A controversial state program that would allow struggling families to temporarily place their children with people who aren’t licensed foster parents was met with skepticism from the state’s highest court Tuesday, with judges questioning the lack of legal protections for parents and children and the state’s lack of liability if something goes wrong.

The program, called Host Homes, was proposed by the state’s Office of Children and Family Services (OCFS) in 2021 as an alternative to placing children in state custody through the voluntary foster care system for families who don’t have friends or relatives to help raise their child if they’re going through a rough patch. 

When parents take part in the program they maintain legal custody of their child while they live in another household that has been vetted by a state-approved nonprofit. However, critics of the program point out parents aren’t afforded the comprehensive statutory protections of the state’s foster care system under Host Homes, including the state being liable for the children’s wellbeing and appointed counsel for parents.

OCFS attorney Beezly Kiernan told the New York Court of Appeals Tuesday that, since parents with friends and relatives are already handing their children off to others in their lives without those protections, Host Homes was simply opening up that opportunity to parents without those connections and established some baseline guidelines for the process.

That drew sharp questions from nearly all judges on the bench. 

“How is this not creating a shadow system without oversight?” Judge Shirley Troutman asked. “Why is the state being involved here without the legal protections not, in effect, the creation of a shadow foster care system?”

Parents handing off their children to people they know is not a fair comparison, Lawyers for Children attorney William Silverman argued Tuesday, because here, they’d be with strangers, and the state’s facilitation of that gives parents the impression that they’d be safe and the state would protect them, which isn’t necessarily the case: If something bad happens to a child in a host home, it’s the birth parent’s responsibility, not the state’s, since parents maintain custody. 

“When state involvement is triggered, why aren’t the statutory protections triggered?” Judge Michael Garcia asked. “I just don’t understand it … Isn’t that really just a way to get around the [state’s] liability issue if you’re saying [the state] doesn’t have custody?”

The model stems from faith-based Illinois nonprofit Safe Families For Children, which has said the host home movement’s goal is “enabling the global Church to return to its historic role of caring for the orphan and the widow.” In 2021, when OCFS proposed adopting the program through New York state, three child advocacy groups sued. The program’s been on hold as the suit’s been working its way through the courts. 

While OCFS has argued allowing families to stay out of foster care and court systems is a positive, advocacy groups like Lawyers for Children and the Legal Aid Society, which sued the state over the program, argue that the foster system preserves the rights of parents and children.

In an interview with amNew York Law, Legal Aid attorney Betsy Kramer said that, by participating in Host Homes, parents give up the right to make educational and medical decisions for their children, which they retain under voluntary foster care.  

So far, Lawyers for Children has been fighting a losing legal battle against Host Homes. A trial court in Rensselaer County dismissed the organization’s Article 78 challenge against the legislation establishing Host Homes. Then, last year, the Albany-based Appellate Division, Third Department affirmed the lower court’s dismissal in a 3-2 split decision

Lower courts siding with OCFS have cited the fact that 38 other states currently have a similar program and say they’ve agreed with the state’s argument that it has the legal standing to create a program like this with its regulatory power.

“[OCFS] has been delegated broad authority to establish rules, regulations and policies to carry out its powers and duties under the Social Services Law,” Third Department Presiding Justice Elizabeth Garry wrote for the majority in Matter of Lawyers for Children v. New York State Office of Children and Family Services. “That title grants OCFS the authority to designate ‘authorized agencies’ that are in turn empowered ‘to care for, to place out or to board out children’ [and] ‘to arrange for the free care of a child in a family other than that of the child’s parent … or legal guardian.’”

The Third Department also acknowledged that, though different than voluntary foster care, the Host Homes program has its own set of protections for parents and children: parents must be informed of their legal rights, parents and children must be offered available free or low-cost legal services, local care must be prioritized, parents are allowed to formalize their expectations for continuing contact with their child and consequences exist for host families if they refuse to honor a parent’s request to take their child back.

“Given that parents have always been permitted to place their children in the care of others, the challenged regulations result in increased protections for children, as well as their parents, under such circumstances,” the Third Department wrote.

Silverman argued Tuesday that, since, unlike other states, New York’s voluntary foster care system legislation is uniquely detailed, it is clear what protections the legislature wanted in place when drawing up plans for children to be cared for by people other than their parents. OCFS can’t act contrary to legislative intent, he said, and creating a program through its regulatory power does that. 

Silverman added that he feared families could be coerced into this program over voluntary foster care, which Kiernan disagreed with, saying it would be presented to families just like any other of the agency’s program.

Whether families will be presented with the option to place their children with host families without engaging the foster care system will be decided by the Court of Appeals in the coming months.