Family Court, Onondaga County, May 24, 2018

Maggie Seikaly for Onondaga County Department of Children and Family Services.

Hiscock Legal Aid Society, Syracuse (Amanda McHenry of counsel), for T.R., respondent mother.

Tylyn L. Bozeman, Syracuse, for respondent father.

Kristin B. Greeley, Syracuse, for nonparty paternal uncle.

David S. Tamber, Syracuse, for nonparty foster parents.

Lisa Sapino Cuomo, Syracuse, Attorney for the Children.

On April 5, 2018, the attorney for the respondent T.R. (hereinafter referred to as the mother) made an oral application seeking a judicial subpoena duces tecum ad testificandum compelling C.W., a supervisor employed by the Onondaga County Department of Children and Family Services (hereinafter referred to as County), to provide testimony at a dispositional hearing on an underlying termination of parental rights proceeding.

Subsequent to the court having granted the request and executing the subpoena on April 9, 2018, the attorney for the County filed an affirmation in support of a motion to quash the subpoena compelling the caseworker's testimony. The attorney for the mother filed an affirmation in response to the motion to quash on April 13, 2018.

The attorney for the County argues vacatur of the subpoena is appropriate in light of the court's prior "Decision and Order on Motion" which denied the attorney for the mother's request to access records of the children's foster parents pursuant to Family Court Act § 166 and the production of documents pertaining to the foster parents in the possession of the Department of Children and Family Services pursuant to Social Services Law § 422.

The attorney for the mother argued in her responding affirmation that the County had "opened the door" to testimony as to the children's foster parents by eliciting testimony during the fact-finding hearing from a caseworker as to the condition of the foster parent's home and their interaction with the children.{**59 Misc 3d at 1103} The attorney for the mother further argued that the foster parents are interested parties to the proceeding and inquiry needs to be made as to whether a possible future adoption by them would be in the children's best interest.

The court entertained oral argument, with all counsel present on April 16, 2018, wherein the attorney for the mother further argued that upon information and belief the case supervisor would provide testimony concerning the well-being of a child previously adopted by the foster parents. The mother's attorney also asserted that his testimony would be relevant and material as to the best interest of the two younger children during the dispositional phase of the proceeding.

The attorneys for the County, the children and the foster parents asserted that the case [*2]supervisor's testimony was not relevant to the dispositional hearing pending before the court as the foster care placement of the children is entrusted to the petitioning agency. The attorneys further argued that the inquiry before the court was whether the children's best interest would be promoted by terminating the respondent's parental rights and, thereby, freeing them for adoption.

The attorney for the father and the attorney for the paternal uncle, who has a pending article 6 application for custody before the court, argued that the County's motion should be denied as the case supervisor's testimony pertaining to the children's current home environment is material, relevant and necessary for the court to make the necessary best interest determination.

Upon the conclusion of oral argument the court denied the County's motion and stated a written decision on motion would be issued to counsel.

On February 6, 2018, the court found that the County demonstrated by clear and convincing evidence that despite diligent efforts the parents failed for a period of more than one year following the time the children were placed in foster care, to plan for the future of the children although able to do so. The court further found the children to be permanently neglected by the parents as the mother had not sufficiently progressed or benefitted from the services provided to her and the father had not developed a meaningful alternative plan for the children's future besides foster care. Based upon its permanent neglect findings the court scheduled and commenced a dispositional hearing.{**59 Misc 3d at 1104}

The court has before it a motion to quash a subpoena directing the testimony of an Onondaga County Department of Children and Family Services representative, who is allegedly familiar with the foster home where the children currently reside.

In accordance with section 631 of the Family Court Act, the court shall enter an order of disposition after an adjudication of permanent neglect solely on the basis of the best interest of the child, and there shall be no presumption that such interest will be promoted by any particular disposition. In a dispositional hearing, hearsay evidence is admissible if it is material and relevant (Matter of Ricky A.B., 15 AD3d 838 [2005]). The Appellate Division, Fourth Department has also recently addressed the scope of inquiry in a dispositional hearing under Social Services Law § 384-b and found that "Family Court did not abuse its discretion in limiting the evidence concerning whether the subject child's foster parents were qualified to adopt him" (Matter of James P. [Tiffany H.], 148 AD3d 1526, 1526 [2017]).

