause for an order pursuant to 18 NYCRR § 427.3 c(2)(iv), directing NYCCS to provide the foster mother with funds to pay for day-care. The Attorney for the Child asserted that the foster mother was providing the child with excellent care and that she was flourishing in that environment. In the affirmation submitted in support, the Attorney for the Child asserted that the foster mother had enrolled the child in day-care after discussing the issue with the caseworker. The caseworker told the foster mother that she should place the child in day-care and that she would be reimbursed. Consequently, on March 23, 2010, the foster mother enrolled the child at the Henfield Parkchester Children's Center, a day-care center for children with special needs. The Center is licensed by the New York City Bureau of Child Care. The foster mother works full-time and the child is not yet in school. The Attorney for the Child asserts that the subsequent refusal by NYCCS and the agency to pay for the cost of day-care “presents a significant obstacle to [the foster mother's] ability to care for L.” and that the foster mother will not be able to continue to do so without additional funds for day-care.
NYCCS opposes the motion, which is supported by respondent mother. NYCCS asserts that the court lacks the authority to order the Commissioner to pay for day-care but that even if the court had such authority it could only direct the payment of the “per day ACD voucher rate.” NYCCS also asserts that it is the Commissioner's policy not to pay for day-care for children older than four-and-one-half years of age because “they are supposed to be in school.” In addition, although NYCCS did not submit an affidavit from the caseworker, counsel asserts that “upon information and belief, no one from the agency or ACS told the foster mother that she would be reimbursed for any private day-care costs that she incurred (emphasis provided).” Notably, however, counsel does not deny that someone from the agency or ACS told the foster mother that she would, in fact, be reimbursed for the cost of day-care for children with special needs.
On June 10, 2010, the Attorney for the Child informed the Court and opposing counsel that the foster mother was not able to continue to pay for the cost of day-care and that, as a result, she was asking that the child be removed from her home. Thereafter, NYCCS informed the Court and opposing counsel that approval had just been obtained to pay for a day-care subsidy for the subject child prospectively but not retroactively.
Legal Analysis
While the Family Court is a court of limited jurisdiction (Kleila v. Kleila, 50 N.Y.2d 277, 282 [1980];King v. State Educ. Dept., 182 F3d 162, 163 [2d Cir1999] ), the Legislature has granted the Family Court jurisdiction “to determine issues pertaining to a child's welfare consistent with the comprehensive services plan associated with foster care placement” (Matter of Sullivan County Dept. of Social Servs. v. Richard C., 260 A.D.2d 680, 682 [3d Dept 1999], appeal dismissed93 N.Y.2d 958 [1999] ), and the Court may order a social services official, such as the Commissioner, to provide a child placed in his care with authorized services pursuant to Family Ct Act §§ 255, 1015–a and 18 NYCRR §§ 427.3(c)(1); 441.15.
1. Relevant Statutory Provisions
Family Court Act § 255 provides authority for the Family Court to order “any state, county, municipal and school district officer and employee to render such assistance and cooperation as shall be within his legal authority, as may be required, to further the objects of this act.” In addition, the statute provides authority for the Family Court to order any agency or other institution to render such information, assistance and cooperation as shall be within its legal authority concerning a child who is or shall be under its care, treatment, supervision or custody as may be required to further the objects of this act. The court is authorized to seek the cooperation of, and may use, within its authorized appropriation therefor, the services of all societies or organizations, public or private, having for their object the protection or aid of children or families, including family counseling services, to the end that the court may be assisted in every reasonable way to give the children and families within its jurisdiction such care, protection and assistance as will best enhance their welfare.
Similarly, Family Court Act § 1015–a provides authority for the Family Court to order a social services official to provide or arrange for the provision of services or assistance to the child and his or her family to facilitate the protection of the child, the rehabilitation of the family and, as appropriate, the discharge of the child from foster care. Such order shall not include the provision of any service or assistance to the child and his or her family which is not authorized or required to be made available pursuant to the comprehensive annual services program plan then in effect.
