Redefining the baseline: reasonable efforts, family preservation, and parenting foster children in New York.

• Author: Bonagura, Rebecca

Adolescents in New York's foster care system are having children at higher rates and at younger ages than other teens. As one of the largest municipal foster care systems in the United States, New York City's Administration for Children's Services (ACS) is grappling with the challenge of responding to the particular needs of young parents who are raising children within the state foster care system (whom this article will refer to as parenting wards), (1) rather than within an extended family.

Although New York does not track either the number of foster children who are parents (2) or the age of respondents to removal petitions, the office of the Public Advocate for the City of New York has reported that one in every six girls in foster care in New York City is either pregnant or parenting, a statistic that is likely an underestimate. (3) The high frequency of parenting among teens in the foster care system is representative of national trends. (4) Teen girls in foster care are two and a half times more likely to become pregnant before their nineteenth birthdays than teens that are not in foster care. (5) Parents under eighteen years old are also more likely to be charged with child abuse or neglect than those who wait until they are older to have children, and they are more likely to have their children removed by the state. (6) The complicated reality behind these numbers is that because of state failure to provide the placements, services, and support necessary to function successfully as a family, parenting wards and their children are often denied the opportunity to remain together. This failure is avoidable. The state should articulate and implement the idea that, as the caretaker of foster children and the enforcer of child welfare laws, it has a heightened duty to families of parenting wards before and after removal proceedings begin.

Legally, parenting wards have the same rights as other parents. (7) Yet, in many ways they are still children in the eyes of the law. (8) Teen parents remain dependent on adult guardians because in many instances they are not permitted to make decisions about their own custody, education, and medical care. They are not emancipated by virtue of their parenthood. Ironically, adolescent parents are responsible for making decisions for their own children that they are not entitled to make for themselves. (9) Teen parents need to be supervised and cared for while simultaneously being given the ability and freedom to be parents to their own children. This duality of roles creates a corresponding double standard for teen parents; they are expected to fulfill adult responsibilities without being provided all of the benefits and freedoms of being an adult. (10) Caseworkers for these teens do not always understand the difficulty of being a parent while still maturing as an adolescent. (11)

Like other parents, parenting wards have a constitutionally protected right to raise their own children. (12) Furthermore, federal law has espoused an intent to keep parenting wards with their children and provides federal funding to do so under the scheme established by the Federal Adoption and Safe Families Act. (13) State law provides the same legal protection to parenting wards as to other parents in removal proceedings. However, some advocates in New York City are concerned that the current application of abuse and neglect proceedings to teen parents in foster care in the New York City system may impermissibly interfere with their exercise of these constitutionally and statutorily protected rights. (14) They have expressed concern that ACS and some family court judges may be too quick to determine that a neglect or abuse case is warranted against these young parents, holding them to a higher standard than non parenting-ward parents. (15) These advocates believe that the "safety and wellbeing of the children of young parents is inseparable from the safety, wellbeing, and support of those young parents," and that "in New York ... the agencies responsible for them too often take a policing approach toward [parenting wards] that is adversarial and punitive, rather than supportive, educational, and preventative." (16)

This Article examines the various issues that come into play when an abuse and neglect petition is filed against a parenting ward in New York. It argues that the Child Welfare Commissioner and ACS have a heightened duty to make efforts to keep the family together when the respondent parent is a foster child. It argues that except in cases of clear imminent harm or where aggravating factors make it impossible to mitigate the risk of harm, it is unethical and improper for the state to file removal proceedings against parenting wards without first considering how further assistance from ACS could prevent the perceived necessity of such filings.

This Article argues that before initiating a removal petition New York should be required to examine the living conditions provided to the minor parent; the foster care agency's impact on any allegations made; the state's fulfillment of its responsibility to provide preventive services to avoid removal; and whether there are further steps that could be taken to prevent removal and strengthen the family unit as required under Nicholson v. Scoppetta. (17) The "reasonable efforts" preventing removal required of ACS before filing removal petitions (18) should be heightened where the potential respondent is a parenting ward and such efforts should come into play well before a removal petition becomes likely. In essence, such efforts should be standard procedure where the parenting ward so desires or where the agency believes it is necessary.

Part I of this Article examines ways in which the current system fails to adequately address the needs of minor mothers in foster care. It presents a case study of the experiences of a minor parent in New York's foster care system in order to illustrate many of the concrete problems typically encountered. Part I will look at the inherent problems of having the same entity upon which the parenting ward is dependent also be responsible for removal of that ward's children. Part I will also address the unique tension between a parenting ward's need for thorough assistance with parenting and her need for some level of familial privacy, a tension which is exacerbated by ingrained visions of childhood, motherhood, race, and class that put a parenting ward at an even greater disadvantage in removal actions. The nature of the legal relationship between the state, the parenting ward, and the parenting ward's child will also be compared to the relationship between a grandparent, a teen mother, and the child in situations where the foster care system is not implicated.

Part II examines the current laws and procedures that are implicated in removal proceedings against parenting wards. It looks briefly at parental rights in America and the legal status of minor mothers (19) in foster care. It will argue that federal law, the state policy implementing it, and ACS's duties provide support for, and even require, the implementation of procedures that are less punitive and more focused on ensuring the success of such families.

Part III will suggest potential improvements that can be made to the foster care system to better align the interests of the state, the minor parent, and the child. It argues for more individualized analysis in cases of minor parents accused of abuse or neglect. Part III argues for recognition of a heightened duty for child welfare agencies to ensure that minor parents in their care have a fair chance to be parents before proceedings are initiated against them. Part III will also look to the California model, which provides judges and case workers with more explicit instructions as to how to handle these cases than New York's system does. This section will argue that improvement requires examining the individual hardships faced by the minor parent. Such hardships might include family histories of physical abuse or drug abuse, lack of financial resources, lack of exposure to good parenting, lack of education, and the general potential harms of being in foster care. The responsiveness and dedication of the individual parent should also be evaluated. ACS must then respond appropriately, taking into account these additional obstacles and factors. Part III will also suggest that providing increased preventative services, resources, and counseling to families in foster care would better prevent Article 10 removal petitions.

1. A SPECIAL OBLIGATION TO PARENTING WARDS: ACS'S DUTIES AND PROBLEMS WITH THE CURRENT SYSTEM

   The right to be a parent and to control the upbringing of one's children is deeply rooted in the substantive due process rights of the Fourteenth Amendment. (20) However, in failing to adequately take into account the particular needs and status of parenting wards, New York jurisprudence denies parenting wards a fair opportunity to enjoy these rights. (21) ACS procedures are not always in accord with the expressed intent of both federal law and state regulations to keep these parents and children together. (22) When a respondent parent is a parenting ward, the fundamental nature of the rights at stake, the immense vulnerability of these parents and children, along with ACS's duty to protect the best interests of both minors, create a situation in which instituting removal proceedings without a higher burden on ACS to prevent them is likely to lead to an unjust cycle of separations without any real progress towards family preservation. While the state does not necessarily have an affirmative duty to help people become parents, when the state acts as parens patriae there is an affirmative duty to provide for the welfare and wellbeing of the minor children in its custody. (23) Once a child in the care of ACS becomes a parent, it is the duty of ACS and the state to protect and foster the...