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THE RECORD DID NOT SUPPORT PLACEMENT OF THE AUTISTIC CHILD IN A “QUALIFIED RESIDENTIAL TREATMENT PROGRAM” (QRTP) AS OPPOSED TO FOSTER CARE; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ventura, reversing Family Court, determined the record did not support placement of the child, who is on the autism spectrum, in a “qualified residential treatment program” (QRTP) pursuant to the New York State Family First Prevention Service Act. The case gave the court the opportunity to decide an issue of first impression, i.e., which factors a court must consider in approving a child’s placement in a QRTP:

Here, since the qualified individual assessed the child and determined that placement in a QRTP would not be appropriate, the Family Court could approve the child’s placement in the QRTP only if it complied with the requirements set forth in Family Court Act § 1055-c(2)(c). Although the court found that QRTP placement was inconsistent with the child’s long-term permanency goal of adoption and that the child’s needs could be met in a less restrictive environment, the court nevertheless approved the child’s placement in a QRTP. The court, in essence, based this determination on a finding that there was not an alternative setting available that could meet the child’s needs in a less restrictive environment. * * *

However, the Family Court’s findings in this regard were not supported by the record. The court’s finding that there was not an alternative setting available was based on Loehr’s [the foster care supervisor’s] testimony that SCO [a foster-care agency] did not have any foster family homes available that could meet the child’s needs but that SCO was working to place the child in a foster family home for developmentally disabled children and was actively exploring families to adopt the child. On cross-examination, Loehr testified that SCO had not yet placed the child in a foster family home for children with developmental disabilities or a therapeutic foster family home through another agency because this would require a “step-up” conference, yet Loehr failed to explain why a “step-up” conference had not been held during the two months in which the child had been placed in the QRTP. This testimony was insufficient to support the court’s finding that there was not an alternative setting available that could meet the child’s needs in a less restrictive environment. Furthermore, Loehr’s testimony that the child had continuously lived in a foster family home setting from 2019 until January 2024, during which time his needs consistently had been met, calls into question the purported unavailability of any alternative, less restrictive settings. Matter of Joseph D.L. (Keisha T.M.), 2025 NY Slip Op 04178, Second Dept 7-16-25

Practice Point: Consult this opinion for the criteria for placement of a child in a “qualified residential treatment program” (QRTP) as opposed to foster care. The criteria were not met here.

 

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