§ 1090-A — Participation of children in their permanency hearings

New York § 1090-A

• Jurisdiction: New York
• Law FCT: Family Court Act
• Art. 10-A: Permanency Hearings For Children Placed Out of Their Homes

Text

§ 1090-a. Participation of children in their permanency hearings.\n(a)(1) As provided for in subdivision (d) of section one thousand\neighty-nine of this article, the permanency hearing shall include an age\nappropriate consultation with the child.\n (2) Except as otherwise provided for in this section, children age ten\nand over have the right to participate in their permanency hearings and\na child may only waive such right following consultation with his or her\nattorney.\n (3) Nothing in this section shall be deemed to limit the ability of a\nchild under the age of ten years old from participating in his or her\npermanency hearing. Additionally, nothing herein shall be deemed to\nrequire an attorney for the child to make a motion to allow for such\nparticipation. The court shall have the discretion to determine the\nmanner and extent to which any particular child under the age of ten may\nparticipate in his or her permanency hearing based on the best interests\nof the child.\n (b)(1) A child age fourteen and older shall be permitted to\nparticipate in person in all or any portion of his or her permanency\nhearing in which he or she chooses to participate.\n (2) For children who are at least ten years of age and less than\nfourteen years of age, the court may, on its own motion or upon the\nmotion of the local social services district, limit the child's\nparticipation in any portion of a permanency hearing or limit the\nchild's in person participation in any portion of a permanency hearing\nupon a finding that doing so would be in the best interests of the\nchild. In making a determination pursuant to this paragraph the court\nshall consider the child's assertion of his or her right to participate\nand may also consider factors including, but not limited to, the impact\nthat contact with other persons who may attend the permanency hearing\nwould have on the child, the nature of the content anticipated to be\ndiscussed at the permanency hearing, whether attending the hearing would\ncause emotional detriment to the child, and the child's age and maturity\nlevel. If the court determines that limiting a child's in person\nparticipation is in his or her best interests, the court shall make\nalternative methods of participation available, which may include\nbifurcating the permanency hearing, participation by telephone or other\navailable electronic means, or the issuance of a written statement to\nthe court.\n (c) Except as otherwise provided for in this section, a child who has\nchosen to participate in his or her permanency hearing shall choose the\nmanner in which he or she shall participate, which may include\nparticipation in person, by telephone or available electronic means, or\nthe issuance of a written statement to the court.\n (d)(1) For children who are age ten and over, the attorney for the\nchild shall consult with the child regarding whether the child would\nlike to assert his or her right to participate in the permanency hearing\nand if so, the extent and manner in which he or she would like to\nparticipate.\n (2) The attorney for the child shall notify the attorneys for all\nparties and the court at least ten days in advance of the scheduled\nhearing whether or not the child is asserting his or her right to\nparticipate, and if so, the manner in which the child has chosen to\nparticipate.\n (3) (i) The court shall grant an adjournment whenever necessary to\naccommodate the right of a child to participate in his or her permanency\nhearing in accordance with the provisions of this section.\n (ii) Notwithstanding paragraph two of this subdivision, the failure of\nan attorney for the child to notify the court of the request of a child\nage ten or older to participate in his or her permanency hearing shall\nnot be grounds to prevent such child from participating in his or her\npermanency hearing unless a finding to limit the child's participation\nis made in accordance with paragraph two of subdivision (b) of this\nsection.\n (4) Notwithstanding any other provision of law to the contrary, upon\nthe consent of the attorney for the child, the court may proceed to\nconduct a permanency hearing if the attorney for the child has not\nconducted a meaningful consultation with the child regarding his or her\nparticipation in the permanency hearing if the court finds that:\n (i) The child lacks the mental capacity to consult meaningfully with\nhis or her attorney and cannot understand the nature and consequences of\nthe permanency hearing as a result of a significant cognitive limitation\nas determined by a health or mental health professional or educational\nprofessional as part of a committee on special education and such\nlimitation is documented in the court record or the permanency hearing\nreport;\n (ii) The attorney for the child has made diligent and repeated efforts\nto consult with the child and the child was either unresponsive,\nunreachable, or declined to consult with his or her attorney; provided,\nhowever that the failure of a foster parent or agency to cooperate in\nmaking the child reachable or available shall not be grounds to proceed\nwithout consulting with the child;\n (iii) At the time consultation was attempted, the child was absent\nwithout leave from foster care; or\n (iv) Demonstrative evidence that other good cause exists and cannot be\nalleviated in a timely manner.\n (e) If an adjournment is granted pursuant to paragraph three of\nsubdivision (d) of this section, the court may, upon its own motion or\nupon the motion of any party or the attorney for the child, make a\nfinding that reasonable efforts have been made to effectuate the child's\napproved permanency plan as set forth in subparagraph (iii) of paragraph\ntwo of subdivision (d) of section one thousand eighty-nine of this\narticle; such finding shall be made in a written order.\n (f) Nothing in this section shall contravene the requirements\ncontained in subparagraph (ii) of paragraph one of subdivision (a) of\nsection one thousand eighty-nine of this article that the permanency\nhearing be completed within thirty days of the scheduled date certain.\n (g) Nothing in this section shall be construed to compel a child who\ndoes not wish to participate in his or her permanency hearing to do so.\n