Family Court, Oswego County, July 13, 2017

Maureen H. Petersen, Attorney for the Child.

Audrey Flynn for Oswego County Department of Social Services.

Shawn S. is now 14 years old. He has been in foster care with the Oswego County Department of Social Services (hereafter OCDSS) for six years.^[FN1] 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.s), since December 2014.^[FN2]

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 § 1090-a. This court required Shawn to appear by telephone despite his waiver and over his attorney's objection. This decision outlines{**59 Misc 3d at 279} this court's reasoning and findings for requiring Shawn's telephonic appearance.

Shawn has numerous mental health diagnoses, 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 [*2]seen Mark Lundquist, LCSW-R (hereafter therapist Lundquist) for individual counseling.^[FN3] He also attends medication management with Dr. Richard Bennett.^[FN4] 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.^[FN5] 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.^[FN6] However, at the same time it was reported by the M.s and a services worker that he did not want to renew visits.^[FN7] 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.^[FN8]

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{**59 Misc 3d at 280} to another pre-adoptive home.^[FN9] 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.^[FN10]

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 that Shawn refused to see [*3]his mother and sister.^[FN11] 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.^[FN12] 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.^[FN13]

In 2007, Family Court Act § 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 Family Court Act 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 {**59 Misc 3d at 281}under Article 10-A of the Family Court Act, the child shall be represented by a[n] [Attorney for the Child] and the Family Court shall consider the child's position regarding the child's permanency plan' " (Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Family Ct Act § 1089, citing 22 NYCRR 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 Merril 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" (Practice Commentaries, McKinney's Cons Law of NY, Family Ct Act § 1089). For Albany County Family Court Judge W. Dennis Duggan the statute and rule establish a presumption that children over the age of seven are required to appear personally in court (see Matter of Pedro M., 21 Misc 3d 645 [2008] [wherein Judge Duggan provides an excellent analysis of the statute's purpose]).

In 2009, the Third Department agreed with the 14-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 AD3d 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. [Angela F.] , 92 AD3d 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. [Melissa P.—Zachary L.], 106 AD3d 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. (Chezzy SS.) (125 AD3d 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{**59 Misc 3d at 282} that only "considering the assertion by the attorney for the children as to their desires" is insufficient [*4]consultation to meet the requirements of section 1089 (d) (id. at 1143 n 2).^[FN14]

As a backdrop to this rule of law are the policy statements of organizations such as the National Council 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 ensure that children are heard as part of their permanency planning. With tools such as judicial bench cards^[FN15] and publications such as Resource Guidelines, Improving Court Practice in Child Abuse and Neglect Cases^[FN16] and Tools for Engaging Children in Their Court Proceedings,^[FN17] 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 and free from intimidation and that their basic needs are being met.^[FN18]

The mandate to conduct age-appropriate consultation with children has been furthered by recent legislation enacted in March 2016. The new Family Court Act § 1090-a "outlines a three tiered approach geared to the age of the child as of the date of the hearing" (Sobie, 2016 Practice Commentaries, McKinney's {**59 Misc 3d at 283}Cons Laws of NY, Family Ct Act § 1090-a).^[FN19] For children 14 and older, the court "shall" permit the child to participate in person in all or any portion of the PPH (Family Ct Act § 1090-a [b] [1]).^[FN20] 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 Family Ct Act § 1090-a [c]). A child may only waive the right to participate after consultation with his or her attorney (see Family Ct Act § 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" (Family Ct Act § 1090-a [d] [2]).

The only reported decision on this new legislation as of the date of this decision is Matter of Denise J. (Latonia J.), a trial level decision by Westchester County Family Court Judge Arlene E. Katz (52 Misc 3d 799 [2016]). In holding that Family Court Act § 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 [*5]is ultimately not in her best interests, 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 child, after consultation with his or her attorney, requests to waive his or her right to participate in planning for his or her future?

The final subdivision of Family Court Act § 1090-a states "[n]othing in this section shall be construed to compel a child{**59 Misc 3d at 284} who does not wish to participate in his . . . permanency hearing to do so" (Family Ct Act § 1090-a [g]). While this would appear to clearly answer the foregoing questions, this court finds that it does not, as subdivision (g) must be considered in light of its history and analyzed together with other statutory mandates^[FN21] and rules of law.

In 2015, in order to "establish a statutory right for the child to attend a permanency hearing," chapter 573 of the Laws of 2015 was adopted to add subdivision (b) (1) (iii) to Family Court Act § 1089 (Sponsor's Mem, Bill Jacket, L 2015, ch 573). Being concerned that, "[a]s drafted," chapter 573 "would have mandated that a child be present for the permanency hearing regardless of the facts and without exception," Governor Cuomo secured the promise of the legislature to a future "chapter amendment that [would] ensure [that] a child can decide whether he . . . wants to participate in some or all of the permanency hearing" (Governor's Mem No. 27 approving L 2015, ch 573, 2015 McKinney's Session Laws of NY at 1312 [Dec. 23, 2015] [emphasis added]). Thereafter, chapter 14 of the Laws of 2016 was adopted and approved on March 21, 2016.^[FN22] Chapter 14 further modified subdivision (b) (1) (iii)^[FN23] of Family Court Act § 1089, and added Family Court Act § 1090-a, referred to by some as the "kids-in-court" statute. At the time of this writing, this court could not locate any sponsor's or executive memoranda associated with chapter 14 with the research tools at the court's disposal.

