NY Judges Voice Worry Over 'Rogue' Foster Program in Dissent

By Beth Wang

· Majority opinion says state operated within its authority

· Program takes away child’s due process rights, dissent says

A New York state appellate panel on Thursday narrowly backed a state foster care program that allows children to temporarily be placed with a host family, but not without strong opposition from two dissenting justices.

The New York State Office of Children and Family Services established the program with no “legitimate legislative authority and guidance,” New York Supreme Court Third Appellate Department Justice Stan Pritzker wrote in his dissent.

The agency, he said, has taken away due process rights for children as they have “no counsel, no permanency hearings, no judicial oversight at all and are trapped in an administrative mousetrap with no way out. What could possibly go wrong?”

The 3-2 court affirmed a 2023 lower court order upholding the program that helps arrange for children to be temporarily cared for in a host family when a parent decides they’re temporarily unable to take care of the child. The agency established the program within its rulemaking authority, the majority concluded in its opinion written by Presiding Justice Elizabeth Garry.

Lawyers for Children, represented by Proskauer Rose LLP, asked the court to annul the regulations, arguing it’s a shadow voluntary foster care system without procedural safeguards, and that the agency acted without legislative authority to create the program.

Garry said it’s not the court’s role in this situation to question the agency’s mean to accomplish goals identified by the legislature, and it’s ultimately the parent who decides whether and with whom to place their child for how long.

“This distinction, rejected by our dissenting colleagues, is critical to our consideration,” she added.

But to create a new program that circumvents the current, statutorily-created foster care system raises a public policy question that’s for lawmakers to decide, Pritzker said. The state “has gone rogue” and exceeded its authority by “substituting its own policy preferences.”

“To wit, the regulations not only ‘circumvent foster care placement,’ but directly conflict with and are anathema to the many hard-fought and critical due process safeguards specifically designed by the Legislature to protect the rights of children and their families,” Pritzker said. “In our view, this eschewing of legislative intent is the hallmark of unbridled agency action.”

Lawyers For Children, the Legal Aid Society, and Legal Aid Bureau of Buffalo said they’re “deeply disappointed by the Court’s failure to recognize the Host Homes program as an unlawful abrogation of the rights of the children placed in these homes.” They plan to appeal with the state’s highest court.

Justices Mark Powers and L. Michael Mackey joined the majority opinion. Justice Andrew Ceresia joined the dissent.

The Office of Children and Family Services didn’t immediately respond to request for comment.

Morrison & Foerster LLP represents Pace University professor Merril Sobie, who filed an amicus brief in support of Lawyers for Children.

The case is In the Matter of Laws. for Child. v. NYS Office of Child. and Fam. Servs. , N.Y. App. Div., 3d Dep’t, No. CV-23-2341, 4/10/25 .