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negligent-foster-care

The Case of Baby B: Victim of a Faulty and Negligent Foster Care System

  Alan Fuchsberg  |  October 30, 2018  |  

Contributor(s): Jill Blaustein

The Case of Baby B: An Introduction

State and city foster care agencies have a legal and moral responsibility to care for and protect children that fall within their jurisdiction. This is a story of an infant who, after a questionable removal from loving parents, was placed in a warm and kind kinship home. But due to red tape and lack of administrative support, and without due process, the thriving baby was shortly removed from the kinship home because the kinship family had incomplete immigration documentation. The foster agency, which financially benefits from placements, negligently and recklessly transferred the baby to the home of an admittedly overwhelmed foster mother, ignoring both her pleas and that of the baby’s natural father to not leave the baby there. The baby suffered nearly complete neglect for over a year, culminating in severe 3rd-degree burn injuries when the baby was left squeezed next to a radiator.

Children are a vital and cherished part of our population and the future depends on them. They deserve quality care and the protection of their human rights. There are various institutions in our country that oversee their protection and care when a parent or guardian is unavailable to do so. In New York City, the Administration of Children Services (ACS) handles these cases. Aside from the initial identification of a child in need, the ACS contracts much of their responsibility to the child to private, non-profit foster care agencies. The case that will be described below underscores these pressing questions:

How conscientious is the monitoring and supervision by ACS of the foster agency, and in turn, how closely does the foster agency monitor the foster home?

Baby B: A Foster Care System in Free Fall

In this case, the Jacob Fuchsberg Law Firm represented a family where the system broke down. At six months old, our client, Baby B, was placed into foster care with the Defendant foster care agency. NYC’s Child Protective Services had him removed after two incidents of neglect. The first incident was when Baby B’s father came home to find him totally alone, while his mom, age 18, had stepped out to be with her friends. The second incident was when a Child Protective Services investigator visited the home and found that the lights were not working. The father explained it was a problem with ConEd and promised he would straighten it out the next day. But with two strikes against them, Baby B was forcefully removed that night from the embrace of his own mother and father.

It is important to note that at the time he was removed from his home, Baby B had no health issues. His birth history was unremarkable. He had two loving parents, who were very young, and could have used some coaching, but the removal of their child was a draconian punishment. A professional family evaluation would undoubtedly have determined that family counseling was in the best interest of the child, not removal. Instead, with a police escort, the Administration for Children Services placed the child in a kinship home with an aunt and uncle having no natural rights, and supervision of the placement was assigned to a private foster agency.

Baby B: Foster Placement #1, And Another Forceful Removal  

After the removal from his original familial home, Baby B was not estranged from his family, having been placed in a caring family kinship home. It was reported that Baby B was “thriving” there, and developing at an appropriate rate for his age. This initial placement follows the traditional protocol for foster care, as it is well accepted that kinship family placement is most often the best placement because of the natural love and care, as well as the relative ease of maintaining a relationship with the natural parents.

Rather than help this inexperienced kinship family get through the red tape to receive long-term clearance, after several months, thriving Baby B was removed from the kinship home. No lawyer was assigned to either the natural family or kinship family to see that due process, procedure, and hearings occurred. Rather, the child was again forcefully removed in the middle of the night, without notice and an opportunity to be heard. No investigation into Baby B’s health or emotional state occurred. Baby B’s removal was simply due to the fact that the kinship family was unable to complete administrative clearance forms, rendering them incapable of fulfilling their technical requirements within the short period of ninety days allowed for them to do so. One issue was clarifying the immigration status of Baby B’s grandmother. The foster care agency did not lift a finger to help. ACS was equally inattentive.

This treatment was wholly contradictory to H.R. 6893 (110th): Fostering Connections to Success and Increasing Adoptions Act of 2008 (Sec. 102), a Federal Act which establishes guidelines for the foster care system. Under this Federal law, both ACS and the private foster care agency were required to provide:

“Components of a family reconnect program: (1) a kinship navigator program to assist kinship caregivers in learning about, finding, and using programs and services to meet the needs of the children they are raising and their own needs.”

In this case, the child and family were left to fend for themselves. As the goal is to place children in the care of family members if the right home is available, as it was here, the foster agency should have assisted Baby B’s relatives in meeting the requirements within the 90 days.

Baby B Foster Placement #2: A Neglectful, Chaotic, and Ultimately Dangerous Home

Despite the standards of care for foster agencies, the Defendant agency removed the Baby B to a non-kinship placement already overrun with six children plus another baby, who was the child of a teen mother in the home. The foster mother reported already being overwhelmed with the children in her home and said that the addition of Baby B would simply be too much for her. She also worked outside the home and could not care for the baby herself. She reports allowing the adolescent foster children in her home to care for the younger children. This violates ACS and agency rules. She often left a teen foster child in charge of the younger children who were known to have her own emotional and substance abuse issues.