The chapter 573 Sponsor's Memorandum recognized publications such as Tools for Engaging Children in Their Court Proceedings^[FN24] and found that many courts had not developed rules regarding a child's participation "despite years of training and advocacy" (Sponsor's Mem, Bill Jacket, L 2015, ch 573). In adopting chapter 14, the legislature and the Governor sought to codify best practices in permanency planning for children. It is very clear to this court that the primary goal of{**59 Misc 3d at 285} these legislative actions was to require courts to engage children in planning for their futures.

The legislature recognized that "[c]ertain children may not wish to participate or may [*6]have an important test or other event" (id.). The Governor's concern that the original legislation in chapter 573 would be read "without exception" left the courts with no discretion. Clearly there was agreement that there may be times when courts need the ability to balance the commands of best practices with the needs of a particular child on a case-by-case basis. Subdivision (g) gives balance to Family Court Act § 1090-a's otherwise no-exceptions-type language. It should not be read to give children the final say.

It is noteworthy to this court that throughout these legislative steps to improve court practices, no legislation was presented which would modify the commands of Family Court Act § 1089 (d) or to overturn holdings such as in Alexus SS., and both still mandate that a judge engage directly with a child in an age-appropriate manner. Had the executive and legislature wished to modify these rules of law, they could have also used language such as "nothing in this article" rather than "nothing in this section" as a qualifier to Family Court Act § 1090-a (g). In other words, had the legislature and Governor wished to give children sole decision-making authority on this issue, they could have corrected the conflict between sections 1089 (d) and 1090-a (g) by repealing the command for age-appropriate consultation found in Family Court Act § 1089 (d).

It is a well settled principle of law that the State must act to protect the interests of children who lack proper care by their parents (see Matter of Sayeh R., 91 NY2d 306, 313 [1997] ["In its role as parens patriae, (the State) is under a powerful duty to protect its (minors)"]; see also Matter of Bennett v Jeffreys, 40 NY2d 543 [1976]). It is also well settled that the State exercises its powers of parens patriae through the judiciary (see Matter of Sanjivini K., 40 NY2d 1025 [1976]). Examples of Family Court's authority to act to protect the interests of children are found in every article of the Family Court Act. In exercising its parens patriae powers the court regularly balances the needs of a child with his or her wishes. In this court's opinion, the purpose of subdivision (g) of Family Court Act § 1090-a is to make clear that the dictates of the earlier subdivisions do not mandate a child's participation when he or she has reason to waive his or her appearance. It should not be read to take away the court's duty to protect the interests of{**59 Misc 3d at 286} children, which from time to time require children to do what they do not wish to do.^[FN25]

It is also important to recognize that, in filing the required waiver notice on behalf of their clients, Attorneys for the Children must be zealous advocates for their clients, and in only very narrow circumstances may they act contrary to their clients' wishes. Therefore, if their client wishes not to participate in planning for the future, an Attorney for the Child must, in most cases, make a section 1090-a (d) (2) notification. This is so even if the attorney knows of conditions that the court should be made aware of.

As the facts in the case at bar make clear, it is the court which is in the best position to consider all factors to determine if a child should participate in his or her permanency planning. Certainly with input from the child, and giving due consideration to his or her wishes, the court should not be constrained by a child's desire alone, but should be allowed to consider the totality of the circumstances in order to determine if the child should participate and the manner in which he or she participates in planning for their future.

It is hard to know when a child is being manipulated or when the child's attitude is based upon what he thinks his caregivers want. Even during direct observations, determining the meaning of what is said and why it might be said can be a challenge. This is especially so when a child, such as Shawn, is emotionally fragile.

Shawn is a very sensitive child. He has always wanted to live forever with whomever is his primary caregiver at the time.^[FN26] Shawn is a child who seeks to make others happy. This court also verily believes that it is easier for Shawn to answer questions when not looking the court in the eye.

It is important for children, particularly neglected children like Shawn, to know that the court cares about their needs and is willing to set aside time to discuss their future with them. It is not clear to this court that Shawn believes that he has a future. His coping mechanism is to think in the minute rather{**59 Misc 3d at 287} than consider what might happen in the future. It is difficult for him to speak about his future. Shawn likely does not know that he can benefit from participating in his court proceedings, as it is well recognized that children benefit in many ways from being involved in their critical life decisions.^[FN27]

The court also benefits from Shawn's participation in planning for his future. If the court is prevented from speaking to Shawn it becomes impossible to measure his level of satisfaction or recognize undisclosed problems. Even participation by telephone has limited probative value for the court as it is impossible to recognize important nonverbal cues.^[FN28]

The similarities in Shawn's views with those of the M.s' have not gone unnoticed by this court, and at times have caused much concern, leading to the conclusion that it was imperative for the court to put its own eyes upon him. This is so even over Shawn's objection.

Just as the Governor was concerned that the original language of chapter 573 of the Laws of 2015 might be read to compel courts to have children appear before them without exception, a literal reading of Family Court Act § 1090-a (g) should cause great concern and would be a disservice to children. A proscription on the court's ability to decide whether a child should participate or not could lead to issues going unnoticed and the needs of children being unmet. Instead, the court is empowered by Family Court Act §§ 1089 and 1090-a to consider the totality of the circumstances when determining whether a child should participate in planning for his or her future.

Based upon the foregoing the court will consider all factors in Shawn's case before each permanency planning hearing and thereafter decide if he will be required to attend in person or otherwise, or whether, if he continues his waiver pursuant to section 1090-a, his participation is required at all.