A Manhattan state Supreme Court judge found the city's Administration of Children's Services unlawfully sent children back to detention for years, thanks in large part to the vacuum created by state officials who have failed to create critical rules following legislation passed in 2012.

Supreme Court Justice Carol Edmead recently issued an order detailing the situation that has led public defenders to argue hundreds of children were wrongfully reincarcerated by ACS.

The dynamics flow from the failure of the New York State Office of Children and Family Services to put together rules for how ACS would handle the revocation for so-called aftercare, the juvenile justice equivalent of parole.

The petitioner in the case, identified by the initials J.D., brought an Article 78 proceeding against ACS, seeking an annulment of his caseworker's decision to revoke his aftercare in October 2018.

ACS was empowered by the “Close to Home” initiative, first proposed by Gov. Andrew Cuomo in the 2012-13 executive budget. The law allows ACS to place children found to be delinquent in residential services and aftercare programs. The point of the legislation was to keep youths close and in contact with their families, as a way of increasing the likelihood of successful reintegration after being released.

The issue, as Edmead noted, was that, while the law sought to empower ACS to return children in its custody to facilities should aftercare be revoked, the state agency failed for years to actually put together the rules framework for parole release, supervision, and revocation.

“It is undisputed that OCFS has not promulgated any regulations governing the revocation of aftercare,” the Supreme Court noted. Rather, ACS has been relying on an internal policy for how to deal with revocations, even receiving OCFS approval by March 2019.

However, Edmead noted that even with the approval, internal policies “promulgated without an express grant of legislative authority, have no force of law.”

In a statement, Legal Aid Society juvenile rights practice attorney-in-charge Dawne Mitchell called Edmead's ruling a “major victory,” but not a complete one, as “the damage has already been done for the hundreds of youth whose aftercare was revoked in an unlawful and capricious fashion.”

According to the Legal Aid Society, OCFS is in the process of promulgating rules in response to the litigation. A spokeswoman pointed to emergency regulations recently published by OCFS. These emergency rules have been put forward for public comment, which ends July 8. Finalized rules are likely expected at some point after the public comment period ends.

An ACS spokeswoman directed questions about the litigation to the city's Law Department. A spokesman for the Law Department did not immediately respond to a request for comment.

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