IN RE: a Proceeding Pursuant to Family Court Act Article 10 (2024)

WHEREAS, on November 7, 2024, the Saratoga County Department of Social Services having filed a Notice of Motion (Motion #2) seeking Approval of a Placement in Qualified Residential Treatment Program (QRTP); and

WHEREAS, the Court having issued a Corrective Order to Show Cause on November 13, 2024, and thereafter having scheduled a hearing on December 3, 2024; and

WHEREAS, on December 3, 2024, Petitioner Saratoga County Department of Social Services having appeared through counsel, Margaret McGannon, Esq., with Caseworker Vincent Castaldo; and C. G.¹ having appeared with counsel, G. Thomas Dale, Esq.; and Interested Party J. Q. having appeared through counsel, Beth-el Thomas, Esq.; and C.L. having appeared with Attorney for the Child, Daryl Cutler, Esq.; and

WHEREAS, the Court having considered the following information, testimony and evidence:

1. Notice of Motion, dated November 6, 2024;

2. Attorney Affirmation of Margaret McGannon, Esq., dated November 6, 2024;

3. Affidavit of Vincent Castaldo, dated November 6, 2024;

4. Attorney Affirmation in Opposition of Daryl Cutler, Esq., dated November 14, 2024;

5. Corrective Order to Show Cause issued November 14, 2024;

6. Letter Order, dated November 15, 2024;

7. Court's Exhibit 1: Qualified Individual Assessment and Summary Report, dated November 27, 2024;

8. Court's Exhibit 2: Social Services Law § 409-h;

9. Court's Exhibit 3: Social Services Law § 393;

10. Attorney for Child Exhibit 1: Northern Rivers Policies;

11. Testimony of Caseworker Vincent Castaldo;

12. Testimony of Senior Caseworker Tara Fox;

13. Testimony of Caseworker Chris Cittadino;

14. Testimony of C.L.; and

15. Testimony C.G.

NOW THEREFORE, after due consideration and upon review of the written submissions of the parties, and testimony and evidence submitted at the hearing on December 3, 2024; the Court finds as follows:

Background

This proceeding was commenced by the filing of two Neglect Petitions on May 29, 2024, alleging that C.G. and J.Q. neglected the subject child, C.L. The Petitioning party is an Authorized Agency — Saratoga County Department of Social Services (hereinafter "the Department" or "SCDSS"). C.G. is C.L.'s mother. J.Q. is not biologically related to C.L. and is/was a "person legally responsible" for his care.

On June 6, 2024, the Court issued two Temporary Orders of Protection for the benefit of C.L. — restricting C.G. to having only supervised contact with C.L. At the time of the Petitions being filed, C.L. was residing at a youth shelter. On June 14, 2024, the Court issued an Order directing C.L.'s removal and thereafter placed C.L. with his maternal grandmother — W.G. pursuant to FCA § 1017. From June 14, 2024, through June 24, C.L. was in direct placement with his maternal grandmother.

On June 24, 2024, the Department filed a motion requesting that C.L.'s placement be modified to a foster care placement. The Court issued an Order to Show Cause on June 24, 2024, temporarily modifying the placement. On June 24, 2024, C.L. was placed in the custody of the Commissioner of the Saratoga County Department of Social Services (foster care).

On October 29, 2024, C.G. consented to a finding of Neglect and the Court (on consent) issued an Order of Disposition continuing C.L.'s placement in foster care. On November 8, 2024, J.Q. consented to a finding of Neglect and the Court (on consent) issued an Order of Protection barring J.Q. from having contact with C. through C.'s eighteenth birthday.

Placement at NEPCS

On or about mid-October 2024, the foster home where C.L. was placed submitted a "10-day notice" to the Department, notifying the Department that the child had to be removed from their foster boarding home. The foster parents agreed to keep C.L. for an additional (approximate) week beyond their 10-day notice. The Department was unable to locate another foster boarding home or other relative resource. As a result of the lack of available foster homes, the Department decided for C.L. to be placed at Northeast Parent and Child Society (hereinafter "NEPCS") — a residential program located in Schenectady, New York. NEPCS is a Qualified Residential Treatment Program (hereinafter "QRTP") subject to the requirements of Family Court Act § 1055-c, Social Services Law § 409-h, and Social Services Law 393. C.L. was placed at NEPCS on November 1, 2024.

