Opinion
Docket No. B-XXXXX-XX/18
03-30-2021
In the MATTER OF a Proceeding Pursuant to Social Services Law § 384-B, ANTHONY R., Jeremy D., Justine R., Paul R., Subject Children of a Proceeding to Terminate the Parental Rights of Torianne Z.-D., Jose R., Respondents.
Lauren Wenegrat, Esq., Brooklyn, NY, Attorney for the Petitioner, Chas Budnick, Esq., Saskia Valencia, Esq., Brooklyn Defender Services, Attorney for the Respondent father Sharyn Duncan, Esq., Brooklyn, NY Attorney for the Respondent mother, Robin Karasyk, Esq., Legal Aid Society, Juvenile Rights Practice, Attorney for the Children
Lauren Wenegrat, Esq., Brooklyn, NY, Attorney for the Petitioner, Chas Budnick, Esq., Saskia Valencia, Esq., Brooklyn Defender Services, Attorney for the Respondent father
Sharyn Duncan, Esq., Brooklyn, NY Attorney for the Respondent mother, Robin Karasyk, Esq., Legal Aid Society, Juvenile Rights Practice, Attorney for the Children
Jacqueline B. Deane, J.
Procedural History
This termination of parental rights ("TPR") proceeding against the Respondent mother, Torianne Z.-D., and the Respondent father, Jose R.s, pursuant to Section 384—b of the Social Services Law, began with the filing of the petition on August 31, 2018. The fact-finding hearing commenced on December 12, 2019 with the Petitioner, Good Shepherd Services, ("the Agency"), introducing documentary evidence. The trial continued on January 29, 2020 with the introduction of more documentary evidence by the Agency and the testimony of Case Planner Clark which was continued on February 27th and March 4th. Prior to the subsequent dates scheduled, as a result of the ongoing COVID-19 pandemic, the New York State Courts suspended in-person proceedings until further notice. In an effort to resolve these prolonged proceedings in a manner that serves the children's best interests and mitigates the risk posed by COVID-19, this Court sought to continue the fact-finding hearing virtually, to which Respondent father objected and, at the Court's direction, filed a Memorandum of Law in Support of his objection on September 24, 2020. Mr. R contends that conducting the continued TPR hearing by video would deprive him of his right to due process, compromise his right to the effective assistance of counsel, violate his right to equal protection of the law, and is incompatible with the gravity of the proceedings. On October 14th, the Agency filed a Memorandum of Law in Opposition to the Respondent father's application for an adjournment and the Attorney for the Children ("AFC") submitted a Memorandum of Law which did not affirmatively take a position but instead requested the Court conduct "a thorough inquiry regarding the virtual hearing process specific to the facts of this case." AFC's Memorandum of Law, dated October 14, 2020. The Respondent father then submitted a Memorandum of Law in Reply to the Agency's Opposition Memorandum on October 26th.
Admin. Order No. AO/68/20 (Mar. 16, 2020), available at https://nycourts.gov/whatsnew/pdf/AO-68-20.pdf. The administrative order stipulates that "[i]n addressing essential applications, judges will exercise judicial discretion in a manner designed to minimize court appearance and traffic in the courts." Id. at 3.
Specifically, the AFC stated that "[s]uch an inquiry should address, among other things: 1. How long is it expected or envisioned that the delay would be; 2. Parties' access to necessary technology; 3. The ability of counsel to communicate privately and extemporaneously with their clients; 4. Counsels' and parties' access to records; 5. What steps, if any, might be necessary to ensure the Court's ability to meaningfully assess the credibility of witnesses; 6. What steps, if any, are necessary to preserve the integrity of witness' testimony, e.g. instructions to ensure witnesses are not accessing or viewing anything they are not entitled to have access to while testifying; 7. How the Court will ensure a full and complete record of the proceeding is available; 8. Procedures to allow counsel to confront or impeach witnesses with records."
The underlying neglect cases were filed in October 2016 against the Respondent mother and in December 2016 against the Respondent father. The allegations against the Respondent mother were for drug use including the positive toxicologies for opiates for Paul and Anthony at birth, mental illness and failure to participate in treatment or take prescribed medication, and a prior finding of neglect for drug abuse and mental illness. The allegations against the Respondent father included failure to protect the children from the Respondent mother's neglectful behavior, prior findings for the same allegations, and permitting the Respondent mother to live in the home in violation of the order of protection.
ACS initially filed against both parents in October 2016 but ACS withdrew the petition against Mr. R but refiled a petition against him approximately two months later.
The neglect case against the Respondent mother is docketed as NN-26202-5/16.
The neglect case against the Respondent father is docketed as NN-29773-6/16.
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The subject children in this matter have been in foster care for a number of years: Paul and Anthony have been in foster care since they were discharged from the hospital after birth almost 4 ½ years ago in October 2016. Justine (7) and Jeremy (10) were initially released to the Respondent father but were removed after an emergency hearing upon ACS's allegations in March 2017 that the Respondent father was allowing the Respondent mother in the home in violation of the order of protection and that he was not properly caring for the children. Justin and Jeremy have remained in foster care since then.
