DECISION ON MOTION The motion, made by way of an order to show cause, by the subject child K.U., filed pursuant to Family Court Act §1091, to order his return to foster care placement is denied. PROCEDURAL HISTORY The Administration for Children’s Services (hereinafter “ACS”) filed a petition on behalf of K. U. against his father M. U. (hereinafter “respondent father”) and his grandmother L. A. (hereinafter “respondent Anthony”) on April 4, 2019. The petition alleged inadequate supervision and guardianship in that both adults failed to intervene and protect the younger child, A. U., from the actions of her brother and medical neglect in that neither adult followed up with the medical and psychiatric needs of K.U. On that date, K.U. was remanded to the care and custody of the Commissioner of ACS. On or about May 15, 2019, when still in ACS’s custody, K.U. was arrested and a Grand Jury returned a true bill against him on or about June 6, 2019. He was indicted for Criminal Sexual Act in the First Degree, a Class B felony, and several related charges. At the time of the indictment, K.U. was incarcerated and held on bail. He currently is being held in jail. On or about November 1, 2019, K.U. turned 18 years old. In court on December 2, 2019, with K.U. being present, his attorney informed the Court that he no longer wished to remain in care and argued that the case on behalf of K.U. be dismissed or withdrawn. ACS at first objected, but then on or about December 17, 2019, counsel for ACS emailed the Court and counsel indicating they would be withdrawing the petition on behalf of K.U. As such, the matter was subsequently marked withdrawn without prejudice and marked off calendar. On February 11, 2020, K.U.’s attorney submitted an order to show cause requesting the matter be restored to the calendar and that the Court allow K.U. to re-enter foster care. Counsel’s argument for reentry into foster care was made based on communication from K.U.’s criminal defense attorney that “the Judge presiding over K.U.’s pending New York County Criminal Court case was inclined to release K.U. to the Whitney Academy, in lieu of criminal incarceration within the New York State Department of Correction.” (McGloin Feb. 11 Affirm. para. 11). It was argued that a remand order was necessary for K.U. to be accepted into that program. Due to a change in circumstances — specifically that K.U. was not accepted to the Whitney Academy, that motion was withdrawn on July 14, 2020. On August 21, 2020, counsel for K.U. submitted a new order to show cause requesting again that the matter be restored and that K.U. return to foster care. Counsel stated that he had a phone conference with K.U.’s criminal defense attorney, Jessica Heyman, Esq., who communicated that “the Judge presiding over K.U.’s pending criminal matter desired to see K.U. enter a residential facility to seek various and necessary psychological services and treatment…in order to assist K.U. in obtaining a ‘Youthful Offender’ status.” (McGloin Aug. 21 Affirm. para. 22-23). Heyman’s attached affirmation stated that “based on these charges and his age at the time of the alleged offense, he is eligible to receive Youthful Offender Status (YO) sentencing on this matter. Often in cases such as these, the judge will give the youth the opportunity to ‘earn YO’, by attending a program of some kind.” Heyman also affirmed that, “upon information and belief,” the jurist presiding over K.U.’s criminal matter in Supreme Court “will send K.U. to Children’s Village if he is accepted and placed there……if he does well, he will be allowed to earn his YO there.” The goal was to place K.U. at the Children’s Village foster care agency residential facility or another ACS facility (McGloin Aug. 21. Affirm. para. 21; Heyman Aug 21. Affirm.) This Court notes that if an individual is granted youthful offender status for a felony, pursuant to Criminal Procedure Law 720.20, the sentencing guidelines fall within Penal Law 60.02(02). On September 3, 2020, the matter was heard at a virtual court appearance due to the ongoing COVID-19 pandemic. On that day, both Counsel McGloin and Heyman appeared before this Court. Counsel Heyman informed the Court that the jurist presiding over the criminal case was not agreeing to grant youthful offender status to K.U. Without an adjudication of a youthful offender designation, and if convicted of the highest charge in the indictment, K.U. would face a mandatory minimum period of incarceration of five years and a maximum period of twenty-five years. This Court permitted counsel to submit new papers to reflect K.U.’s current situation and the grounds for his reentry into foster care, since his argument in the August 21 order to show cause was no longer applicable. On or about September 29, 2020, counsel for K.U. filed a new order to show cause and attorney affirmation. Counsel’s affirmation included conversations he had with K.U. on September 29, 2020. The affirmation included that “K.U. wanted to return to foster care so that he can receive assistance in obtaining adequate and appropriate