June 15, 2010

Subject: A3233-B/Clark S.6877/Parker

An ACT to amend the executive law, in relation to the establishment of the independent office of the child advocate; and repealing certain provisions of such law relating to the office of the ombudsman.

Position: SUPPORT

In response to the ongoing crisis in New York’s juvenile justice system, this legislation would establish a watchdog entity to oversee the state’s juvenile justice facilities operated by the Office of Children and Family Services (OCFS). This entity is critical to ensuring that the state’s institutionalized children are free from abuse and provided with needed treatment and services.

This legislation charges the Child Advocate with investigating and reporting on particular and systemic issues and developing policy recommendations and solutions. The bill also empowers the Child Advocate through the following critical provisions:

  • Broad mandate to protect children: the Child Advocate is mandated to protect the legal rights of children entrusted to the state’s care and to serve as a voice for this population. Such a mandate is necessary to ensure that the interests of institutionalized children are specifically represented.
  • Independence: A3233-B/ S6877 establishes the Child Advocate’s independence of OCFS – an element which is essential to its ability to carry out its watchdog function – by holding the entity accountable to only the governor and the legislature.
  • Authority to hold subject entities accountable: when the Child Advocate issues reports to and receives responses from identified agencies with problems, the Child Advocate is authorized to pass these reports and responses on to the governor and the legislature in order to hold OCFS accountable.
  • Access to records, facilities, staff, and children: the Child Advocate is given authority to access any records necessary, as well as facilities, staff, and children themselves.

The NYCLU believes that A3233-B/ S6877 would establish an oversight entity that is robust – and sufficiently independent to effectively advocate for institutionalized children.

The proposed Office of the Child Advocate is a missing, but essential component of the state’s juvenile justice system, which has been in a state of crisis. Every year, more than 1,600 children enter institutional placement facilities in order to receive services. Many of these institutionalized children are subject to abuse and deprivation at the hands of the state. Reports have found that many are subject to sexual abuse, the use of excessive and disproportionate force, and lack basic rehabilitative services, including mental health treatment, which the majority of children require. There is now broad consensus among policymakers, scholars, and child advocates that this system is utterly broken, and that there must be a paradigm shift towards a more therapeutic, community-based, and rehabilitative model.

A. The Governor’s Program Bill

Governor Paterson’s Program Bill 273 embraces this paradigm shift. Most important, the bill reserves institutional placement only for the most serious cases. Under Sections 3 and 4, placement will only occur when a child presents a significant risk to public safety and no less restrictive alternative is available to mitigate the risk. This provision is extremely important because under current practices children are institutionalized unnecessarily, in facilities where they are isolated from their families and communities.

What’s Missing: A Robust and Independent Oversight Entity

Although Program Bill 273 represents a significant policy advance, it fails to establish an oversight entity that can effectively represent children entrusted to the state’s care. The bill creates an Office of the Juvenile Justice Advocate (JJA), but this office lacks the authority to represent the interests of institutionalized children.

Fundamentally, the JJA’s mandate seems restricted to ensuring the “quality of care” in residential programs rather than broadly protecting the legal rights of institutionalized children. The JJA’s ability to fulfill its duties is also compromised by its limited independence; the bill requires the JJA to not only report to the governor and the legislature, but also OCFS, thereby making the JJA accountable to the office that is responsible for overseeing. Furthermore, when the JJA issues a report and recommendations to OCFS in response to an identified problem, OCFS may respond as it sees fit. As a result, this bill fails to hold OCFS accountable. This legislation could also be interpreted to give the JJA access to only limited documents, even though the JJA would require broad access to records and documents to carry out its duties effectively.

The NYCLU supports the Governor’s call for policy reform, particularly his proposal to place children in the least restrictive setting and in their home communities when possible. However, we also believe that in order to realize the objectives of the Governor’s reform mandate, an Office of the Child Advocate must be established that reflects the elements contained within A3233-B/ S6877.
 

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