This section, added to the Family Court Act in 1987 (L 1987, ch 760), “authorizes the court to order social services officials to provide or arrange for needed services” (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 1015–a, at 453). The order may not include services or other assistance unless they are found in the agency's comprehensive annual services program plan (Brian L. v. Administration for Children's Services, 51 AD3d 488 [1st Dept 2008] [order directing the Commissioner to arrange for foster child's sex reassignment surgery was reversed since Family Court Act § 255 did not permit the court to order the Commissioner to arrange for the child to receive specific medical or surgical care, and while Family Court Act § 1015–a provides the court with discretion to order social services officials to provide services for children, the Family Court cannot order officials to provide services not authorized or required by the comprehensive annual services program plan then in effect, and this surgical procedure fell outside the scope of the plan] ).
2. Relevant State Regulations
State regulations authorize NYCCS to make special payments on behalf of a foster child for items, costs, or services that are necessary for the child but that are not included in the rate for board, care and clothing (18 NYCRR § 427.3[c][1] ). Significantly, such payments include day-care and baby-sitting services; special attire for proms, religious observances and graduation; school expenses such as books, activity fees, the cost of field trips, club dues, jewelry, school pictures, art supplies, and yearbooks; music, art, and dancing lessons, and the purchase or rental of items needed to take part in such activities; gifts for birthdays, holidays and other special occasions; extraordinary transportation and communication expenses, including expenses necessary for family visits, the cost of public transportation when necessary for school attendance, and extraordinary telephone costs for communication with birth parents and siblings; special furniture or equipment such as cribs, high chairs, car seats and window guards; special recreational or hobby expenditures, including travel expenses, lodging, tools, entry or use fees, uniforms and materials; compensation to foster parents for damage to and/or loss of personal property that is caused by a foster child; day camp or residential summer camp costs, including registration and transportation expenses, for a maximum of two weeks of camp; non-medical needs of a handicapped child, including special equipment or clothing which are necessary because of the child's handicap; and the cost of diapers for a child from birth to the child's fourth birthday (18 NYCRR § 427 .3[c][2] ). In addition, state regulations require that necessary psychiatric, psychological and other essential services to be made available to children in foster care (18 NYCRR § 441.15] ).
In addition, state regulations establish that services can only be provided to children where the need for the service has been established by NYCCS and where the applicant is included in a category of individuals specified in the comprehensive annual services program plan to be eligible (18 NYCRR § 404.4). The regulations also establish that children who have been certified as eligible for foster care maintenance or adoption assistance and who received such benefits are financially eligible for other services (18 NYCRR § 404.5 [a][1] ).
Further, state regulations require that the comprehensive annual services plan provide information on services provided directly or purchased by NYCCS which include, but are not limited to, day-care, foster care, residential placement services for adults, preventive services for children and for adults, child protective services, adoption services, employment services, housing improvement services, domestic violence services, unmarried parent services, family planning services, health-related services, home management services, homemaker services, housekeeper/chore services, educational services and transportation (18 NYCRR § 407.4[a-u] ).
3. Relevant Caselaw
Application of these criteria has led courts throughout the State to order social service officials to pay for necessary services for children in foster care ( Matter of Nicole JJ., 265 A.D.2d 29 [3d Dept 2000], lv denied95 N.Y.2d 757 [2000] [directing the payment of past and future day-care expenses]; Matter of Daniel M., 166 Misc.2d 135 [Fam Ct, New York County 1995], appeal dismissed244 A.D.2d 1011 [1st Dept 1995] [directing the payment of daily skilled nursing care]; Matter of Arlene L., 187 Misc.2d 356, 358 [Fam Ct, New York County 2001] [directing the payment of medical expenses both prospectively and retroactively]; In re Andrea D., 25 Misc.3d 503, 508 [Fam Ct, Monroe County 2009] [directing the payment of the cost of drivers' education classes and of obtaining a certified copy of the child's birth certificate] ).
