Family Court, Bronx County, September 25, 2023

Jocelyn Rossell for petitioner.

Bronx Defenders (Greg Tolbert of counsel) for respondent.

Legal Aid Society (Rachel Summer of counsel), Attorney for the Child.

This decision and order memorializes and supplements the oral decision made on the record of September 12, 2023, as to whether the respondent father Roman D. (hereafter Mr. D. or{**84 Misc 3d at 371} respondent father) should receive notice and/or the permanency hearing report since the child P.D. is 19 years old and does not want him to receive them. Counsel for Mr. D. opposes the application. The Attorney for the Child (hereafter AFC) submitted a memorandum of law for consideration by the court and counsel for Mr. D. submitted an affirmation. The petitioner agency NY City Administration for Children's Services (hereafter ACS) did not submit any papers in support, but stated on the record they agree with the AFC's request.

The AFC's memorandum was very thorough and somewhat persuasive, but not determinative. The AFC argues that P.D. is no longer a minor, is 19, and the case is post-disposition after a finding of neglect was entered against Mr. D. The AFC posits that New York draws a bright line at 18 where a child is no longer a minor and points to Family Court Act § 1087 (a) that similarly defines child as "a person under the age of [18] who is placed in foster care." A neglected and abused child is one less than 18 years of age. (See Family Ct Act § 1012 [f], [e].) The AFC further notes the Social Services Law and Domestic Relations Law have a similar bright line and that NY General Obligations Law § 3-112 and Family Court Act § 1012 say a parent can no longer be held responsible for their child once they attain the age of majority. Thus, the AFC notes, Family Court Act § 1089 which requires that notice be sent to the child's parent is no longer applicable since P.D. is no longer a child, but is an adult.

The AFC also noted a neglectful parent does not have expanded rights where the right would infringe on another adult's right and the individual desire to know or be informed does not outweigh privacy. According to the AFC, allowing Mr. D.'s access to P.D.'s information, as she is an adult, is in contrast to her wishes, but then she refers to P.D. as a "child" when addressing the purpose of the Family Court Act is to protect a "child" and to safeguard [*2]their well-being. Then, the AFC suggests that P.D. is a "young adult" who has the same rights as other adults and that it would be arbitrary and capricious for a court to say a young adult may be denied their constitutional rights by virtue of being in foster care. Of note, the AFC proposes it would be discriminatory that by a foster child consenting to remain in foster care, a child is giving up constitutional rights and privacy rights by being a foster care youth because of the information required in the permanency hearing report, e.g., education, medical, etc., if it's shared with{**84 Misc 3d at 372} her parent against her wishes. The AFC also incorrectly compares the rights of a foster care youth who is over 18 with that of a freed child for adoption, where the parental rights have been severed, and with a child with no legal parent, as both who do not have a right to notice or the permanency hearing report. This proceeding is neither and as such, this AFC's argument is not persuasive.

The comparison of the purpose of a permanency hearing report to it being analogous to a family service plan meeting where ACS can plan with a child directly and does not need to include a parent as per their own protocol not subject to review as an "executive branch decision" is misplaced. The court recognizes the purpose of the transition plan directives indicated in the regulations, which is that when a "child will remain in foster care on or after the child's 18th birthday, the agency with case management, case planning or casework responsibility for the foster child must . . . develop[ ]" a plan "personalized at the direction of the child" and as "detailed as the foster child may elect." (See 18 NYCRR 430.12 [j].) However, when Family Court Act article 10-A was created, it stated its purpose was "to establish uniform procedures for permanency hearings for all children who are placed in foster care . . . [and] [i]t is meant to provide children placed out of their homes timely and effective judicial review that promotes permanency, safety and well-being in their lives." (See Family Ct Act § 1086.) Under that vein, it seems to view section 1089 as not distinguishing between a child over or below 18 when it refers to who is required to be served with the notice and copy of a permanency hearing report, which includes "the child's parent." (See Family Ct Act § 1089 [b] [1] [i].) Moreover, under section 1087 (a) a "child" is defined as a person "who has been freed for adoption or a person between the ages of eighteen and twenty-one who has consented to continuation in foster care or trial discharge status." (See Family Ct Act § 1087 [a] [emphasis added].)

The intent of the legislature to consider a parent's right to receive information about their child can also be gleaned from the fact that the permanency hearing report shall include information regarding not only the child's appropriate goal, but when the goal is placement in another planned permanent living arrangement, if the child is age 16 or older, the report is required to include "documentation of: (A) intensive, ongoing, and, as of the date of the hearing, unsuccessful efforts to return the child home . . . and (C) the compelling reasons for {**84 Misc 3d at 373}determining that it continues to not be in the best interests of the child to be returned home." (See Family Ct Act § 1089 [c] [1] [v] [emphasis added].)

While there may be no practical purpose to go against a child's wishes, especially when as here she is 19 years old, there is nothing on the record before the court indicating that Mr. D. has gone against P.D.'s wishes with the information provided to him by the agency, merely that some relatives may be badmouthing the child. The AFC argues that it may be against P.D.'s best interest to share information she doesn't want shared with her father. However, there was nothing submitted from a provider or social worker addressing how disclosure of information in the permanency hearing report would impact P.D.'s mental health or her best interest. Although this is a permanency hearing which is post-disposition, the court does consider Family Court [*3]Act § 1047 (b) as a way by which this court can exercise its discretion to withhold parts of the permanency hearing report that deals with P.D.'s medical information that would require her HIPAA consent. Consequently, ACS is to redact such medical information from the permanency hearing report.

The court understands the argument by the AFC that it doesn't make much sense a child can sign out of foster care without any notice to the parents, but if they stay in foster care, their parents are entitled to notice and a permanency hearing report. Moreover, the court is aware that historically at prior extension of placement hearings, parents were not parties and excluded from hearings. Perhaps if there is no objection by the parent, an AFC's request to not share the permanency hearing report with the parent could be granted. However, that is not the case here and this court was not provided with any cases for reference where this issue has been litigated and where it is established precedent. This court could not find any cases either. It's possible this is something the legislature will take on in the future. The AFC's arguments about the adverse public policy effects from any ruling that infringes on privacy of now an "adult child" such as being forced into homelessness are not persuasive, and are conjecture and inapposite in this case. In this case, the child is 19 years old and consents to foster care and the parent wants to be provided with what he is entitled under the black letter law in section 1089 (b) (1) (i)—notice and the permanency hearing report.{**84 Misc 3d at 374}

Wherefore, it is hereby ordered that notice and a copy of the permanency hearing report is to be served upon the respondent father, Mr. D., with ACS redacting from the report P.D.'s medical information that would require her HIPAA consent.

The objection by the AFC and ACS are noted for the record.