Charles T. Kriss for petitioner.
F. Stanton Ackerman and Laurie B. Kurtzman for respondent.
Peter J. Scagnelli, Law Guardian.
W. Dennis Duggan, J.
In this case, the Court holds that a child has an independent, constitutionally guaranteed right to maintain contact  with a person with whom the child has developed a parent-like relationship. 
That right is constitutionally guaranteed because it is a fundamental liberty encompassed within the freedom of association
right of the First Amendment  of the United States Constitution and article I, §§ 8 and 9 of the New York Constitution.  This liberty is protected by the Due Process Clause of the Fourteenth Amendment and article I, § 6 of the New York Constitution. Because the state has provided no statutory basis for a child to assert such right of contact in a court of law, as it has for similar situations involving child contact with parents, grandparents and siblings, Alex Ryan, Jr., has been denied the equal protection of the laws guaranteed by the Fourteenth Amendment of the U.S. Constitution and article I, § 11 of the New York Constitution. 
I. Procedural History
The procedural history of this case is fully described in Matter of Alex MM. (260 A.D.2d 675 [Ryan I]), Matter of Alex LL. v Albany County Dept. of Social Servs. (270 A.D.2d 523 [Ryan II]) and in Webster v Ryan (187 Misc.2d 127 [Ryan III]). A brief factual summary follows: Alex, Jr., was born in 1995, with a positive toxicology for cocaine. He was removed from his mother's custody shortly after birth. Her parental rights were eventually terminated, as were the father's in 1999. Both parents' terminations were based on permanent neglect. During the time that the Department of Social Services (DSS) was providing services for the mother, the father was filing at least
four custody proceedings.  All of the father's petitions were dismissed by the Family Court judge without a hearing. According to the trial court, the petitions were " dismissed due to [the father's] unwillingness to partake in services recommended by [DSS]." (Ryan II at 529, n 1.) For the years from 1995 to 1998, the father received one hour of DSS-supervised visitation each week. In reviewing the denial of the father's custody petitions, the Appellate Division held:
" In fact, the records in these proceedings reveal no evidence that the father would not be a proper custodian for the child or that the child would be at risk in his custody. To the contrary, despite Family Court's limitation on the evidence received, the record generally supports a finding that the father is qualified to serve as a custodian for the child." (Ryan II at 526.)
Concerning the termination of parental rights finding, the Appellate Division held that DSS made no effort to satisfy its burden of showing that it had formulated a realistic plan that was tailored to fit the father's circumstances. It also held that the Family Court judge " repeatedly thwarted the father's efforts to establish the lack of any reasonable basis for the plan that was put in place ... Obviously, the petition should have been dismissed at the conclusion of DSS' case, if not earlier." (Ryan II at 527.) The Appellate Division, in finding that the Family Court judge had demonstrated hostility toward the father and his attorney, ordered that all further proceedings be conducted before a different judge.
Upon remand, in Ryan III, this Court returned custody of the child to the father and entered a series of visitation orders to facilitate the transition of the child back into the father's home. During this period of time, the foster mother filed petitions seeking visitation and custody rights to Alex, Jr. This Court, in Ryan III, rejected the foster mother's claims. It found that there was no statutory, common law or constitutional
basis to grant visitation to a nonbiological, former custodian. The Court reserved on the question of whether the child has an independent constitutional right to seek visitation with his former foster mother and allowed the parties and the Law Guardian time to brief the issue. This decision answers that question in the affirmative. From Alex, Jr.'s birth in 1995 until April 2000, when he was returned to his father, the boy had lived with the foster mother for all of his life but for a few weeks.
II. Determination of Fundamental Rights
In this case, the Court has concluded that a child has a fundamental right to maintain contact, over the objection of a parent, with a person with whom the child has developed a parent-like relationship. The Court also holds that this right has constitutional protection but that this right must be balanced with the unquestionable fundamental right of the parent to raise his son without undue state interference.
The judicial determination (disparagingly described by some as " discovery" ) of fundamental rights has long been a subject of great debate in the legal and judicial professions.  There is, admittedly, no consensus on either side of the debate. On the restraint side, there is no agreement on their main point, which is that rights cannot be judicially discovered or determined outside the four corners of the Constitution. On the expansionist side,
there is no agreement about where rights originate or how they are determined. In fact, there is no agreement by either side as to whether any particular judge is on any particular side at any particular time. Also, a judge's membership on either side can change, depending upon whose constitutional ox is being gored. 