In Matter of Nicole JJ. (265 A.D.2d 29,supra ), the Appellate Division, Third Department affirmed a Family Court order which directed the Commissioner of Social Services to reimburse the foster parent for day-care expenses they had previously incurred for a foster child and to provide funds for future day-care expenses. The Court concluded that the order was “compatible with Family Court Act § 255, which endows Family Court with sweeping powers.” The Court noted that the statute provided authority to the Family Court to order any county officer or employee “to render such assistance and cooperation as shall be within his [or her] legal authority, as may be required, to further the objects of this act.” The Court emphasized that the statute “was designed as a specific remedy to enable [Family Court] to cut through the bureaucracy, fragmentation and lack of coordination which so inhibits the provision of services for families and children before the court” ( Id., citations omitted ). The Court found that by ordering the Commissioner to cover day-care expenses, which, in turn, permitted the children to remain in their kinship foster home, the Family Court was facilitating the protection of the children as well as the overall rehabilitation of the family consistent with Social Services Law § 410 and Family Court Act § 1015–a (Matter of Nicole JJ., 265 A.D.2d at 32 33] ). The Court concluded that the frustration faced by a foster parent in gaining financial assistance to care for the children was “an appropriate invocation of the statute” ( Id.).
See also Mercado v. Blum, 76 A.D.2d 907 (2d Dept 1980). In that case, after petitioner had enrolled in a vocational training program and employed a baby-sitter for her children based on the agency's approval for in-home day-care, the agency refused to pay. The trial court dismissed the petition for review of that decision. On appeal, the Appellate Division, Second Department reversed and directed the agency to reimburse petitioner for the in-home child-care expenses. The Court held that the regulations did not prohibit payments for in-home day-care by an agency to petitioner who was enrolled in a vocational training program, although the regulations did limit the state's liability to reimburse the agency for such payments. Thus, the Court held that the agency was required to reimburse petitioner for the in-home daycare expenses since the agency had already approved the services ( see also Baez v. Blum, 91 A.D.2d 994 [2d Dept 1983]; In re Tameka M., 525 Pa 348, 580 A.2d 750 (Sup Ct 1990). In that case, the agency appealed from an order of the trial court which had been affirmed on appeal and which directed the agency to reimburse the foster parents for tuition paid to enroll a child in a preschool program at the Montessori school and to pay the cost of continuing education in that program. The Supreme Court affirmed, holding that the trial court had the authority to order the agency to fund the foster parents' placement of the child in a structured educational preschool, even though the Department of Social Services would not reimburse the agency for those costs and the school was not licensed by Department.
Similarly, in Matter of Daniel M. (166 Misc.2d 135, 140 supra ), the Family Court ordered NYCCS to pay for four hours of skilled nursing care per day so that a particular foster family could accept the child in their home. In that case, the foster parents could not provide foster care unless NYCCS also funded skilled nursing care. The court held that Family Court Act § 1015–a authorized an order directing such payment. The court rejected NYCCS's argument that the payment for skilled nursing care would require an “exception to policy,” since the policy in question was never presented to the court, and the court was never informed what criteria were employed in deciding whether to grant such an exception. The court stated, however, that even if such policy existed, it could not be employed to evade NYCCS's duty to place the child in a foster home, rather than an institutional setting, which was the least restrictive setting consistent with his needs. The court noted that payment for nursing care was not specifically mentioned in the comprehensive services plan. Nevertheless, it cited a recent report from the Commissioner emphasizing the need to find foster parents willing to care for special needs children and concluded that payment for nursing services was, therefore, entirely appropriate under the plan (Matter of Daniel M., 166 Misc.2d at 139 –141).
Likewise, in Matter of Arlene L. (187 Misc.2d 356, 358,supra ), the Family Court, pursuant to FCA § 1015–a, ordered NYCCS to pay for future medical expenses and reimburse the foster family for the cost of necessary medical care and services they had paid for a foster child who sustained injuries while playing with a firecracker. The court noted that the relevant statutes require that the Commissioner provide necessary medical and surgical care for children placed in foster care. Accordingly, the court concluded that it could compel NYCCS to provide the cost of medical care both prospectively and retroactively.
