What is Voluntary Placement?

Sometimes a parent or guardian decides that it is necessary, or at least better, for their child to live someplace besides home. One example is a teenager who consistently gets into trouble; another might be when a child needs special treatment for behavior problems. In those situations, one choice a parent has is foster care for the child. When a child goes into foster care, that is called "placement." When a parent, rather than a judge, makes the decision to place the child, it is called "Voluntary Placement." The paper the parent signs to place the child is called a "Voluntary Placement Agreement." Foster care refers to any situation arranged by the Administration for Children's Services (ACS), and can be a private home, a group home, or a group institution, like a residential treatment center.

If I decide to put my child in voluntary placement, who will make decisions about my child's care?

When a child goes into foster care, ACS gets legal custody of that child. That means ACS, or the foster care agency, makes the everyday decisions about your child's care, like what time your child goes to bed and gets up, who your child can have as friends, and similar matters.

With your child in foster care, you keep your parental rights or guardianship rights, which include the right to decide important issues for your child, such as what religion your child will practice, if your child will take medication, attend a special school program, have surgery, join the military, or get married.

Can I be forced to put my child in foster care?

You are never required to place your child in foster care, and you should always try to talk with a lawyer before you make the decision to place your child. Do not be afraid to tell ACS you want to talk with a lawyer. The consequences of placing your child in foster care are very serious and you should know what they are.

You can also ask ACS for help preventing placement. ACS must always offer preventive services before a child is placed, to try to avoid placement completely.

Sometimes a caseworker says that a parent must place his or her child in foster care; that may happen when a teenager, who is in placement herself, has a baby. The caseworker might say that is the only way the baby and the teen mother can stay together. That is not true.

The caseworker might tell you that if you don't agree to place your child in foster care, ACS will take you to court. Even if this is said to you, you should not feel forced to sign this agreement; you should sign it only if you truly believe it is the best thing to do for your child. Agreeing to place one of your children into foster care does not mean you have to place all your children. Each child has a different situation.

What is a Voluntary Placement Agreement?

If you decide to place your child, ACS will give you a contract to sign, called a Voluntary Placement Agreement. You have the right to consult a lawyer (again) before signing the contract. This is very important because you can negotiate some conditions into the agreement. You can write in the name of the agency, or person, where your child will be placed. The agreement also lets you write in a date, or an event, when your child will return to your care.

The law requires you to support your child when your child is in foster care. The City may ask you to agree to pay a certain amount each month in child support.

Will I have to go to court?

Even though you agree in writing to place your child in foster care, as long as your child stays in foster care for more than 30 days, there will be a court case about the placement. This is called "358-a" hearing, named after the part of the Social Services Law which requires these hearings. You will get court papers (a "petition") which will give you a date when your case will be in court. The petition has to include a notice that, if your child remains in foster care for 15 months, the agency might be required by law to file a petition to terminate your parental rights. The purpose of a 358-a hearing is for the judge to find out if you understand the Voluntary Placement Agreement that you signed, and if you signed it of your own free will. It is very important that you go to the hearing.

If the judge does not approve the placement, ACS may send your child home, or ACS may bring a child neglect case against you.

What are my rights and responsibilities once my child is in foster care?

Once your child is in foster care, you have the same rights and responsibilities as any other parent with a child in foster care. Your rights include the right to visit; the right to get services so that your child can return home; the right to approve all medical care (except routine care and emergency care); the right to approve educational decisions; the right to go to your child's doctor and your child's school.

It is extremely important for you to understand your responsibilities. Even though you placed your child yourself, your parental rights can still be terminated if you do not satisfy two very important requirements: visiting your child, and; planning for your child.

Visits: You are entitled to weekly visits with your child, lasting at least two hours, in a comfortable and private space, and without supervision (unless the judge orders supervision). You must attend these visits, and spend the time with your child. (It is not okay just to watch your child play. You should interact with your child.) The agency should also give you a written schedule of your visits, and visits generally should be the same day of the week, and the same time of the day, for each visit. The agency is required to set visit times that accommodate your schedule, (that means night and weekend visits if necessary). If your visits are going well, ask for an increase in time or a change that would make them more meaningful. This could be going outside of the agency office during your visit, or longer visits, or visits at your home.

Planning: Planning means taking steps to clear up the problems that made you decide to place your child in foster care, so that you and your child can be reunited again. Planning might include therapy for yourself or your child, or family therapy with your child, or finding new housing, or becoming drug free.

Services: The agency must give you services (called "preventive services") to help you clear up the problems you had (unless a judge decides that the agency no longer has to try to help you). In fact, you are entitled to preventive services if you need them, whether or not your child is in placement. ACS must always offer you preventive services before your child is placed, to try to avoid placement completely.

What happens if my child has been in foster care for more than a year?

After your child has been in foster care for twelve months, ACS has to get approval from the court to continue to keep your child in placement. ACS or the foster care agency has to file a petition and ask the court to review the foster care status of your child. This is called a "392 review," after the part of the Social Services Law which describes the review. The petition has to state what the agency wants the judge to decide, and what the permanency goal for your child is.

You are entitled to a trial, and you are entitled to have a lawyer appointed to represent you, if you cannot pay for a lawyer, you can find free legal help.

What happens at the end of the 392 review?

At the end of the 392 review, the judge must make a decision choosing one of three options:

(1) the judge can return your child to you, or

(2) continue placement, or

(3) order the agency to start a new case to terminate your rights to your child.

The order has to include a description of your visiting plan with your child. It also must include a notice to the agency that the agency has to let you know about Service Plan Review meetings, your right to attend these meetings, and your right to bring a lawyer, or another advocate with you. You also have the right to bring other people, such as friends or relatives.

The court has to give you a copy of its order; the order has to include a notice that, if your child remains in foster care for 15 months, the agency might be required by law to file a petition to terminate your parental rights.

How do I get my children back?

There are a few other important things to know:

Even if you wrote into the contract a date or event on which your children should be returned to you, you do not have a guarantee that your children will come home on that date or event.
When you want your children returned to you (even if it is before any date or event written in the contract) you should send or give your caseworker or his/her supervisor a letter asking for your children back.
If you mail the letter, be sure to address it to either your caseworker or his/her supervisor. Be sure to keep a copy for yourself. This is called a "demand" for the return of your children.
The agency has 20 days to respond; if the agency doesn't think your children should go home at that time, ACS can go to court and file a neglect petition against you to try to prevent your children from being returned.

If the agency does not return your children, you can go to court and file a petition to terminate placement (this has nothing to do with terminating a parent's rights). Go to the court clerk and tell them what you want to do; the clerk will help you fill out the forms you need, and tell you what to do next. You are entitled to have a lawyer appointed to represent you if you cannot pay for a lawyer yourself.

Lansner and Kubitschek
325 Broadway Suite 201
New York, N. Y. 10007
212-349-0900