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In re Proceeding for Permanency under Article Ten-a of Family Court Act Shawn S.

Family Court, Oswego County

July 13, 2017

In the Matter of a Proceeding for Permanency under Article Ten-a of the Family Court Act Shawn S., A Child under the Age of 21 Who Has Been Freed for Adoption.

          Audrey Flynn, Esq. for OCDSS, Maureen H. Petersen, Esq., AFC for Shawn

          Kimberly M. Seager, J.


         Shawn S. is now fourteen years old. He has been in foster care with the Oswego County Department of Social Services (hereafter "OCDSS") for six years. [1] He was freed for adoption in 2014 after his birth parents executed judicial surrenders which were approved by this Court. Shawn is not yet adopted, however he has resided in the home of his pre-adoptive parents, Nick and Robin M. (hereafter "the M."), since December, 2014. [2]

         In April 2015, Shawn's advocates began to object to Shawn's appearance at his Permanency Planning Hearings (hereafter "PPH"). Since that time, this Court has waived some personal appearances and has allowed Shawn to appear by telephone. This Court has also mandated Shawn's personal appearance over his objection. On March 23, 2017, Shawn's attorney filed a written waiver of appearance pursuant to Family Court Act section 1090-a. This Court required Shawn to appear by telephone despite his waiver and over his attorney's objection. This decision outlines this Court's reasoning and findings for requiring Shawn's telephonic appearance.

         Shawn has numerous mental health diagnosis, including Post Traumatic Stress Disorder, Emotional Disturbance, and Enuresis. Recent Permanency Planning Reports (hereafter "PPR") also indicate a diagnosis of Attention Deficit Hyperactivity Disorder. Since January, 2015 he has seen Mark Lundquist, LCSW-R (hereafter "Therapist Lundquist") for individual counseling. [3] He also attends medication management with Dr. Richard Bennett. [4] Shawn is classified as a student with emotional disturbance and, as a result, has an IEP.

         In October, 2015, Dr. Bennett sent a letter, on behalf of the M.s, requesting a higher level of foster care reimbursement. In support of this request, Dr. Bennett points to Shawn's severe behaviors. Examples of these severe behaviors were not outlined in the letter. [5] The Court has never witnessed any aggressive or severe behaviors from Shawn.

         This Court notes that Shawn tends to express his wishes differently between his various providers. By way of example, in 2015, Shawn indicated to Therapist Lundquist that he wished to renew visiting his birth mother and sister Angel. [6] However, at the same time it was reported by the M.s and a services worker that he did not want to renew visits. [7] At the same time, Shawn told this Court that he would want to see his birth mother if she lived closer, as he did not like the drive. [8]

         In January 2016, this Court began to get concerned about the M.'s commitment to adopt Shawn, as they had done nothing to further Shawn's goal of adoption except to sign the letter of intent to adopt. In the spring of 2016, this Court advised the M.s that they needed to make a commitment to Shawn and take steps to complete the adoption or this Court would have no choice but to direct OCDSS to find another pre-adoptive home. On June 27, 2016, this Court ordered OCDSS to move Shawn to another pre-adoptive home. [9] To the M.s credit, by the end of August they had made the commitment to Shawn and began moving forward with their adoption of him. [10]

         The M.s do not regularly or willingly appear in person for court proceedings. There has never been any stated reason why they could not appear, but this Court has extended them the ability to appear by phone. However, on a few occasions this Court has mandated that at least one of them appear personally so that a thorough inquiry could be conducted.

         Based upon a careful review of this Court's notes, as well as within this Court's own memory, it is noted that before moving to the M.'s home Shawn wanted to visit with his mother and sister and regularly did so when able. It wasn't until March 2015 when Shawn refused to see his mother and sister. [11] Additionally, prior to December 2014, none of Shawn's advocates objected on his behalf to his appearances in Court, nor was this Court notified that he was anxious or concerned about attending. [12] It wasn't until April, 2015, after the move to the M.s, that Shawn's advocates raised concerns about behavioral and emotional duress due to appearances in this Court. [13]


         In 2007, Family Court Act section 1089(d) was amended to require judges to engage in age-appropriate consultation with a child who is the subject of a permanency hearing pursuant to Article 10-A. "The requirement, which is mandated by Federal legislation, is further bolstered by a Court rule stipulating that '[i]n any permanency hearing under Article 10-A of the Family Court Act, the child shall be represented by a [Attorney for the Child] and the Family Court shall consider the child's position regarding the child's permanency plan' " (Sobie, Commentaries, NY Fam Ct Act Sect 1089 [McKinney], citing [22 NYCRR sect 205.17(e)]). While the consultation is mandatory, the manner in which a court engages in such consultation is not specifically stated.

