Matter of Milagros M. (Esther M.)
Annotate this CaseDecided on May 7, 2020
Family Court, Kings County
In the Matter of Milagros M. A Child under Eighteen Years of Age Alleged to be Neglected by Esther M., Respondent.
NN-17xxx/15
Erik S. Pitchal, J.
By proposed order to show cause presented on April 30, 2020, petitioner ACS seeks an order for an "interim" finding of reasonable efforts. For the following reasons, the motion is denied without prejudice.
The Family Court Act does not provide authority for the court to make reasonable efforts findings on an "interim" basis. Reasonable efforts findings must be made "[a]t the conclusion of each permanency hearing." FCA § 1089(d). These permanency hearings are required under state law every six months. FCA § 1089(a)(3).
Federal law requires permanency hearings every 12 months. 42 U.S.C. § 675(5)(C); 45 C.F.R. § 1356.21(b)(2). The Court is aware that during the current public health emergency, the federal Children's Bureau has issued guidance to the states indicating that the requirement for annual permanency hearings is not being waived. See https://cbexpress.acf.hhs.gov/index.cfm?event=website.viewArticles & issueid=215 & sectionid=1 & articleid=5544. Thus, it is important for juvenile courts across the country to continue to attend to permanency issues in a meaningful and not pro forma manner.
The Court understands petitioner's application to be primarily concerned with restoring federal financial participation ("FFP") for this particular case, given that there has not been a reasonable efforts finding made in more than 12 months. However, reasonable efforts findings alone do not trigger FFP. Rather, FFP is dependent on a number of conditions being met in any particular child's case. As relevant here, these conditions include:
1) Initial judicial determination, at the first court appearance on the case, that continuation in the home of removal would be contrary to the child's welfare. 42 U.S.C. § 671(a)(2)(A); 45 C.F.R. § 1356.21(c).2) Initial judicial determination, within 60 days of removal, that the agency made reasonable efforts to prevent the removal. 42 U.S.C. § 671(a)(2)(A); 45 C.F.R. § 1356.21(b)(1).3) Placement of the child in a licensed foster home or facility as defined by federal law. 42 U.S.C. § 671(a)(2)(C).4) Eligibility of the foster parents to receive federal funds, based on a mandatory criminal background check. 45 C.F.R. § 1356.30(b), (c).5) Eligibility of the home of removal, at the time of removal, for the former AFDC program, based on income criteria. 42 U.S.C. § 671(a)(3); and6) Judicial finding of reasonable efforts every 12 months. 42 U.S.C. § 671(a)(15); 45 C.F.R. § 1356.21(b)(2).Fewer than 60% of New York's foster care cases meet all the eligibility requirements for FFP. See Child Trends, "Child Welfare Financing Survey SFY 2016," available at https://www.childtrends.org/research/research-by-topic/child-welfare-financing-survey-sfy-2016. Typically, when New York erroneously submits non-eligible cases for FFP, the reason the case is found to be ineligible relates to foster parent licensing or one of the criteria other than timely reasonable efforts findings. See, e.g., New York State Primary Review, Title IV-E Foster Care Eligibility, Report of Findings for October 1, 2017 to March 31, 2018, available at https://www.acf.hhs.gov/cb/resource/new-york-subsequent-title-iv-e-2018.
Thus, before the Court will entertain the idea of entering an "interim" reasonable efforts finding, or making such a finding without conducting a permanency hearing, the agency must make a prima facie showing of need. This showing can be made by establishing, with an affidavit from someone with knowledge, that the case would otherwise be eligible for FFP but-for the reasonable efforts finding the agency currently seeks. The affidavit must reference each and every condition for FFP as outlined above (other than # 6) and assert that the condition is met in this case.
It should be noted that while this case may not be currently eligible for FFP because the last reasonable efforts finding was made more than 12 months ago, under federal law eligibility can be restored prospectively as soon as such a judicial determination is made. Given the public health emergency and the Children's Bureau's statement regarding the non-waiver of the reasonable efforts requirement, this Court is willing to work cooperatively and creatively with the parties to address permanency planning. At such time as a Virtual Part is available for conducting permanency hearings, this case can be scheduled for that purpose.
In the meantime, if the agency makes a prima facie showing of need, as outlined above, and obtains the consent of all relevant parties, the Court will so-order an appropriate stipulation. Any stipulation as to reasonable efforts must include the specific bases for that determination. [*2]See Child Welfare Policy Manual § 8.3 A. 7, Question 1, available at https://www.acf.hhs.gov/cwpm/public_html/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=24. This can include a reference to the facts in a court report. However, the Court notes that the permanency hearing report attached to petitioner's proposed order to show cause is for a permanency hearing of September 2019 and fails to mention the child's father, so any reference to this particular report in a stipulation would not provide a sufficient basis for a reasonable efforts finding.
Dated: May 4, 2020
Brooklyn, New York
ENTERED:
____________________________________
Hon. Erik S. Pitchal, J.F.C.
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