In this neglectful and chaotic environment, upon foster care case-planner visits, Baby B began experiencing delays and failed to meet developmental milestones. He lost weight and ripped hair out of his head. He was not standing or sitting by himself, was constantly crying, and did not move when placed on the floor or in the crib. When he opened his eyes and the case-planner called his name, he was reported to just silently stare and not smile. This is a tell-tale sign of a neglected child who is not receiving the attention and care that he needs.

The foster mother was aware of the harmful situation, and pleaded to the case-planner to take the child out of her home as she did not have the resources or time to care for Baby B. Unfortunately, the foster agency failed to properly act and ACS failed to properly review the case planners records, which clearly spelled out the problem. This sequence of events is one of the many that exemplifies the lack of accountability within the agency and its case-planner, as well as the preventable nature of the violence continuing against our infant client.

According to a foster care system expert on our case,

“[i]f, the foster parent is requesting for the child to be removed, they have to put in what they call a ten-day notice. That ten-day notice is reviewed by the agency, and then [they] check with ACS and ask for a conference to be done to move the child.”

The case-planner testified that the child was not placed into a home with a higher level of care purportedly because the agency had failed to have him evaluated. There were also long gaps in child health care services because the agency had not done the paperwork to keep services in place.

Foreseeably, while under the care of the troubled teen foster child, Baby B suffered 3rd-degree burns from a radiator on his legs, arm, and foot. The agency and foster mother were fully aware that this troubled teen should not be in charge, but the foster mother’s unrelieved stress-fueled neglect allowed it to happen.

Baby B Today: Still Struggling as a Result of Neglect

Baby B is now reunited with his loving father and attends a caring elementary school, but he struggles due to the neglect and abuse of his early childhood. He suffers from weakness in behavioral inhibition and self-monitoring, and has deficits in social cognition. He has emotion perception (identifying facial affect) and theory of mind disabilities, both of which are considered fundamental to the development of social skills. His problems with behavior control make it challenging for this smart, beautiful, and charming child to get along in a regular class in the absence of copious amounts of structure, encouragement, redirection, and positive reinforcement. He is getting this type of educational assistance now, and it is helping him immensely. 

Baby Bs Treatment Did Not Comply with Accepted and Long-Established Foster Care Practices

The social and medical experts advising us, as well as our team of attorneys, all agreed that each and every failure of the system described above constituted a departure from good and accepted child welfare foster care practices and were the proximate cause of the baby’s physical, emotional, and cognitive injuries.

The [New York City Family Court?] put a fine point on this type of conduct,

“[a] child care agency is not simply a distribution center; it must consider each child’s special needs and the foster parents’ ability to care for those needs (see 18 NYCRR 430.11 [d] [2]; see also New York State Department of Social Services 1988 Model Foster Parent Manual at 3 [“foster parent must be able to “provide for the physical, emotional, social, and educational needs of children who may be placed in the home”]; New York State Office of Children and Family Services 2010 Foster Parent Manual at 12, [“in placing a child in a foster home, agency staff try to find a home that best suits the child’s needs by considering, among other factors, whether the child (has) special physical, psychological, or medical needs that require a foster home that is equipped and trained to handle them; and whether the foster home can meet the child’s specific emotional needs.”]

As one of the City’s largest foster care agencies, the defendant agency should have been well versed in child welfare practice and incorporated this in its staff training protocols—the case-planner should have been taking the lead in ensuring that Baby B’s case plan was formulated from a psychosocial perspective and a treatment plan should have been developed to address the child’s problems and needs. Among other things, the agency, its agents and employees, should have conducted evaluations into whether the foster child’s home was appropriate and nurturing, and ensured that Baby B was getting the services that he needed, and should have identified the neglect and dangers and responded to calls for help or assistance by the foster mother. They failed to perform all of these responsibilities in accordance with good and accepted professional practice.

What We Have Learned: Foster Care Can Make or Break a Child’s Life

Children in these scenarios, as well as their parents, are left with emotional and physical trauma. Our infant client and his family were torn apart unnecessarily and inappropriately. The technical reasons for this (failure to have proper immigration papers) are akin to the tearing apart of children from their families by ICE — a rampant tragedy in current day America. No child deserves to have their family life torn apart by politics.

This narrative shows us that the politicization of families not only extends to institutions designated for immigration purposes but in the foster care system that is meant to protect children of all families. Though unfortunately common, the violence against children within the systems of the United States must not be normalized nor desensitized. Our firm will always continue to condemn such violence, and persecute the injustice for our clients who have experienced it.

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