Furthermore, the court's sole inquiry pertaining to the relative's article 6 custody petition is, as with the disposition on the permanent neglect finding, the best interest of the child (Matter of Star Leslie W., 63 NY2d 136 [1984]; Matter of Slade v Hosack, 77 AD3d 1409 [2010]). Furthermore, "a nonparent relative [(including a grandparent)] takes no precedence for custody over the adoptive parents selected by an authorized agency" (Matter of Violetta K. v Mary K., 306 AD2d 480, 481 [2003]).

A pending action is usually required for a subpoena to be served directing testimony or production of documents and the court has the authority to "issue a subpoena requiring the attendance of a person found in the state to testify in a cause pending in that court" (Judiciary Law § 2-b [1]). The court notes the intrinsic differences in forms of subpoena and the requisite testimony, information and documentation to be produced in light of the statutes governing [*3]access and the release of confidential information.

Upon the issuance of a subpoena a party to the proceeding may bring a motion to quash pursuant to CPLR 2304 in the court wherein the subpoena is made returnable. Furthermore, the burden lies upon the moving party seeking to vacate the{**59 Misc 3d at 1105} subpoena based upon the underlying circumstances (Matter of Kapon v Koch, 23 NY3d 32 [2014]). In determining a motion to quash, consideration must be given as to the necessity of the witness and the grounds alleged in the motion to quash.

Therefore, the court's inquiry herein is whether or not the alleged information to be elicited from the supervisor caseworker would be material and relevant as to the children's best interest during this dispositional hearing.

The County's basis to quash the subpoena issued by the court requiring the appearance of a case supervisor to testify primarily relies on the court previously denying access in this proceeding to the records held by the Department of Children and Family Services and the Onondaga County Family Court pertaining to the foster parents. The court notes, however, that there is an inherent difference between the release of confidential documents and testimony of a witness.

The court further recognizes that limiting evidence pertaining to the qualifications of a potential adoptive foster parent is appropriate during a dispositional hearing as the question before the court is whether termination of the parents' rights is in the child's best interest, not whether the children are in "the best possible foster placement" (Matter of Michael JJ. [Gerald JJ.], 101 AD3d 1288, 1293 [2012]). Furthermore, the "termination of parental rights does not hinge upon a comparison of the relative benefits offered a child by his [biological] family to those offered by the foster family" (Matter of Leon RR, 48 NY2d 117, 124 [1979]).

The court is, however, cognizant that while such inquiry at disposition is limited in nature, the foster parents' stability and appropriateness may be a significant factor in a best interest analysis (Matter of Kyle K. [Harry K.], 72 AD3d 1592 [2010]). Therefore, the court finds that as a best interest analysis is applicable to the circumstances which exist in this matter, the supervisor caseworker's testimony pertaining to other children within the foster home is relevant and material. Testimony was elicited during the dispositional hearing from caseworker K.H. regarding potential safety concerns within the foster home. The court further finds such allegations are consequential in nature and, thus, the testimony of an individual who is familiar with the interactions within the home between the foster parents and the other children who reside{**59 Misc 3d at 1106} with them is appropriate (Matter of Michael JJ. [Gerald JJ.], 101 AD3d 1288 [2012]).

The court will note that pursuant to Social Services Law § 383 (3) the foster parents for the children may participate in the dispositional hearing as they have continuously cared for the children in excess of 12 months. Through counsel, the foster parents have an opportunity to participate in the proceeding, make inquiry of witnesses and to testify or call witnesses of their own. Their involvement in the children's lives and participation in the litigation before the court warrants testimony from those who may have relevant information concerning the children's current foster care placement.

The court hereby denies the motion seeking to quash the judicial subpoena duces tecum [*4]ad testificandum compelling the testimony of a representative employed by the Onondaga County Department of Children and Family Services. The court finds such testimony is necessary and relevant in making a determination as to the children's best interest during the dispositional phase of the underlying termination of parental rights proceeding.

Now, after hearing oral argument from counsel and upon due deliberation of the submitted affirmations by counsel before the court, it is hereby adjudged that the County's motion seeking to quash the judicial subpoena duces tecum ad testificandum signed by this court on April 9, 2018, is hereby denied; and it is further ordered that the motion filed herein is denied.