No evidence was submitted in connection with the motion that notifications were provided to any party as required by FCA § 1017(5); FCA § 1055(j). Prior to November 1, 2024, no arrangements were made for a Qualified Individual to assess the placement.

The Department filed a Motion to approve the QRTP at NEPCS on November 6, 2024. The Attorney Affirmation in support of the motion indicates that "[a] Qualified Individual has been contacted, and the requisite thirty (30) day assessment has been initiated.² "

A Court appearance was held on November 14, 2024, where representatives of the Department, counsel for all parties and the Attorney for the Child were present. At that appearance, the Court accepted a FCA § 1051(a) consent to a finding of Neglect by J.Q., and issued an Order of Disposition on consent, consisting of an Order of Protection barring J.Q. from having contact with C.L., through C.L.'s eighteenth birthday.

At the appearance and conference on November 14, 2024 — the Court conducted a conference relative to the representation that C.L. had been placed in a QRTP. The Attorney for the Child expressed concern about the placement at that conference. The Court and parties were notified that the "QI Assessment" had been initiated — and was being done by Together for Youth (formerly Berkshire Farm Center for Youth). Additional discussion was had concerning expanding the search for additional foster homes, steps required to get C. back into his home school district (Ballston Spa CSD), providing C. with his cellular phone, and expanding visitation with C.G.

Notably — the Department opposed modifying the contact between C.L. and his mother to unsupervised visitation, citing a general reluctance to move the visits to unsupervised. The Court in considering the concerns raised, in conjunction with the age of the child — over the general objection of the Department — provided a bench Order modifying the visits to unsupervised and requiring that the visits occur in a public place (or a specified location for the upcoming Thanksgiving Holiday) and directed the Department to get C.L. his cellular phone  ³ .

A meeting was held with the Qualified Individual to discuss the assessment on November 15, 2024. The Attorney for the Child was not notified of the meeting.⁴ The Department was provided with the verbal result of the Qualified Assessment on or about November 15, 2024. The Qualified Assessment Summary (Court's Exhibit 1) indicates that the 30-Day Assessment decision was made on November 15, 2024. The Department did not notify the Attorney for the Child, or any other counsel, of the decision at that time.

The Qualified Assessment report was provided to the Department on or about November 27, 2024. There was insufficient evidence or testimony to determine why there was a twelve-day delay in providing the report to the Department aside from the evaluator indicating to the assigned Caseworker that the report needed supervisory review before being finalized.

The Qualified Assessment Summary and Report was filed with the Court on December 2, 2024 at 1:45P.M.; approximately twenty hours before the hearing was scheduled to commence. No credible explanation was provided to the Court as to why the report was filed five days after receipt. The Department did not provide the Qualified Assessment or Summary Report to the Attorney for the Child or counsel for Respondent C.G.

Notice of Placement

A local department of social services is obligated to report any anticipated placement or change in placement of a child into a QRTP to the Court and the attorneys for the child, forthwith, but not later than one business day following either the decision to place the child in a QRTP (including a change in QRTP placements) or the actual date of placement, whichever is sooner. (emphasis added). See FCA § 1017(5); FCA § 1055(j).

According to the testimony provided by Department staff — the notice from C.L.'s prior foster parents requesting his removal was received sometime in mid-October 2024; and the placement of C.L. in a QRTP was at that point being considered — and notification should have been sent. Even after the initial placement of C.L. in NEPCS, no notices were provided. The text of the statute is unambiguous on the point that notification must be made within one (1) business day of either the consideration of a placement in a QRTP or the actual placement — whichever is sooner. No notices were ever provided to the Court as required by the applicable statute. It is unknown if any notice was provided to the Attorney for the Child, or C.L.'s mother (or her counsel). Notification of the placement was inferred when the Department filed a motion seeking approval of the QRTP placement on November 7, 2024 — 6 days after the actual placement and weeks after the placement was initially being considered. There was no reason or justification provided by the Department for the abject lack of notice as required by statute.

Family and Permanency Team

When conducting a Qualified Assessment, the Qualified Individual conducting the assessment shall consult with the "Family and Permanency Team" Social Services Law § 409-h(1)b); 42 U.S.C. § 675a — including all appropriate biological family members, relatives, and fictive kin of the child, as well as appropriate professionals who are a resource — including, but not limited to, the attorney for the child, attorney for the parents, teachers, medical or mental health providers or clergy. Notably, where the child has attained the age of fourteen the case plan shall be developed in consultation with the child, with up to two members of the case planning team who are chosen by the child who are not a foster parent or caseworker for the child. (emphasis added) See 42 U.S.C. § 675(5)(C)(iv).

