NYS Fair Hearings In Regard to Adoption
and Removal from a Foster Care Home

Adoption Issues: Fair hearings are governed by NYS Social Services Law 22 and the specific laws providing for hearings, in this case, NYS Social Services Law 372-e with regard to adoption home studies and rejections and NYS Social Services Law 455 with regard to adoption subsidy They are further regulated by NYS Office of Children and Family Services (OCFS) Regulations Part 358 and regulations on adoption.

Adoptive applicants are entitled to a fair hearing if:

• a completed application to adopt is not acted upon by the completion of a home study within 6 months of agency receipt of same application. Regulation 421.11(g)(3) and 421.13(c).
• they are rejected for adoption (whether with or without an adoption subsidy) after agency receipt of a completed application. Regulation 421.11(g)(3), 13(c), and 15(g)(7).
• they have been denied adoption subsidy or the correct amount of subsidy for a child who is "hard to place" or handicapped. Regulation 421.24(f).

Applicants are not entitled to a fair hearing regarding a decision that they are not the appropriate parents for a particular child unless they are related to the child or are the child's foster parents.

Removal of a Child from a Foster Home: Governed by Section 400 of Social Services Law and OCFS Regulation 18 NYCRR 443.5 (a)(1), the Department's policy and regulations on the removal of children from foster family care provides a uniform standard of practice for agencies to follow when responding to placement related problems in foster homes. If the agency is planning to remove a child from a foster home, the agency is required to do the following:

1. Notify the foster parents of the proposed removal in writing at least ten days prior to the proposed date. The only exception is a case where the health or safety of the child requires immediate removal from the foster home.

2. Allow the foster parents to request a conference with the agency. At this conference the foster parent will be advised of the reasons for the proposed removal and be given the opportunity to discuss the reasons why the child should not be removed.

3. Hold the conference within ten days of the date the agency receives the request from the foster parents.

4. Send written notice of the conference to the foster parents and the foster parent's legal representative, if there is one, at least five days prior to the conference date

5. Make a decision no later than five days after the conference and send a written notice of the decision to the foster parents and their legal representative. The decision should also advise the foster parents of the right to a fair hearing.

If there is a conference request, the child will not be removed from the foster home until at least three days after the notice of decision is sent, or prior to the proposed date of removal, whichever occurs later. (For example, if the original proposed date of removal was January 10 and the decision was sent January 6, the removal date would remain January 10. However, if the original proposed date is January 10 but the decision is sent on January 11, the removal cannot be effected until January l4.)

If after the conference, the foster parent is still dissatisfied with the agency decision to remove a child, the law permits the foster parent to request a fair hearing. This is an objective administrative review by a hearing officer assigned by the State Department of Social Services to hear the foster parent and the agency's decision regarding the removal of the child. Plans for a fair hearing are made after the Department's fair hearing section receives a written or telephone request from the foster parent. The foster parent is entitled to have legal representatives at the fair hearings. Foster parents may appeal fair hearing decisions to the State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules.

In order to seek a fair hearing: applicants should write to:

Note: The person who schedules the fair hearings is Beth Mancini, 518-474-6022 OR 800-345-5437 Ext. 4-6022

A request for a fair hearing must be made within 60 days of the action or failure to act complained of, that is, where failure to act in 6 months is the complaint, the request for a fair hearing must be made in the period between 6 and 8 months after the agency received a completed application. Where rejection is the issue, the request should be made within 60 days of a letter of rejection.

Hearings are held "at a time and place convenient to the appellant as far as practicable." Usually they are held in the OCFS regional offices of the district where the appellant resides. The date of the hearing is affected by the following requirements:

• that a request for a hearing be made within 60 days of action or lack of action complained of;
• that the parties receive notice of the hearing at least 6 working days before the hearing;
• that the hearing officer is to make a recommendation to the Commissioner and the Commissioner must issue a decision within 90 days of OCFS's receipt of the request for a hearing, except where the appellant has asked for delay.

Thus the hearing will usually be held 15-30 days from request.

Fair Hearing Process and Procedures: Most fair hearings deal with decisions and actions of the local Office of Children and Family Services (LDSS). In the case of hearings on subsidy, the appeal would also be against the district office. For hearings on rejection or failure to provide a homestudy, an appeal could be against a voluntary or contract agency with the district Office having no role. In such a case, all the provisions of Regulation Part 358 which refer to the district would apply to the voluntary authorized agency.

The Fair Hearing Officer, whose only function is to conduct hearings, is an attorney in the employ of OCFS. S/he is impartial, has not been involved in any way with the action in question, and is guided by relevant law, regulations, and Administrative Directives.

The appellant and his or her representative are entitled to examine any documentary evidence which the other party plans to use at the hearing. If the appellant asks, s/he or her/his authorized representatives must be given an opportunity for such examination before the date of the hearing. Any part of the case record to be included in evidence at the hearing must be available for such examination.

A hearing officer will preside at the hearing, can require the attendance of witnesses and the production of records, take testimony, review evidence, determine credibility of witnesses, examine the parties, make findings of fact, and provide recommendations to the Commissioner.

An appellant may be represented by attorneys or others. Persons who may attend the hearing include representatives of the appellant, the OCFS official (or other party), witnesses, and others admitted by the hearing officer with the consent of the appellant.

Technical rules of evidence do not apply, but evidence must be relevant and material. Each party can be represented, can cross-examine, offer evidence initially and in rebuttal, and examine any documentary evidence offered by the other. A verbatim record will be made. The record, including the recommendations, may be examined by either party. The Commissioner of OCFS or designee will make a decision upon the recommendation of the hearing officer. The Commissioner is bound by the findings of fact of the hearing officer. The decision is to be made within 90 days of receipt of the hearing request, and a copy of the decision must be sent to each party. OCFS must render a decision within 30 days on an adoption subsidy fair hearing (NYS OCFS Regulation 421.24).

Source: NYS Office of Children and Family Services

NYS Citizens' Coalition for Children, Inc.
501 4th Street, Brooklyn, New York 11215
607-272-0034
office@nysccc.org
11/17/2008