         Early in the section's history, commentators such as Professor Merrill Sobie noted such things as the requirement for consultation with teenagers and most pre-teenagers "probably includes the child's presence in court for the purpose of consultation directly by the judge or referee in open court or in chambers" (Commentaries, NY Fam Ct Act Sect 1089 [McKinney]). For Albany County Family Court Judge W. Dennis Duggan the statute and rule establishes a presumption that children over the age of seven are required to appear personally in court (see In re Pedro M., 21 Misc.3d 645');">21 Misc.3d 645 [2008] [wherein Judge Duggan provides an excellent analysis of the statue's purpose]).

         In 2009, the Third Department agreed with the fourteen-year-old child's attorney that the court erred in failing to consult with the child during a permanency hearing (see Matter of Rebecca KK., 61 A.D.3d 1035');">61 A.D.3d 1035 [2009] [issue rendered moot as a result of the court's later consideration of the child's wishes]). The Third Department again addressed the question of age-appropriate consultation in 2012, in a case involving a then-six-year-old child (see Matter of Dakota F., 92 A.D.3d 1097');">92 A.D.3d 1097 [3d Dept 2012]). While the Court did not decide that the lower court's failure to consult with the child was in and of itself reversible error, it made clear that the Court must consult with a child even if by simply "eliciting an opinion or the child's wishes from the attorney for the child" (id. at 1098; see also Matter of Julian P., 106 A.D.3d 1383');">106 A.D.3d 1383 [3d Dept 2013] [court required to find some age-appropriate way to ascertain the wishes of children]). In this ever developing area of law, the Third Department further constrained the trial court's obligation in the area of age-appropriate consultation in its 2015 decision in Matter of Alexus SS., (125 A.D.3d 1141');">125 A.D.3d 1141 [3d Dept 2015]). In Alexus SS., the Court makes clear that the Family Court must engage directly with children who are sufficiently mature enough to express themselves and that only "considering the assertion by the attorney for the children as to their desires" is insufficient consultation to meet the requirements of 1089(d) (id. at 1143). [14]

         As a backdrop to this rule of law are the policy statements of organizations such as the National Counsel of Juvenile and Family Court Judges' (hereinafter "NCJFCJ"), the American Bar Association (hereinafter "ABA") and the New York State Permanent Judicial Commission on Justice for Children (hereinafter "NYSPJCJC"). These organizations have long been at the forefront of legislation and judicial training to insure that children are heard as part of their permanency planning. With tools such as judicial bench cards [15] and publications such as "Resource Guidelines Improving Court Practice in Abuse and Neglect Cases" [16] and "Tools for Engaging Children in Their Court Proceedings, " [17] Judges are provided an awareness of the importance of consulting with children. There are many factors that must be considered when making decisions that will impact a child's future and these materials stress the importance of seeing children in person in order to ensure that they are healthy, free from intimidation and that their basic needs are being met. [18]

         The mandate to conduct age-appropriate consultation with children has been furthered by recent legislation enacted in March, 2016. The new Family Court Act section 1090-a "outlines a three tiered approach geared to the age of the child as of the date of the hearing" (Sobie, Commentaries, NY Fam Ct Act Sect 1090-a [McKinney]). [19] For children fourteen and older, the court "shall" permit the child to participate in person in all or any portion of the PPH (Fam Ct Act Sect 1090-a (b)(1)). [20] When a child chooses to participate in his or her PPH, he/she has the ability to choose the manner in which to participate (see Fam Ct Act Sect 1090-a (c)). A child may only waive the right to participate after consultation with his or her attorney (see Fam Ct Act Sect 1090-a (a)(2)). The Attorney for the Child must then notify the court and all parties "whether or not the child is asserting his or her right to participate, and if so, the manner in which the child has chosen to participate" (Fam Ct Act Sect 1090-a (d)(2)).

         The only reported decision on this new legislation as of the date of this decision is Matter of Denise J., a trial level decision by Westchester County Family Court Judge Arlene E. Katz (52 Misc.3d 799');">52 Misc.3d 799 [2016]). In holding that Family Court Act section 1090-a prevented the Westchester County Department of Social Services from opposing the child's appearance at her permanency hearing, Judge Katz stated that "[w]hile it may be that Denise's personal attendance is ultimately not in her best interest, this Court is not empowered to use such determination to deny [ ] her right to participate in person" (id. at 807). In making this determination the Court went further to state that the child "and no one else, has the ability to assert or waive such right" to participate in permanency planning (id.).

         Based upon the mandates of current law, it is clear that a child has an absolute right to meaningful participation in proceedings that fundamentally affect them. This Court agrees with Judge Katz that a best interest test cannot, and should not, be used to prevent a child 14 years or older from participating in their permanency hearing. However, does a child have an absolute right to waive that participation? In other words, must the Court excuse a child's presence in court when the ...

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