A judge, wading into the constitutional rights determination quicksand, must have an abiding concern that he not set himself up as a judicial legislature. This concern goes back at least to the debate between Justices Chase and Iredell in Calder v Bull (3 Dallas [3 US] 386 ). In Calder, Justice Chase set forth the proposition that the Court had the authority to set aside legislation that infringed on rights having their source in natural law. Justice Iredell countered that, even if a legislative act violated natural law, the Court, in setting the law aside, would be exercising powers not granted it by the Constitution.
So, where do fundamental rights come from? They cannot come from our Constitution in the sense that the Constitution itself grants or bestows rights on the governed. After all, a constitution is nothing more than a compact (though a very important one) among the governed as to how they wish to organize their government and what powers it should have and not have. A constitution may create nonfundamental rights and protect or guarantee specific fundamental rights. But, if a constitution was a source of fundamental rights, this would mean that people could confer these rights upon themselves. To so hold would be to say that there were no fundamental rights before the Constitutional Convention of 1787 and those rights were first created in that Convention. The absurdity of that argument is illustrated by just stating it. A constitution may be the repository of rights and even the source of some important rights, but not the source of fundamental rights. At this point, the definition of a fundamental right may have an air of circularity to it. Suffice it to say that if a right can be created by majority vote then it can be extinguished in the same way. For a right to be fundamental, it must be exempt from that process. The obvious reason for this is that for a right to
be fundamental, whatever that right may be, it must have some transcendental quality and such a right could not have been created by a majority vote of the 39 men who signed the Constitution. It could have been enumerated by them to the extent they chose to do so, but not created by them.
Proof that the People possess other rights, not contained in or derivative of the Constitution, comes from three powerful positive sources: the Declaration of Independence, the Constitution and the Bill of Rights.
The Declaration of Independence, in its second paragraph, states:
" We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." (Emphasis added.)
This Declaration, written by Jefferson, influenced heavily by Locke,  states that our rights come from our creator (whether that be a personal God, a deity, or just inherent in the unique dignity of humanness). It also states that our rights are unalienable; that is, they are not capable of being invested or divested, and that among those rights are life, liberty and the pursuit of happiness.  Life, liberty and the pursuit of happiness, according to the Declaration of Independence, is not an all-inclusive list of rights. Because the Declaration predates the Constitution, it is clear that every right we possess need not be found in, nor can be distilled from, some stated right in the Constitution. Nor can every right we possess be found
reposing in a penumbra  of some collection or amalgam of these enumerated rights.
The second evidentiary source for the proposition that all of our rights are not contained in the Constitution is the Constitution itself. The Constitution, as first passed, had no bill of rights at all. The Delegates to the Convention did not believe one was necessary. It was not necessary, in the Framers' view, because the Constitution, as written, gave the Federal Government no power to abridge any fundamental rights.
" James Wilson, a delegate from Pennsylvania, told a meeting of Pennsylvania citizens that a bill of rights would not only have been unnecessary but impracticable. ' Enumerate all the rights of men? I am sure that no gentleman in the late convention would have attempted such a thing.' The new Constitution in Wilson's view was not a body of fundamental law which would require a statement of natural rights. Rather it was municipal law, positive law--what in medieval days was called jus civile. Not a declaration of eternal rights but a code of reference." (Catherine Drinker Bowen, Miracle at Philadelphia at 245-246 [Little Brown 1966].)
The last vote for a bill of rights was taken on the last day of the Constitutional Convention. It was defeated 10-0. (Bowen at 244.)
During the ratification debates, Hamilton, in Federalist No. 84, explained why the Constitution needed no bill of rights.
" I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would offer a colorable pretext to claim more than were granted. For, why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, where no power is given by which restrictions may be imposed?" 
The final element of proof which establishes that all of our rights are not bestowed by or contained in the Constitution comes from the Bill of Rights itself--Amendment IX provides:
" The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (Emphasis added.)
Amendment X provides:
" The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" (emphasis added).
Amendment XIV, § 1 provides:
" No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
These three Amendments all speak to rights held by the People that are not listed in the Constitution. Knowing that other rights exist, how are they to be determined and who should do the determining, the judiciary or the legislature? Most would readily agree that the legislature has the authority to determine rights or even create new rights. For example, the legislature could determine that the people have a right to universal health care. It is doubtful that the judiciary could make such a determination.
" When Mr. Justice Holmes, speaking for this Court, wrote that 'it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts,' ... he went to the very essence of our constitutional system and the democratic conception of our society." 