According to the Qualified Assessment Report, the following information was provided under the section heading: "Indicate the date of the child and family permanency team meeting and who contributed to the assessment and report" and provides a list of attending: (1) C.G. — Mother; (2) Vincent Castaldo — County Worker; (3) Lauren Mayben — Clinician — Northern Rivers; (4) Tara Columbus — QI Clinician — Together for Youth.

It is noted that the evidence and testimony from the Department staff indicated that the child and family permanency team meeting was — through email exchanges — being scheduled during the week of November 17th. When the meeting was scheduled, no notification was provided to the Attorney for the Child; and to the contrary — the parties, including C.L. and his counsel were present in Court on this case on November 14, 2024 — no mention was made regarding the child and family permanency team meeting scheduled to occur the following day. In fact, the Attorney for the Child was never notified of the meeting  ⁵ — and Caseworker Castaldo testified that he attempted to notify the Attorney for the Child with email address that didn't work — citing he" sent it to the email we had on file." Caseworker Castaldo could not remember when he attempted to send the email to the Attorney for the Child. Further, there is no evidence or testimony before the Court that the child — who is fourteen years old — was notified of his right to participate or offered the opportunity to suggest two additional participants.

It is of significant note to the Court that the Department did not call the Qualified Individual (Tara Columbus) to testify.

Intermediate Time Frames

Family Court Rule § 205.18 provides intermediate time frames to support the Court's ability to meet the timeframes established by federal law to review QRTP placements. These intermediate time frames include that a motion requesting a hearing to approve the placement must be made no later than five days after the entry of the child into the QRTP.

As previously noted, a Qualified Assessment must be completed within thirty (30) days of the initial placement in the QRTP. Pursuant to Family Court Rule 205.18, upon receipt of the Assessment Report, the Commissioner (or his designee) shall no later than five (5) days after the completion of the report (and in no event less than ten (10) days prior to any hearing) provide the report to the counsel, parties and the Attorney for the Child.

In this instance, the Department was made aware of the recommendations in the report on November 15, 2024. No notice was provided to the parties or counsel regarding the recommendation. The written report notes a "date signed" of November 27, 2024 — which is a federal holiday (Thanksgiving). The report was not filed with the Court until the following week — on the afternoon of December 2, 2024 (the day before the hearing was scheduled to commence). A copy of the report was not sent to counsel, parties or the Attorney for the Child.

Qualified Assessment Report

A Qualified Assessment of a QRTP placement must be completed by a Qualified Individual no later than thirty days after the placement of the child in a QRTP. There is no prohibition from commencing the assessment before the actual placement of the child in a QRTP (SSL § 409-h(1)(a) stating "[p]rior to a child's placement in a qualified residential treatment program . . . .)

In this instance, the Qualified Assessment was commenced on November 1, 2024, the date of the initial placement of C.L. at NEPCS.

Assessment Report Findings

Tara Columbus was identified as the Qualified Individual performing the assessment of the QRTP placement for C.L. No information or testimony was provided to the Court as to the qualifications of the Qualified Individual; however, no party interposed a challenge or objection to the evaluator chosen.

The QI Assessment provided that "due to the CANS-NY rating and the lack of current unsafe behavior, this Clinician recommends community placement in a therapeutic foster home." The evaluation also provided "Community placement in a therapeutic foster home is the most effective and appropriate level of care for C.L. He does not demonstrate the unsafe behavior that warrants QRTP placement."

Department Staff Testimony

The Department proffered two witnesses: Caseworker Vincent Castaldo and Caseworker Chris Cittadino. Caseworker Castaldo testified that he disagreed with the Qualified Assessment insofar as from the Department's perspective, there is no alternative to NEPCS for C.L. Chris Cittadino is the home finder for the Department and tasked with matching placements with foster homes. Caseworker Cittadino testified to efforts made to locate foster homes — including contacting other county home finders and multiple contract agencies, efforts which ultimately were unsuccessful  ⁶ .

Underlying Neglect and Current Circumstances of C.G.

The underlying Neglect proceedings were initiated as a result of multiple concerns including substance abuse by the parent; domestic violence; and unstable housing.