On August 31, 2018, the Agency filed the instant TPR petition against both Respondent parents asserting that they permanently neglected the subject children.
Legal Analysis
The Fourteenth Amendment of the United States Constitution and Article I of the New York State Constitution guarantee that no person shall be deprived of life, liberty, or property, without due process of law. US Const amend. XIV ; NY Const art. I, § 6. Due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Matthews v. Eldridge, 424 U.S. 319, 333 (1976) ; see Matter of County of Chemung v Shah, 28 NY3d 244, 264 [2016] ; People v Baxin, 26 NY3d 6, 10 [2015] ; Matter of Tyk v New York State Educ. Dept., 19 AD3d 427, 429 [2d Dept 2005]. This TPR petition was filed more than four years ago; thus, the Respondents have had ample notice of the proceeding and the opportunity to fully prepare for the trial, which actually began prior to the public health crisis.
In People v Wrotten, the Court of Appeals held that, "[b]y enacting Judiciary Law 2-b(3), the Legislature has explicitly authorized the courts' use of innovative procedures where ‘necessary to carry into effect the powers and jurisdiction possessed by [the court],’ " and found the Supreme Court had the authority to utilize the two-way televised testimony of a complainant. People v Wrotten, 14 NY3d 33, 40 [2009]. See also Matter of Bagot v McClain, 148 AD3d 882, 883 [2d Dept 2017] (court held father's contention that he was denied due process due to faulty audio connection on video conference lacked merit). The COVID pandemic reached its one-year anniversary in New York City this month. During the past year, NYC Family Courts have greatly expanded and improved our ability to conduct all types of virtual proceedings in an effort to continue to serve the children and families whose cases are pending before the court. This Court, specifically, has a year's worth of experience virtually presiding over its own docket of weighty child protective matters, observing witnesses and making credibility determinations in numerous emergency hearings regarding the removal of children from their homes as well as contested fact-finding hearings concerning the existence of neglect or abuse allegedly suffered. In fact, this Court is currently engaged in several TPR trials in which counsel has not objected to proceeding virtually. The Court has developed procedures for the electronic sharing of proposed exhibits among counsel prior to trial, allowing for ample time for attorneys to discuss possible objections with their clients and prepare for the hearing in advance, as well as facilitating the Court's ability to promptly rule on issues of evidence and exhibit admissibility both prior to and during trial. At this time, the course of the pandemic is still uncertain and there is no stated timeline for the resumption of in-person proceedings. Meanwhile, Nathaniel has remained in foster care for all of his seven years of life with a family that seeks to provide him with legal permanency. His best interests require this Court to proceed with the fact-finding hearing in this case given that the current virtual capability of the court is sufficient to protect the parents' rights to due process and effective representation.
For these same reasons, numerous New York courts that have already addressed this same issue have ruled in favor of allowing trials to proceed virtually even in termination of parental rights proceedings. See Kamiyah C., B-25055-19, B-25058-19 (Fam. Ct., Jan. 25, 2021, Gruebel, J.) (court orders TPR fact finding to proceed and noting that "[t]hese children and all children in foster care are entitled to completion of this hearing, and permanency without any indefinite delay"); Ruth C., B-24285-17 (Fam. Ct., Jan. 25, 2021, Gruebel, J.) (court orders TPR dispositional hearing to continue virtually, finding that "adaptations made" were "sufficient" to allow the proceeding to continue "without compromising the due process rights of all parties and counsel"); In the Matter of ZHW, B-00148-18, (Fam. Ct., Jan. 5, 2021, Pels, J.) (ordering TPR dispositional hearing to proceed virtually, noting that, "[w]hile a virtual hearing is not a perfect substitute for in-person hearings, the constitutionality of virtual hearings does not depend on that."); In the Matter of Galarza, No. B-00552-9/14 (Fam. Ct. Aug. 24, 2020, Barnett, J.) (finding in a TPR that "[the children's] need for permanency outweighs the comparative inconvenience of proceeding virtually, particularly since it is unknown when the Court will fully re-open."). See also Bonilla v. New York, Claim No. 133141 (Ct. Cl. Jan. 22, 2021, Weinstein, J.) (ordering liability trial to proceed virtually); A.S. v N.S., 68 Misc 3d 767 [Sup Ct 2020] (court orders custody trial proceed virtually); C.C. v A.R., 69 Misc 3d 983, 984 [Sup Ct 2020] (court "determines that pursuant to Judiciary Law § 2-b (3) a court of competent jurisdiction has the authority to order a trial or hearing to proceed virtually over the objections of a party even where one of the remedies sought is criminal contempt."); Ciccone v One W. 64th St., Inc., 69 Misc 3d 585, 593 [Sup Ct 2020] (court orders hearing on attorneys' fees to proceed virtually, noting that "[a] hearing conducted virtually by videoconference will allow for cross-examination of witnesses and for both counsel and the court to assess the witnesses' demeanor and credibility through seeing them up close on-screen. Such a hearing may not be equivalent to hearing testimony and cross-examination in person. But it is more than adequate to ensure that both sides have a full opportunity to be heard.") (footnote omitted); Haydee F. v. ACS-Ny, 2020 NYLJ LEXIS 1700 (Fam. Ct. Nov. 16, 2020, Scheininger, Ref.) (court orders guardianship hearing to proceed virtually); Kevin M. v Alexander C., (Fam. Ct., Aug. 17, 2020, Toscano, S.M.) (court grants application for virtual proceeding on child support enforcement petition, finding "no prejudice in proceeding to a virtual trial" and "that delay of the enforcement petition does not serve the best interests of the children.").
