Legal Orgs Represented by Proskauer Rose Have Standing to Sue State "Host Homes" Program

The organizations' pro bono legal team is fighting to annul the "Host Family Homes" program because they say it omits important legal protections for children.

A New York program meant to assist parents with child care during a family crisis struggles to launch as an Albany appeals court on Thursday said three legal organizations representing foster-care children have standing to try to undo the program.

The organizations’ pro bono attorneys from Proskauer Rose of New York City are fighting to annul the “Host Family Homes” program because they say it omits important legal protections for children.

The state Office of Children and Family Services adopted regulations establishing the program, which does not involve the state child welfare system, in December 2021.

The state billed the fledgling program as a “bold, new initiative” that will support families who need temporary care for children because of a surgery, illness or death in the family, or some other crisis, through a model that’s in place in at least 33 other states.

Thursday’s 5-0 opinion by Appellate Division, Third Department Justice John C. Egan Jr. said Proskauer Rose’s clients have standing to sue the state in an attempt to bar the OCFS from implementing the program.

Egan’s opinion said the petitioners “sufficiently alleged an injury in fact that is not merely conjectural, as implementation of the program would, in essence, place children outside their home without the right to legal representation to which they would be entitled by Social Services Law § 358-a and that petitioners have a contractual obligation to provide.”

The opinion went on to state that the “injury falls squarely within the zone of interests sought to be protected by the Social Services Law.”

William C. Silverman, a partner in Proskauer Rose’s global pro bono unit, represents Lawyers For Children, The Legal Aid Society and Legal Aid Bureau of Buffalo, a trio of nonprofit attorney agencies contracted to represent children in foster-care cases.

The firm filed the lawsuit against the state in Rensselaer County in April 2022, describing the program as “an extrajudicial voluntary placement system for children created without any statutory authority.”

The plaintiffs further allege that the state program denies children judicial oversight and independent legal representation. They said it was the “functional equivalent” to a voluntary placement system created by the Legislature that prevents the attorney organizations from representing and identifying children who have been “diverted” into the program.

But Kathleen Treasure of the state’s Attorney General’s Office, which is representing OCFS, equated the host program to parents who routinely arrange temporary care and supervision for their children with family, friends or other social supports, without involving the foster-care system.

“Parents availing themselves of host families, like parents with social supports, do not relinquish legal custody of their children to the host family, retain unfettered access to their children, and may terminate their arrangements with host families at any time,” she wrote in court papers.

The Third Department remitted the case to the trial court in Rensselaer County, where Supreme Court Justice Richard McNally Jr. had said the plaintiffs lacked standing in November.

The Third Department had already granted a preliminary injunction to the organizations in February that enjoined the state from placing children into the host program, pending the appeal.