NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9178
SPONSOR: Lupardo TITLE OF BILL:
An act to amend the family court act, in relation to participation by
children in permanency hearings
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to require actual notice of and establish a
statutory right for the child to attend a permanency hearing regarding
the plan for a youth in foster case.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends Family Court Act § 1089(b(1) to add a new
paragraph (iii) to provide that if the youth is age ten or older, he or
she shall receive notice of the permanency hearing at least fourteen
days in advance.
Section 2 of the bill adds a new section 1090-a to the Family Court Act
to set forth the terms of participation for children over the age of 10
and less than 14 in order to:
*Provide such children with the right to participate and require that
such right may only be waived after a consultation with the child's
attorney;
*Allow the court to limit such participation after a best interest find-
ing and take into consideration certain factors including the child's
right to participate, and make alternative methods of participation
available;
*Require the attorney for the child to provide 10 days advanced notice
of the child's participation to the attorneys for all parties;
*Require and set forth the terms for an adjournment if necessary to
allow the child to participate;
*Set forth narrow exceptions to when a permanency hearing may be held
without prior meaningful consultation between the attorney for the child
and the child, including if the child lacks mental capacity; and,
*Clarify that such provisions shall not impact the rights of children
under the age of 10 or ages 14 and older to participate in permanency
hearings.
Section 3 of the bill sets an immediate effective date.
JUSTIFICATION:
This bill amends Chapter 573 of the Laws of 2015 to further clarify and
improve on the rights of children to participate in permanency hearings.
Children in foster care often feel disconnected - by adult decisions
that have not been fully explained at all to them. Involving children in
their critical life decisions helps build self-efficacy skills. Self-
efficacy - a person's own belief in his/her capabilities to organize and
execute the courses of action required to produce a given goal -
provides the building blocks for motivation, well-being and personal
accomplishments throughout one's life course. Giving children in foster
care the opportunity to share their feelings, ideas, needs and desires
will help them gain a sense of control over their lives, practice the
art of advocating for their well-being and develop the decision making
and negotiating skills needed to be self-reliant. Child involvement also
enhances the perception held by adults of children's competence, height-
ens adults' commitment and energy, makes adults feel more effective and
confident and makes adults more aware of the needs and concerns of chil-
dren. Seeing the children involved in the complex cases before the court
reminds all participants of the importance of their work.
The Child and Family Services Improvement Act of 2006 (P.L. 109-288),
requires courts conducting permanency hearings to review the foster care
status of a child and consult with each child in an age appropriate
manner regarding his or her permanency plan. In New York, this language
was inserted into FCA § 1089(d). Chapter 327 of the Laws of 2007
requires Family Court judges to consult with children in an age appro-
priate manner at all permanency hearings. Recent federal law, the
Preventing Sex Trafficking and Strengthening Families Act (P.L.113-183),
has strengthened this requirement requiring the court to ask the child
regarding the permanency outcome designated for him or her.
Since 2007, many states have amended statute and court rule to give
children in foster care actual notice of their permanency hearings and
the right to be present. As of March 2013, 28 states and the District of
Columbia give the child actual notice of the permanency hearings and 34
states give children the right to be present during permanency hearings.
New York does not.
In New York when a child is in foster care, the local social services
district must prepare and finalize the family services plan in consulta-
tion with the parents and with the child, if the child is ten years of
age or older. Social Services law requires the consultation to be done
in person, unless impracticable or harmful to the child. This provision
has been in effect since 1979. The only amendment has been to add the
ability to use technology if an in person meeting is impracticable. Just
recently, OCFS adopted a Bill of Rights for Children and Youth in Foster
Care which was developed in conjunction with youth in foster care. It
affirms the right of a child in foster care "to have a voice in deter-
mining my permanency goal, including, developing on my age or ability,
to participate in Service Plan Review meetings and Permanency Hearings,
to give input into the development and review of my services plan."
The National Council of Juvenile and Family Court Judges, in 2012,
adopted a policy that "children of all ages should be present in court
and attend each hearing, mediation, pretrial conference, and settlement
conference unless the judge decides it is not safe or appropriate."
Allowing children and youth to participate in their permanency hearings
allows them to feel more informed about their lives and to gain an
understanding of the process by which they have been removed from the
home and remain in foster care. Indeed, youth have a more positive feel-
ing about the fairness of their legal proceedings, which can be a
protective factor against criminal justice system involvement. Children
and youth gain an understanding of the decisions being made about their
lives, understanding of what is expected to occur, a sense of control
over their life and learn to advocate for themselves.
Learning self-advocacy is a crucial developmental goal. It builds crit-
ical self-efficacy skills - a person's own belief in his/her capability
to organize and execute the courses of action required to produce a
given goal which provide the building blocks for motivation, well-being
and personal accomplishments throughout one's life course. Through court
participation, children develop decision-making and negotiating skills.
Children and youth also learn to deal with setbacks.
A clear example of a youth who learned to advocate for herself is found
in Matter of Andrea D., where Andrea was in court and argued that her
local social services department be ordered to pay for driver's educa-
tion classes for her. The court held that Andrea "articulates that driv-
er's education the first step to a driver's license - is a key component
of self-sufficiency" and ordered the department to assist her in regis-
tering for and pay for the class.
Certain children may not wish to participate or may have an important
test or other event. This bill explicitly allows the children to deter-
mine their level of participation by consultation with his or her attor-
ney and the opportunity to waive the right to appear. Permitting the
attorney for the child to apply for adjournment guarantees that this
statutory right to appear in the hearing to determine his or her own
fate will be taken seriously by the courts and the parties.
Some jurisdictions across the state, including the 7th Judicial
District, Albany County Family Court, and the New York City Family
Court,have developed local court rules regarding the participation of
children and youth in their court proceedings. However, many courts have
not. This patchwork practice is neither uniform nor widespread, despite
years of training and advocacy. New York needs clear statutory rights to
notice of an upcoming permanency hearing and of participation to ensure
that all children and youth who wish to participate in the decision-mak-
ing process that determines the next six months of their lives know
about the opportunity and are given the preparation and assistance to
meaningfully participate.
PRIOR LEGISLATIVE HISTORY:
This is a new bill.
FISCAL IMPLICATIONS:
Undetermined.
EFFECTIVE DATE:
Immediately.