More recently, In re Andrea D. (25 Misc.3d 503, 508,supra ), the Family Court, citing Family Court Act §§ 255 and 1015–a, directed the Department of Social Services to provide the child with a certified copy of her birth certificate, assist her in registering for a driver's education class and pay for the class. The court found that the Department had the authority to assist the child in obtaining a driver's license ( Id., citing18 NYCRR § 427.3 [a] ). Although the Department's comprehensive annual services program plan did not specifically authorize or require that driver's education be provided for adolescents in foster care, the plan emphasized that self-sufficiency was one of four major goals, and the court held that driver's education was the first step to a driver's license and “a key component of self-sufficiency” ( Id.).
4. Service Plans
In the instant case, payment for day-care services for the subject child was specifically authorized by NYCCS at the initial child safety conference. The need for those services was documented in the follow-up child safety conference service plan—post placement form. That form, dated March 26, 2010, documents that “day-care services” were among the “service tasks specified at the initial child safety conference” and that the child had “started attending day-care for children with special needs on March 23, 2010.” The agency caseworker, the NYCCS caseworker and the NYCCS supervisor were all present at the March 26, 2010 follow-up child safety conference.
Payment for day-care services may also be authorized by the comprehensive annual services plan program currently in effect (hereinafter, “the Plan”). The Plan provides that families with open child protective cases qualify for child-care services on an optional basis “when child-care is needed to protect the child” ( Id., Appendix G–2, at p. 38; Appendix G–7, at p. 54).
Since day-care services were identified as needed at the initial child safety conference and at the follow-up child safety conference and since the Plan provides that families with open child protective cases qualify for child-care services if needed, NYCCS is required to provide for the cost of day-care ( see, Annual Plan Update to the Child and Family Services Plan, Local Department of Social Services for New York City—ACS, Dec. 15, 2009, Administrative Component, Appendix F, pp. 17 –24; see also18 NYCRR § 404.4).
It is unclear how such services could be “optional.” It is reasonable to assume that if child-care is “needed to protect the child,” then it is needed—not optional.
In addition, the Plan, not exactly a model of clarity, purports to list the specific services that are required, optional, or not authorized depending on the goal for the individual or the family. The goal relevant in the instant case is “preventing or remedying neglect, abuse, or exploitation of children and adults unable to protect their own interests, or preserving, rehabilitating, or reuniting families.” According to the Plan, the only services clearly required or authorized for that goal are child protective and child preventative services. The only services clearly not authorized for that goal are employment services. The other services listed in the Plan include child-care services, medical and health related services, educational services, foster care services, adoption services, transportation services, services for victims of domestic violence, information and referral services, unmarried parent services, home management, homemaking, housekeeping and home improvement services, as well as personal care services. Although some of these services are, in fact, required by state regulation, the notation provided in the Goal section for each service is “Y/N.” According to “Appendix F,” in order for a particular service to be authorized for a particular goal, “there must be at least one Y' in the goal section” associated with that service. Likewise, if there is an “N” in the goal section associated with a particular service, this signifies that the service is not allowable for that goal. The instructions explain that a “Y” signifies “yes” and an “N” signifies “no.” The instructions also explain the significance of a “pre-printed ‘Y’ “ or a “pre-printed ‘N’.” However, there is no explanation about the meaning of a “Y/N.”
In addition, the current and most recent comprehensive annual services plans emphasize a number of important objectives or goals for children that are relevant to the instant case. A number of courts have considered such goals in ordering payment for services for children in foster care although the specific service was not mentioned in the annual services plan ( see e.g., Matter of Daniel M., 166 Misc.2d at 139–141 [Family Court ordered payment for skilled nursing services although it was not specifically authorized in the comprehensive annual services plan, since it was consistent with the stated goals of allowing the child to be placed in the least restrictive setting and assisting foster parents willing to care for children with special needs]; In re Andrea D., 25 Misc.3d at 508 [Family Court ordered payment for driver's education classes although it was not specifically authorized by the annual services plan, since it was a key component of the Department's stated goal of self-sufficiency] ).
