Reporting and analysis by FamiliesVsDHR.org
A federal appeals court in New York has revived a class action lawsuit filed on behalf of children who were removed from their biological parents and later denied placement with relatives because of decades old minor offenses.
Earlier this month, judges on the Second Circuit ruled that the children involved in the case had suffered what the court described as real world harm. The decision allows the case, B.B. v. Hochul, to move forward for eleven remaining plaintiffs.
The lawsuit was originally filed in 2021 in federal court in eastern New York by The Legal Aid Society and Dechert LLP on behalf of fourteen New York City children. The children alleged that the state and city violated their due process rights by denying foster parent licenses to relatives based on old child maltreatment hotline reports and low level criminal offenses, including possession of drugs or weapons and driving while intoxicated.
Under current New York policy, nearly three hundred felony convictions automatically disqualify kin caregivers from being licensed as foster parents, regardless of how long ago the offense occurred. Court documents describe the list as more expansive than in many other states.
According to the appeals court ruling, some children were forced to grow up with strangers rather than relatives willing to care for them. The court noted that such placements can expose children to psychological and emotional risks. Others were placed informally with relatives in what is sometimes referred to as hidden or shadow foster care. In these arrangements, relatives care for children without formal certification, meaning the household does not receive the financial, medical, or educational supports typically available to licensed foster families.
In at least one instance described in court filings, a child placed informally with relatives did not receive automatic Medicaid coverage because the caregivers were not licensed. The lawsuit argues that this type of placement leaves children without essential services that would otherwise be guaranteed in formal foster care.
Legal Aid attorney Lisa Freeman, who serves as director of special litigation and policy advocacy on juvenile rights, has stated publicly that the case centers on the right of children to family integrity. Research consistently shows that when children must be removed from their parents, they tend to fare better when placed with relatives who maintain cultural continuity, long term connection, and emotional stability.
The plaintiffs contend that New York’s current practice often relies on automatic disqualifications rather than individualized assessments. In some cases, relatives were denied certification because of criminal records from the 1980s or 1990s that had no direct connection to child safety. Despite those denials, eleven of the fourteen children were ultimately placed with those same relatives in informal arrangements, suggesting that the state did not view them as immediate safety threats.
The appeals court partially overturned a lower court’s dismissal of the case, which had previously ruled that the children lacked standing to sue. Since the case was filed, one child has aged out of foster care, two have been placed with licensed relatives, and one continues to challenge adoption certification.
A spokesperson for New York City’s Administration for Children’s Services stated that the agency is reviewing the court’s decision. As with most child welfare matters, agencies are limited in what they can disclose publicly due to confidentiality protections.
The revived lawsuit raises broader questions that extend beyond New York. Across the country, kinship placement is widely encouraged in principle, yet families often report barriers that prevent relatives from being licensed or supported. When children are placed outside their biological family networks due to technical disqualifications rather than individualized review, the long term impact can be significant.
For families who believe relatives were unjustly denied certification, the primary recourse remains through the courts, a process that can be lengthy and expensive. As this case proceeds, it may clarify how far states can go in imposing automatic exclusions without meaningful review.
FamiliesVsDHR.org will continue monitoring developments in B.B. v. Hochul and similar cases nationwide, as they carry implications for kinship caregivers, foster care policy, and due process protections for children.
