N.Y. Family Court Act § 1090-a: Participation of children in their permanency hearings

§ 1090-a. Participation of children in their permanency hearings.

(a)(1) As provided for in subdivision (d) of section one thousand

eighty-nine of this article, the permanency hearing shall include an age

appropriate consultation with the child.

(2) Except as otherwise provided for in this section, children age ten

and over have the right to participate in their permanency hearings and

a child may only waive such right following consultation with his or her

attorney.

(3) Nothing in this section shall be deemed to limit the ability of a

child under the age of ten years old from participating in his or her

permanency hearing. Additionally, nothing herein shall be deemed to

require an attorney for the child to make a motion to allow for such

participation. The court shall have the discretion to determine the

manner and extent to which any particular child under the age of ten may

participate in his or her permanency hearing based on the best interests

of the child.

(b)(1) A child age fourteen and older shall be permitted to

participate in person in all or any portion of his or her permanency

hearing in which he or she chooses to participate.

(2) For children who are at least ten years of age and less than

fourteen years of age, the court may, on its own motion or upon the

motion of the local social services district, limit the child's

participation in any portion of a permanency hearing or limit the

child's in person participation in any portion of a permanency hearing

upon a finding that doing so would be in the best interests of the

child. In making a determination pursuant to this paragraph the court

shall consider the child's assertion of his or her right to participate

and may also consider factors including, but not limited to, the impact

that contact with other persons who may attend the permanency hearing

would have on the child, the nature of the content anticipated to be

discussed at the permanency hearing, whether attending the hearing would

cause emotional detriment to the child, and the child's age and maturity

level. If the court determines that limiting a child's in person

participation is in his or her best interests, the court shall make

alternative methods of participation available, which may include

bifurcating the permanency hearing, participation by telephone or other

available electronic means, or the issuance of a written statement to

the court.

(c) Except as otherwise provided for in this section, a child who has

chosen to participate in his or her permanency hearing shall choose the

manner in which he or she shall participate, which may include

participation in person, by telephone or available electronic means, or

the issuance of a written statement to the court.

(d)(1) For children who are age ten and over, the attorney for the

child shall consult with the child regarding whether the child would

like to assert his or her right to participate in the permanency hearing

and if so, the extent and manner in which he or she would like to

participate.

(2) The attorney for the child shall notify the attorneys for all

parties and the court at least ten days in advance of the scheduled

hearing 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.

(3) (i) The court shall grant an adjournment whenever necessary to

accommodate the right of a child to participate in his or her permanency

hearing in accordance with the provisions of this section.

(ii) Notwithstanding paragraph two of this subdivision, the failure of

an attorney for the child to notify the court of the request of a child

age ten or older to participate in his or her permanency hearing shall

not be grounds to prevent such child from participating in his or her

permanency hearing unless a finding to limit the child's participation

is made in accordance with paragraph two of subdivision (b) of this

section.

(4) Notwithstanding any other provision of law to the contrary, upon

the consent of the attorney for the child, the court may proceed to

conduct a permanency hearing if the attorney for the child has not

conducted a meaningful consultation with the child regarding his or her

participation in the permanency hearing if the court finds that:

(i) The child lacks the mental capacity to consult meaningfully with

his or her attorney and cannot understand the nature and consequences of

the permanency hearing as a result of a significant cognitive limitation

as determined by a health or mental health professional or educational

professional as part of a committee on special education and such

limitation is documented in the court record or the permanency hearing

report;

(ii) The attorney for the child has made diligent and repeated efforts

to consult with the child and the child was either unresponsive,

unreachable, or declined to consult with his or her attorney; provided,

however that the failure of a foster parent or agency to cooperate in

making the child reachable or available shall not be grounds to proceed

without consulting with the child;

(iii) At the time consultation was attempted, the child was absent

without leave from foster care; or

(iv) Demonstrative evidence that other good cause exists and cannot be

alleviated in a timely manner.

(e) If an adjournment is granted pursuant to paragraph three of

subdivision (d) of this section, the court may, upon its own motion or

upon the motion of any party or the attorney for the child, make a

finding that reasonable efforts have been made to effectuate the child's

approved permanency plan as set forth in subparagraph (iii) of paragraph

two of subdivision (d) of section one thousand eighty-nine of this

article; such finding shall be made in a written order.

(f) Nothing in this section shall contravene the requirements

contained in subparagraph (ii) of paragraph one of subdivision (a) of

section one thousand eighty-nine of this article that the permanency

hearing be completed within thirty days of the scheduled date certain.

(g) Nothing in this section shall be construed to compel a child who

does not wish to participate in his or her permanency hearing to do so.