Respondent mother argues that there is an increased risk of error in the outcome of virtual proceedings as the basis of her due process concerns. However, the studies she cites are at least ten to sixteen years old. As noted by Referee Scheininger in her decision allowing a guardianship hearing to proceed virtually, "[i]t goes without saying that the electronic testimony that was available in 2010 and earlier is not the electronic testimony that is available today. During COVID-19, courts across this country have become virtual, as have businesses, law firms, doctor's offices, schools and universities. People are relying on platforms such as Zoom, Skype for Business and Microsoft Teams to conduct multi-billion dollar deals, educate students, conduct hearings and save lives. We are able to rely on these platforms because they are easy to access and they work." Haydee F. at 11-12. Additionally, the studies cited by the Respondent mother do not address the unprecedented situation we are presented with today, namely a global pandemic that has greatly affected, among many other things, the ability of the court system to hold in-person proceedings. Although initially it was not clear how long the courthouse would be closed to the public, it has now been over one year of virtual operations and there is no indication as to when in person proceedings will recommence. Thus, virtual proceedings are now the norm in the New York City Family Courts. Thus, this Court has developed its ability to assess credibility electronically through numerous virtual appearances which is in stark contrast to the studies which address the atypical appearance of a witness on camera. This Court further notes that this particular case involves parties that it is familiar with; this will not be the first time that this judge encounters or observes them. This family's underlying neglect matter has been pending for over four years; thus this Court has had the opportunity to observe the parties in person over multiple court dates spanning this lengthy period of time. This scenario is also not one addressed in the studies cited by Respondent.
This Court is extremely mindful of the fundamental liberty interest at stake in termination of parental rights proceedings and the concomitant importance of the parent's right to due process and effective representation in these matters in particular. See generally Santosky v Kramer, 455 US 745, 753-54 [1982]. It is beyond cavil that parents have a profound interest in retaining the right to the custody and care of their children. Id. However, as stated by Judge Pels, in Matter of ZHW, supra, this Court is "satisfied that the fundamental aspects of due process, including testimony under oath, contemporaneous cross-examination, and the ability of the finder of fact and the parties to the proceeding to observe the demeanor of witnesses during their testimony can be met in a virtual proceeding."
Therefore, the Court will take various steps to ensure that this virtual proceeding replicates in-person proceedings as closely as possible and provides equal assurances of fairness. As Judge Dawson stated in A.S. v N.S., "[n]othing takes the place of in person contact but in these unprecedented times, Family Court must continue to meet the needs of its families." 68 Misc 3d at 768. The Court will ensure that Mr. R has access to the audiovisual technology necessary to see and hear all participants throughout the proceedings, if he wishes, and allow him to make notes of anything he wants to discuss with his attorney at a break. The Court will require that all witnesses at the hearing appear by video, not merely audio, and that arrangements are made either at the agency or the courthouse for any witness that does not have adequate access to the internet and/or technology for this purpose. The Court will also ensure witnesses are alone in the room where they are testifying and will instruct the witness regarding removing all physical or electronic documents from the witness's range of vision unless the witness is given an explicit direction to consult any document. The Court will allow frequent breaks during the proceeding for Respondent's counsel to consult privately with Mr. R prior to concluding any witness examination as well as at any other points during the proceeding that counsel or Mr. R request the opportunity to consult. Finally, the trial will be held in a virtual courtroom attended by a court reporter which will ensure that an accurate court record is maintained.
While Respondents have a fundamental interest in the custody and care of their child, the subject children's interests are of paramount importance and are better served by the proceedings re-commencing as soon as possible. See In the Matter of ZHW, B-00148-18, (Fam. Ct., Jan. 5, 2021, Pels, J.). Such course of action necessitates the utilization of videoconference technology to proceed remotely. "Live televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances." People v Wrotten, 14 NY3d 33, 40 [2009]. This Court finds that the exceptional circumstances of the COVID-19 pandemic warrant the exercise of such necessary procedures in this matter.
Accordingly, the Court denies the Respondent father's application for an adjournment of the fact-finding hearing on the TPR petition and orders that the proceedings continue virtually on the previously chosen adjourn date of April 28, 2021 at 12:00.