When the novel coronavirus put New York on pause, the City’s Family Courts shut down most of their operations. As a result, hundreds of children who were ready to exit foster care—most of them to reunite with their parents—found themselves stranded in a system that has become very hard to leave.
 
Last week, the Family Court began to open up for matters that might move cases forward. But progress is slow and limited, and many families remain without access to the judges who can send their children home.
 
The disruption adds uncertainty to the lives of vulnerable kids, says Ron Richter, the CEO of JCCA, one of several nonprofit social service organizations under contract with the City to provide foster care.
 
“It should be a 100 percent priority to reunify families as quickly as possible and as safely as possible during this pandemic because it’s a fear-inducing time for everyone. Children want to be with their families; parents want to be with their children,” says Richter, who is also a former Family Court judge and was for two years the commissioner of the Administration for Children’s Services (ACS), which oversees the City’s foster care system.
 
Under normal circumstances, anywhere from 250 to 400 children are discharged from foster care in New York City each month, according to published ACS data. About 20 percent of those kids are adopted, while the majority—close to 60 percent—return to their families of origin. (The remaining 20 percent have what ACS calls “non-permanency” outcomes, such as aging out of the system or going AWOL.)
 
In order for children to end up in permanent homes, Family Court judges must make dozens of crucial decisions. They can order foster care agencies to make services available to parents, such as drug treatment and domestic violence counseling. They may decide that families can have overnight visits or spend weekends together. And they are the only parties who can approve an adoption or discharge kids and send them home for good.
 
In mid-March, most of those decisions came to a standstill. In order to protect staff and the public from the spreading coronavirus, the Family Court shut down its buildings. Judges were instructed to hold virtual hearings, by phone or video, on “emergency / essential” matters only.
 
Those matters did not include most of the activities that move children toward reunification with families. While judges continued to hear petitions from ACS to remove children from their homes, they stopped hearing motions from parents who want to contest those removals—known in the court as “1028” hearings. Even in cases where children were on the brink of leaving foster care when the virus came, progress largely stalled out.
 
In a city where 75,000 public school teachers were required to create online classrooms in a week, many people who work in the Family Court and foster care system question why the court’s capacity remains so small.
 
“I don’t understand why we can’t be having more virtual hearings. It doesn’t make sense to me when every other part of the [child welfare] system is operating in some fashion,” says Jess Dannhauser, the president of Graham Windham, another of New York City’s nonprofit foster care agencies. “We all have to be doing everything we can to make smart judgments, and to not let this completely grind reunifications to a halt.” 
 
In the two weeks from March 26th to April 9th, judges in New York City held hearings involving 37 children whom ACS petitioned to remove from their homes, according to the State Office of Court Administration (OCA). Parents contested the removals of 19 of those children, and judges decided in 10 cases that children should remain with their families.
 
Last week, judges began holding conferences on “non-essential” matters, according to OCA, but the agency did not say how many conferences have taken place, or whether they led to decisions that get kids closer to leaving foster care, such as approving weekend visits or placing children on trial discharges.
 
“Over the past month, we have been deliberately, methodically and carefully reimagining the nation’s busiest court system with 3.5 million annual filings,” wrote Lucian Chalfen, an OCA spokesperson, in an emailed statement. (That number includes filings in the criminal and civil court systems throughout the state, as well as the Family Court.)
 
“Clearly it has been a huge undertaking and while our technology people have done nothing short of miraculous moving the court system to a virtual model almost overnight, resources are not unlimited,” Chalfen wrote.
  
Meanwhile, foster care directors point out that sending kids home, where possible and safe, will reduce the burden on a foster care system that faces critical challenges as the coronavirus pandemic goes on.
 
Many foster parents live in the neighborhoods hardest hit by the virus, and many are older, with underlying health conditions. So far, foster care agencies say they’ve only had to move children out of foster homes in a small number of cases due to the pandemic, but they expect to see more strain as the economic and public health fallout grows. “Our foster parents have been incredible, but they have incredible needs,” says Jeremy Kohomban, the president of The Children’s Village, a foster care agency.
 
Over 700 of the city’s 7,700 foster children live in group homes, where it is often impossible to exercise social distancing practices, and where staff work in shifts and travel on public transportation.
 
Good Shepherd Services runs residential facilities for 46 girls in foster care. Like most residential programs, the agency is struggling to find masks and gloves for employees, and to keep enough staff on-site, says Denise Hinds, who directs Good Shepherd’s foster care and juvenile justice programs. “People are getting sick or they’re afraid to come in. Staff members have children of their own and elderly family members.”
 
Without full access to the Family Court, foster care agencies, ACS, and attorneys say they have been looking for creative ways to move cases forward in which families were already very close to reunification. In some cases, where judges had already approved overnight visits between parents and children, foster care agencies and ACS have the discretion to extend those visits so that children can be with their families until the Court becomes available.
 
The question, in those cases, is how to support families who were struggling before the pandemic began and for whom life has likely become harder, says Dannhauser of Graham Windham. “Can we put homemaking services in place? Can we wrap more mental health services around families? Can we make sure they’re getting food delivered? What can we do to take down the stress level so kids can do well, rather than saying it’s not the right time because parents are stressed out.”
 
(ACS and the nonprofits with which it holds contracts have used a similar strategy with young people in low-level juvenile justice group homes. In the last month, the number of youth in ACS’s “Close to Home” facilities has dropped from 108 to 76, with 25 young people home on extended passes, according to ACS.)
 
On April 3rd, ACS asked each of the City’s foster care agencies to identify cases in which all parties—including ACS, the attorneys representing parents, and those representing children—are likely to agree that the family can move forward toward reunification. In those cases, ACS will submit signed stipulations to judges, seeking approval without a hearing.
 
ACS expects the cases of 200 children to move forward through this kind of unanimous motion from attorneys. The agency has begun submitting stipulations to the Court but did not say whether any had yet resulted in a discharge from foster care.
 
“Children fare best when they maintain strong ties to their families,” ACS spokesperson Chanel Caraway wrote in an emailed statement. “Now more than ever, families are under an unusual amount of stress due to the COVID-19 public health crisis and we recognize that children separated from their families during the pandemic experience additional anxiety. Despite the limitations in court process due to the public health emergency, ACS is actively working to return youth from foster care and juvenile justice settings to their families and communities where that is safely possible.”
 
In order to reach consensus in particular cases, attorneys have worked together in ways that are unusual in the typically adversarial Family Court system, says Karen Freedman, the executive director of Lawyers for Children, which represents kids in Family Court hearings.
 
“There have been lots of compromises, flexibility, workarounds, and cooperation,” Freedman says. “I think everyone has taken really different attitude about what we can do working together.”
 
A process that requires consensus, however, doesn’t have much benefit for families in the many cases where ACS and parents disagree.
 
“The Family Court is the forum families and children rely on to exercise critical rights, including their Constitutional right to be with one another,” says Richter, the former judge. “When government seeks to intervene due to safety concerns, access to the Family Court means access to justice. Due process requires families to be heard and to have their side of the story given proper consideration.  Part of the reason family courts are so busy is because we take these rights so seriously.”
Abigail Kramer is a senior editor at the Center for New York City Affairs at The New School. She specializes in policy issues impacting low-income children, youth, and families in New York City—especially those in the foster care and juvenile justice systems.

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