As to the concerns regarding substance abuse, testimony was elicited in the context of the hearing as to the current circumstances of Respondent C.G. The credible testimony adduced indicated that C.G. had maintained sobriety for multiple months and relapsed in early October 2024. Following the relapse, C.G. immediately entered — and completed — inpatient substance abuse treatment. According to the credible testimony adduced, C.G. has tested negative for illicit substances since October 1, 2024, and by all accounts has maintained sobriety since that date.

As to the concern of domestic violence, testimony was elicited that J.Q. was currently incarcerated and an Order of Protection had been issued directing him to stay away from C.L. Although C.G. had visited J.Q. while he was incarcerated, there is no evidence to suggest that J.Q. has been in the presence of C.L. since May 2024.

As to the concern of unstable housing, C.G. testified that she is currently residing in the home of an acquaintance and does not have current housing that would be appropriate for her and C.L. Testimony was elicited that the Department provides emergency housing and pending an eligibility determination, could provide C.G. with housing.

Discussion

The federal Family First Prevention Services Act was enacted on February 9, 2018 and reformed the federal financing of placements to prioritize family based foster care, preferably with kin, over residential foster care.⁷ The New York Family First Prevention Services Act (FFPSA) took effect on September 29, 2021. The FFPSA provides a framework for when there is consideration of placing a child in a QRTP, and the law requires a Qualified Individual to assess the need for a QRTP with an age-appropriate, evidence based validated, functional assessment, conducted in conjunction with the permanency team within thirty days of placement.

Social Services Law § 393, Social Services Law § 409-h and Family Court Rule § 205.18 promulgate the framework in which Qualified Residential Treatment Placements are judicially reviewed.

Here, despite the lack of appropriate notifications to the Court or counsel as required by statute, a Qualified Assessment of C.L. was conducted. Thereafter, a Summary Report and Qualified Assessment was generated. It is unknown based on the record before this Court as to whether or not the Qualified Individual followed the statutory requirements to consult with the child's "permanency team" and to allow the child to participate in the discussions regarding assessment of the placement. The summary and Qualified Assessment Report were received by the Department on November 25, 2024 and withheld for an additional six days — until the eve of the hearing at which placement was contested. The QI provided an assessment that recommended C.L. be placed in a lower level of care than NEPCS — specifically that a therapeutic foster home would be an appropriate placement for C.L. given his needs.

Additionally, the Court credits the testimony of C.L. — provided in open court and under oath — that his placement at NEPCS is unduly restrictive and not consistent with his best interests. To be sure, C.L. was initially placed as a result of being neglected by his mother. He thereafter was placed for a short duration with his grandmother and then through a foster home for approximately three months. He was then placed by the Department in a residential group home — where he was initially required to change schools and placed under a regiment that is remarkably restrictive and designed to provide structure for children with high level needs.

The Department maintains that the motion to approve the QRTP placement should be granted, citing to a lack of foster homes available to provide care for C.L. Stated otherwise; the Department is advocating for C.L. to be placed in a QRTP because — from their perspective - there is nowhere else for him to go  ⁸ .

The Department in support of their motion has asked this Court to find that the lack of foster homes to be appropriate criteria under Social Services Law § 393(2)(iii)(A)(1) as "circumstances exist that necessitate the continued placement of the child in a [QRTP]." The Court declines to adopt the position of the Department in this regard. Even if the Court, arguendo, were to agree with the Department — under SSL § 393(2)(iii)(A), the Court would be required to make a finding that the continued placement in a QRTP is consistent with the child's best interest — which on the record before this Court, it is clearly not. To the contrary, C.L.'s best interests would not be promoted by a continued placement at NECPS or any other QRTP. It is noted that Social Services Law § 409-h(1)(c) specifically provides that "[a] shortage of foster family homes shall not constitute circumstances warranting a determination that the needs of the child cannot be met in a foster home."

Accordingly, after due consideration of the evidence and testimony adduced at the hearing on December 3, 2024, and after a review of the papers submitted in connection with the motion to approve the placement, the Court declines to approve the placement, and as such it is

ORDERED and ADJUDGED, that the needs of the child can be met through placement in a foster family home for the following reasons: due to the CANS-NY low rating and lack of current unsafe behavior, community placement in a foster home is suitable to meet the needs of the subject child. C.L. does not demonstrate unsafe behavior warranting placement in a QRTP. A family home setting is appropriate and the least restrictive environment and level of placement consistent with the short-term and long-term goals for the child, as specified in his permanency plan.