housing should K.U. be released from incarceration.” (Sept. 29 Affirm, para 40; emphasis added). This order to show cause did not indicate when and how K.U.’s criminal matter was resolving. K.U.’s grandmother, L.A., no longer wanted K.U. in her home (Sept. 29 Affirm, para 34). Counsel’s legal argument for a return to foster care rested on Family Court Act 1091. On October 16, 2020, counsel for the respondent father submitted an affirmation in support of K.U. re-entering foster care, arguing that K.U. met the requirements under Family Court Act 1091. Counsel for ACS opposed the motion, and argued that K.U. did not meet the criterion under Family Court Act 1091. ACS further argued that the agency’s position to deny K.U. re-entry into foster care was not unreasonable, as there was no concrete plan for K.U., nor was a remand order necessary for him to get treatment. LEGAL ANALYSIS FCA Article 10-B, entitled “Former Foster Care Youth Re-Entry Proceedings,” is a stand-alone section of the Family Court Act, separate and apart from Article 10, “Child protection Proceedings.” It is composed of only one section, 1091, which states that “a motion to return a former foster care youth under the age of twenty-one, who was discharged from foster care due to a failure to consent to continuation of placement…if there is a compelling reason for such former foster care youth to return to foster care” (emphasis added). On its face, it applies to any youth under 21 who has been in foster care, who left foster care because they did not consent to remain there, and now wants to return to foster care. The intent of the legislature in passing this law was to help youths who may have made “precipitous decisions to show their independence…even when they are desperately in need of assistance.” Matter of Jefry H., 102 A.D.3d 132, 138 (2nd Dept. 2012). Jefry H., concerned a youth who had been adjudicated a Person In Need of Supervision under FCA Article 7. The Court overturned the trial court’s denial of the youth’s motion to re-enter foster care after finding that the youth was a “former foster care youth” within the meaning of FCA §1091. The Court noted that the legislature’s intent in creating article 10-B of the Family Court Act did not restrict the reentry of youths to only child protective proceedings. A motion made pursuant to this section…shall show by affidavit or other evidence that: (1) the former foster care youth has no reasonable alternative to foster care; (2) the former foster care youth consents to enrollment in and attendance at an appropriate educational or vocational program…;(3) re-entry into foster care is in the best interests of the former foster care youth; and (4) the former foster care youth consents to the re-entry into foster care.” This Court finds that K.U. has failed to show a compelling reason for this court to order his return to foster care. He is incarcerated at Rikers Island, facing several felony charges as an adult in New York County Supreme Court, Criminal Term. His most serious charge is Criminal Sexual Act in the First Degree, a Class B felony, which carries a mandatory minimum state prison term of five years and a maximum term of 25 years if he is found guilty and sentenced as an adult. The only way to avoid this mandatory sentence on the top charge is if he is adjudicated a youthful offender. At the September 3, 2020 appearance, K.U.’s criminal defense attorney acknowledged that the jurist in the criminal case was not granting K.U. youthful offender status. This Court does not have any have information that K.U. could even be released from jail if it ordered his return to foster care. K.U. does not allege that he is being offered a plea bargain that could lead to his release from jail. K.U. does not allege that the foster care agency would be bringing services to Rikers Island if he were to reenter foster care. But for speculation and what if’s, there is no concrete information to conclude that K.U.’s criminal matter is being resolved and that he will be released from jail. In fact, K.U.’s criminal matter is next scheduled for April 16, 2021, some four months from now. Although K.U. has been incarcerated since May 2019, the mandatory sentencing guidelines may dictate that he will be incarcerated beyond his 21st birthday.1 Nor does the Court have information before it that a residential treatment program is the actual plan for K.U. Thus, there is no “compelling reason” to return to foster care placement within the meaning of Family Court Act §1091. This case is distinguished from Jefry H. in that there the youth presented facts that led the Court to conclude that there was a compelling reason for him to return to foster care: the youth had no place to live and no means of support. In K.U. case, he has given no reason to show why he should be placed back in foster care while he remains in jail. Conclusion: WHEREFORE, this Court finds that K.U. has not met his burden under F.C.A. 1091 to re-enter foster care. Therefore, motions 4 and 5 are hereby denied. This constitutes the decision and order of the Court.