In this regard, the Plan provides that one of the goals for children is to “enhance the developmental and educational opportunities [for them] by ensuring [the] availability and accessibility of child-care services.” The Plan states that “subsidized child-care administered by Children's Services promotes family well-being by supporting child protective, foster care and preventive services, and serving families that need child-care for medical or social reasons” ( Id., Strategic Component, p. 29).
The goals listed in the prior comprehensive annual services plan (hereinafter, “the prior plan”) also support the order for child-care services in this case. The prior Plan indicates that one of the goals for children is to “enhance the[ir] developmental and educational opportunities ... by ensuring the availability and accessibility of child-care services.” The prior Plan emphasizes the need to “ensure access to quality, safe child-care and Head Start Services in the communities,” and to ensure that access to these programs is distributed equitably to all children regardless of age or neighborhood ( see, New York City, 2007 2009, Child and Family Services Plan, Annual Plan Update [October 15, 2008 December 31, 2009], Strategic Component at pp. 16, 31 and 63).
The current Plan emphasizes other important goals for children in foster care, including the need to ensure that, after they are removed from their birth families, they are “afforded stability, continuity and an environment that supports all aspects of their development.” With that objective in mind, the prior Plan indicated that new programs were being put in place by NYCCS “to enhance the stability of foster care placements through reinvestment and foster parent supports.”
The problems created for children who are repeatedly moved from one foster home to another have been documented elsewhere ( see The Long Road Home: The Study of Children Stranded in Foster Care, by Children's Rights, pp. 61–68 [Nov.2009], concluding that multiple placement moves negatively affect child well-being and the chances for permanency; see also Why Should the Child Welfare Field Focus on Minimizing Placement Change as Part of Permanency Planning for Children ? by Peter Pecora, Ph.D.; Ronald Kessler, Ph.D.; A. Chris Downs, Ph.D.; Diana English, Ph.D.; James White, Ph.D.; Steven Heeringa, Ph.D. [March 2007] ). In that article, the authors cite recent studies that found that placement stability is a key predictor of success in foster care and they review current studies documenting the importance of ensuring that children in foster care experience as few moves as possible. They conclude that minimizing placement change will minimize child pain and trauma; lessen child attachment, behavior and mental health disorders; decrease school changes and increase academic achievement; maximize continuity in services, decrease foster parent stress, lower program costs and increase the likelihood that a child will establish an enduring positive relationship with a caring adult.
Payment for necessary day-care services for the child in the instant case was, therefore, authorized at the initial child safety conference and the post-placement service conference. It is also consistent with the current Plan and the goals and objectives for foster children articulated in the two most recent annual Plans.
The Court rejects NYCCS's assertion that agency policy prohibits the payment of day-care expenses for children older than four-and-one half-years of age. The asserted policy was never presented to the Court and the regulations reveal no such age limitation. To the contrary, the applicable regulations establish that children who qualify for child-care generally remain eligible until the age of 13. The regulations also establish that eligible children who have special needs or are under court supervision continue to qualify until the age of 18, unless they are full-time students and then they are eligible until the age of 19.
.18 NYCRR § 415.1(b) defines the term “eligible child” for purposes of child care services. That section provides that an “eligible child” is a child who resides with a caretaker who meets the eligibility requirements for the particular type of child care services and who: (1) is under 13 years of age. or (2) is under 18 years of age; and (i) is a child with special needs as defined in subdivision (c) of this section; or (ii) is under court supervision; or (3) is under 19 years of age, is a full-time student in a secondary school, or in an equivalent level of vocational or technical training, and: (i) is a child with special needs as defined in subdivision (c) of this section; or (ii) is under court supervision. 18 NYCRR § 415.1(c) defines a “child with special needs” as a child who is incapable of caring for herself and who has been diagnosed as having one or more of the following conditions to such a degree that it adversely affects the child's ability to function normally: visual impairment; deafness or other hearing impairment; orthopedic impairment; emotional disturbance; mental retardation; learning disability; speech impairment; health impairment; autism; or multiple handicaps. Any such diagnosis must be made by a physician, licensed or certified psychologist or other professional with the appropriate credentials to make such a diagnosis.