This determination is based upon:

• Court's Exhibit 1: Summary Report and Qualified Assessment;

• Testimony of Caseworker Vincent Castaldo;

• Testimony of Caseworker Chris Cittadino;

• Testimony of C.L.; and

• AFC Exhibit 1.

ORDERED and ADJUDGED, that placement of the child in a Qualified Residential Treatment Program (QRTP) does not provide the most effective and appropriate level of care for the child in the least restrictive environment; and it is further

ORDERED and ADJUDGED, that placement in Northern Rivers, Inc. (Northeast Parent and Child Society) is not consistent with the short-term and long-term goals for the child as specified in the child's permanency plan; and it is further

NOW THEREFORE, after examination and inquiry into the facts and circumstances and after hearing the proof and testimony offered in relation thereto, it is therefore

ORDERED and ADJUDGED, that the Motion (Motion #2) requesting approval of a placement in a Qualified Residential Treatment Program (QRTP) is DENIED, and it is further

ORDERED and ADJUDGED, that any relief requested through Motion (Motion #2) not specifically addressed herein has been considered and is hereby DENIED, and it is further

ORDERED and ADJUDGED, that upon good cause shown, pursuant to Family Court Act § 1061, that the Order of Disposition, issued on October 29, 2024, and modified by Letter Order issued on November 15, 2024, is modified such that the above-named child shall be released to the following parent: C.G., on or before December 3, 2024, subject to supervision by the Department of Social Services; and it is further

ORDERED and ADJUDGED, that the Court is issuing a Modified Order of Disposition of even date, relative to provisions applicable to the return of C. to his mother's care, and supervision of Respondent C.G. by the Department of Social Services.

Next Appearance, Service and Right to Appeal

ORDERED, that the above-captioned proceedings are scheduled for the commencement of a Status Conference on January 14, 2025 at 11:00A.M., before Part III of the Saratoga County Family Court, 35 W. High Street, Ballston Spa, NY 12020; and it is further

ORDERED, that the Clerk's Office is directed to provide service of a copy of this Order upon counsel for all parties by electronic mail, and upon the Department of Social Services by reception bin pickup, same to be considered good and sufficient service pursuant to FCA § 1113; and it is further

ORDERED, all parties shall take notice that: pursuant to section 1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in court, thirty-five days from the mailing of the order to the appellant by the clerk of the court, or thirty days after service by a party or Attorney for the Child upon the appellant, whichever is earliest.

FOOTNOTES

1.   The parties are provided with anonymous letter initials to maintain their confidentiality.

2.   Attorney Affirmation of Margaret McGannon, Esq. at Paragraph 6.

3.   Letter Order dated November 15, 2024.

4.   Testimony and evidence was elicited that this meeting was set up approximately a week before; and despite knowing about the meeting at the time of the Court conference on November 14, 2024 — no representative of the Department notified the Attorney for the Child (or any other party) that the meeting would be held the next day.

5.   The Qualified Assessment Report indicates that the Attorney for the Child was interviewed — which occurred on November 13, 2024. At the appearance on November 14, 2024, the Department did not know the identity of who was conducting the Qualified Assessment. The Attorney for the Child reported that he had proactively figured out who was conducting the assessment and had proactively reached out to that person to establish contact — and at the appearance on November 14, 2024, confirmed the telephone contact number of the evaluator.

6.   Caseworker Cittadino testified that a potential match was made with a foster boarding home in Otesaga County and at the time of the hearing, the placement was a "possibility" and in the early stages — as before being matched C. and the proposed foster parent(s) would need to meet and visit before confirming C.'s placement.

7.   21 OCFS-ADM-17

8.   As the hearing progressed on December 3, 2024, and information was being offered as to C.G.' recent sobriety, compliance with treatment and services, and willingness to cooperate with the Department - the possibility of C.L. returning to his mother's care under the Article 10 Supervision of the Department was broached and inquiry was made to counsel as to the party's willingness to enter into an order on consent returning C. to his mother with Court Ordered services in place. The Department was unwilling to accede to the request and maintained that not only should C.L. remain placed — but should remain placed in a QRTP over the recommendation of the QI.

Michael J. Hartnett, J.