The question to be asked here is, what is the judiciary's proper [*95] place in the rights determination business? It is clear that the Constitution does create some rights that would not be considered fundamental (e.g., the prohibition against bills of attainder and ex post facto laws). It is also clear that the Constitution protects or guarantees many other rights, some of which are now (but were not always) universally regarded as fundamental (e.g., freedom of speech and religion).  Finally, it is clear that other rights determined by the courts to be possessed by the people are not specified in but are protected by the Constitution. For example, the rights to travel (Edwards v California, 314 U.S. 160 ), to marry (Loving v Virginia, 388 U.S. 1 ), and to privacy (Griswold v Connecticut, 381 U.S. 479 ) are rights protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, but they are not listed anywhere in the Constitution. 
The above discussion shows that if a right exists for a child to maintain contact with a person with whom he has developed a parent-like relationship, it will not be found explicitly or inferentially set forth in the Constitution, but it need not be. [*96] However, if such a right exists, and this Court holds that it does, that right has constitutional protection because it is a fundamental right and the Constitution protects our fundamental rights from unwarranted state intrusion or exclusion.  The search for such a right must begin with the Supreme Court's Talmudic exposition of our Constitution. 
If one scans 200 years of Supreme Court decisions that define, determine or discover rights (however one defines the process)  and the work of legal scholars who have written on the subject, one is left quite disoriented from trying to find any consistently applied, generally agreed upon, theory of constitutional interpretation.  Evidence of this can be seen in almost any 5-4 Supreme Court decision where, among the majority and minority decisions, there are pluralities and sub-pluralities. These decisions literally provide something for everyone. This process begets other 5-4 decisions in the same area of law. The end result produces modifications, exceptions, qualifications and permutations that make the law unintelligible to trial judges, police, administrators and the public. For example, the law of search and seizure has reached such a [*97] state of complexity and confusion that a police officer, riding with a Supreme Court Justice, could not be expected to apply the law consistently. Observing critically on this issue is Joseph Goldstein, Sterling Professor of Law Emeritus at Yale Law School, in The Intelligible Constitution: The Supreme Court's Obligation to Maintain the Constitution as Something We The People Can Understand (Oxford Univ Press 1992). He illustrates the cacophony with which the Supreme Court often speaks by citing the introductory note to Arizona v Fulminante (499 U.S. 279, 281 ). It reads as follows:
" White, J., delivered an opinion, Parts I, II, and IV of which are for the Court, and filed a dissenting opinion in Part III. Marshall, Blackman, and Stevens, JJ., joined Parts I, II, III, and IV of that opinion; Scalia, J., joined Parts I and II; and Kennedy, J., joined Parts I and IV. Reinquist, C. J., delivered an opinion, Part II of which is for the Court, and filed a dissenting opinion in Parts I and III ... O'Connor, J., joined Parts I, II, and III of that opinion; Kennedy and Souter, JJ., joined Parts I and II; and Scalia, J., joined Parts II and III. Kennedy, J., filed an opinion concurring in the judgment."
Professor Laurence H. Tribe, in Constitutional Choices (at 3-5), remarks on the problems of explaining how these constitutional choices can be validated as legitimate. He was moved, he said, " by a sense of the ultimate futility of the quest for an Archimedean point outside ourselves from which the legitimacy of some form of judicial review or constitutional exegesis may be affirmed."
Somewhat at the other end of the judicial interpretive spectrum is Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit. Quoting him at length from Overcoming Law, he expresses the same sentiment but more vividly.
" There are two ways ... in which judges can go wrong. The 'fundamental values' approach goes wrong by being too willing to make political judgments. ' Clause-bound interpretivism' goes wrong by not being willing enough to make political judgments, with the result that substantive injustices are ratified, even reveled in the name of the rule of law. The first mistake invites charges that the judges are being lawless, the second that [*98] they are being heartless. The first invites charges that the judges are elitist, anti democratic, arrogant in setting their judgment against that of the people's representatives, the second that they are too quick to yield to populist pressures, too insensitive to the danger of tyranny by the majority, too pious and credulous about the ideology of democracy, too callous, too servile--even cowardly. The objection to naming the avoidance of these extremes 'interpretivism' is that it implies the existence of an objective technique, such as cryptograph, or translation, or reading a chest x-ray for signs of pulmonary disease, that, if only judges would adhere to it, would prevent them from going to either of the bad extremes. If there is such a technique-- something to lift free constitutional 'interpretation' above the reading of palms and the interpretations of dreams--no one has discovered it." (Posner at 199, n 7 [emphasis added].)
Despite the absence of a legislative road map or clearly defined constitutional sign posts or a generally accepted method of rights determinations to provide guidance, courts, since courts began, have been determining rights.  These rights have been birthed from statutes, bills of rights, constitutions, natural law and the common law.
" As Chief Justice Coke said in the famous case of Dr. Bonham in 1610, if a statute should turn out to be against the reason of the common law ... then the common law would control it and adjudge such an act to be void." ...