Moreover, even if there were such a policy, it could not be employed to evade NYCCS's duty to provide day-care services where, as here, the need for the services was established by NYCCS at the initial child safety conference and reiterated and documented by NYCCS and the agency at the March 26, 2010 post-placement service conference. In any event, the asserted justification for the policy, e.g., that a child older than four-and-one half-years of age is “supposed to be in school,” has little application in the instant case where the child is non-verbal, not in school and has not even been evaluated for educational purposes.
State regulations require NYCCS to take all necessary steps to ensure that children in foster care “receive an education appropriate to their needs” (18 NYCRR § 441.13[a] )
The Court also rejects any suggestion that the foster mother should be personally responsible for the cost to date of the child's day-care. State regulations establish that day-care and babysitting services are not included in the rate for board, care and clothing (18 NYCRR § 427.3.[c] ). The notion that the foster mother, apparently a person with limited financial resources, volunteered at the outset to pay the cost of specialized day-care services for a foster child she barely knew is rejected as patently absurd. Although counsel for NYCCS insists that no promises were made to the foster mother about reimbursement for “private day-care,” counsel does not deny that the foster mother was promised reimbursement for the cost of day-care for children with special needs.
The Court also rejects NYCCS's assertion that the current Plan and the regulations only require the payment of day-care expenses for foster children under circumstances like these “when the funds are available [and here] these funds are not available.” As counsel for NYCCS acknowledges, the agency has now “obtained approval for a day-care subsidy for the subject child prospectively.” If the funds were, in fact, “not available” then presumably the subsidy could not have been approved.
Further, the Court rejects NYCCS's claim that the foster mother “does not fit the eligibility requirements.” NYCCS fails to cite any statute, regulation or case law to supports this conclusion and many of the regulations define eligibility for a foster child in terms of the child and not the foster parent ( see18 NYCRR §§ 404.4; 404.5[a][1] ). In any event, if the foster mother, in fact, “did not fit the eligibility requirements” then it is unclear how or why the subsidy was finally approved.
Finally, by ordering NYCCS to pay the cost of the child's day-care expenses, the Court will help ensure that she can remain in the nurturing environment of the current foster home where she has rapidly progressed and developed. In so doing, the Court can help prevent the possibility that the child will be subject to multiple placements, thereby facilitating her stability and protection and supporting the overall rehabilitation of the family (Matter of Nicole JJ., 265 A.D.2d at 32 33] ). The Court finds that this result would be in the child's the best interests and would be consistent with applicable statute, case law, regulation and the Plans.
Accordingly, the motion by the Attorney for the Child is granted, and NYCCS is ordered to reimburse the foster mother for the cost of day-care services at the rate ordinarily paid on behalf of children with special needs ( see18 NYCRR § 415.1[b] ) retroactively to March 23, 2010, if the initial child safety conference was conducted prior to that date. If the initial child safety conference was not conducted prior to March 26, 2010, then NYCCS is ordered to reimburse the foster mother for the cost of day-care services at the rate ordinarily paid on behalf of children with special needs, retroactively to March 26, 2010.
For each of the forgoing reasons, it is
ORDERED, that NYCCS reimburse the foster mother for expenditures made to date toward the child's day-care at the rate ordinarily paid on behalf of children with special needs upon the foster mother's submission of proof or other documentation of those expenses to NYCCS; and it is further
ORDERED, that NYCCS continue to reimburse the foster mother for the future cost of the child's day-care at the rate ordinarily paid on behalf of children with special needs until the child can be enrolled in school ( see18 NYCRR § 441.13) or another day-care center qualified to deal with the child's special needs, that is also willing to accept the child and the rate paid by NYCCS; and it is further
ORDERED, that NYCCS provide the foster parent with a referral to an appropriate school or a day-care center qualified to deal with her special needs, that is also willing to accept the child and the rate paid by NYCCS, within reasonable proximity to the foster home; and it is further
ORDERED, that NYCCS provide the foster parent with assistance in ensuring that the child receive timely and comprehensive psychological and educational evaluations.