Opinion
B-XXXX-18
12-04-2019
Matter of A.C. and C.P.
Appearances by counsel: Maggie Seikaly, Esq., on behalf of the Onondaga County Department of Children and Family Services, Amanda McHenry, Esq., of counsel to the Hiscock Legal Aid Society, Syracuse, New York for the biological mother; James McGinty, Esq., of Syracuse, New York for the biological father; Karen Vedder, Esq., of Syracuse, New York for the foster parent; Tricia M. Dorn, Esq. as Attorney for the Children of Syracuse, New York.
Appearances by counsel: Maggie Seikaly, Esq., on behalf of the Onondaga County Department of Children and Family Services, Amanda McHenry, Esq., of counsel to the Hiscock Legal Aid Society, Syracuse, New York for the biological mother; James McGinty, Esq., of Syracuse, New York for the biological father; Karen Vedder, Esq., of Syracuse, New York for the foster parent; Tricia M. Dorn, Esq. as Attorney for the Children of Syracuse, New York. Michael L. Hanuszczak, J.
The issue before the Court is whether to allow parents and their counsel to appear for permanency hearings for children after their parental rights have been terminated. The subject child A. was removed from the care and custody of his biological mother Ms. A. P. on March 24, 2016. The child C. was removed from Ms. P. on April 14, 2016. A termination of parental rights petition was filed on May 4, 2018. After a lengthy fact-finding hearing, the Court issued a decision on June 6, 2019 finding that the biological parents had permanently neglected the children. The Court subsequently terminated the parental rights of the biological parents after a dispositional hearing by decision dated October 8, 2019 (Matter of A.C., 65 Misc 3d 1215(A) [Fam Ct, Onondaga County 2019]. The Court is aware that a notice of appeal of the termination of parental rights order has been filed by both biological parents.
In its decision terminating the rights of the biological parents, the Court scheduled the initial freed child permanency hearing for November 4, 2019, within 30 days as required by Family Court Act §1089(a). On that date, Ms. P. appeared with her counsel. Mr. C-V, the biological father, appeared without counsel. The Deputy County Attorney and the Attorney for the Children (AFC) objected to the parents and Ms. P.'s counsel being present for the permanency hearing. Counsel for Ms. P. advised the Court that she would submit a memorandum of law on the matter. The Court requested responses from the other counsel by November 27, 2019.
Ms. P.'s counsel submitted a memorandum of law on November 15, 2019 in support of allowing her and her client to be present in the courtroom for the permanency hearing. Deputy County Attorney Maggie Seikaly submitted a response on November 25, 2019 on behalf of the Onondaga County Department of Children and Family Services (DCFS) arguing that both Ms. P. and her attorney should be excluded. The Court heard oral argument from counsel on December 2, 2019, at which time both the Attorney for the Children and counsel for the foster mother advocated that neither parent be permitted to appear for the permanency hearing.
The Court has considered the oral arguments of counsel, the written memoranda of law and the all of the proceedings in this matter in making its decision. After due and careful deliberation, the Court makes the following determination:
It is well settled that "public access to court proceedings is strongly favored, both as a matter of constitutional law and as a statutory imperative" (Anonymous v Anonymous, 263 AD2d 341 [1st Dept 2000]). This right is not absolute and the courtroom may be closed when there are compelling reasons to support it, however (Matter of Herald Company, Inc. v Weisenberg, 89 AD2d 224 [4th Dept 1982]). The presumption in favor of access to court proceedings "is particularly subject to challenge where the interests of children are implicated" (In Re Kent v Kent, i29 AD3d 123 [1st Dept 2006]). The Court must balance the public's right to access to judicial proceedings "and the interest in protecting children from the possible harmful effects of disclosing harmful information to the public" (Matter of P.B. v C.C., 223 AD2d 294 [1st Dept 1996]).
The Family Court Act extends special protections for cases involving children. Pursuant to Family Court Act §1043, "the general public may be excluded from any hearing under this article and only such persons and the representatives of authorized agencies admitted thereto as have an interest in the case." Ms. P. has argued that Family Court Act §1043 does not apply to this action because permanency hearings are governed by Article 10-a, rather than Article 10. This argument is not viable, as Article 10-a does not contain any contrary provisions, and Family Court Act §1043 has been applied to other proceedings, including termination of parental rights proceedings under Social Services Law §384-b (See, Matter of Andrea B., 66 AD3d 770 [2nd Dept 2009]).
Section 205.4 of the Uniform Rules for the Family Court provides more specific guidance on when people may be excluded from the courtroom (22 NYCRR 205.4). This section provides that Family Court is open to the public, but that the "general public or any person may be excluded from a courtroom only if a judge presiding in the courtroom determines, on a case-by-case basis based upon supportive evidence, that such exclusion is warranted in that case" (22 NYCRR 205.4(b)). The Court must consider the following factors: whether the person is causing or likely to cause a disruption in the proceedings, whether the "presence of the person is objected to by one of the parties, including the attorney for the child, for a compelling reason," whether the privacy interests of individuals before the court and "the need for protection of the litigants, in particular, children" required that a person be excluded and whether there are less restrictive alternatives to exclusion available (Id.) The decision concerning whether to close a courtroom to the public is in the discretion of the Court (See, Matter of Gloria M., 96 AD3d 1060 [2nd Dept 2012]; Matter of Shawn P., 266 AD2d 907 [4th Dept 1999]).
The Court has weighed all of the factors outlined in 22 NYCRR 205.4. With respect to the first factor, the Court notes that Ms. P. has never been disruptive in any of the previous court proceedings with which she has been involved. She has always been respectful to the Court and the proceedings. As the Court in Matter of Ruben R., 219 AD2d 117 [1st Dept 1996], pointed out however, the mere presence of a non-party might be disruptive to the proceedings. In this case, DCFS is seeking to change the permanency plan goal to adoption, now that the children have been freed for adoption, and the permanency hearing would likely be focused on planning for the children to be adopted by their foster mother. Ms. P.'s presence could therefore become disruptive to the Court and the parties working toward that permanency plan goal. It could also have a chilling effect on the parties' willingness to openly discuss information about the children during the permanency hearing out of fear that Ms. P. would then have access to that information (See, Matter of Ruben R. at 120).
Secondly, the Court has considered whether Ms. P. and her counsel's presence is objected to by one of the parties for a compelling reason. The Court notes that all parties to the permanency hearing, DCFS, the foster mother and the Attorney for the Children, have objected to Ms. P.'s presence. Ms. P. argues that she is not the "general public" because she is the biological mother of the children. Since Ms. P.'s parental rights have been terminated, however, she no longer has any legal relationship to these children or these proceedings.
As counsel for the DCFS points out, Ms. P. lacks standing to participate in any subsequent permanency hearings regarding the children once her rights were terminated (Matter of Gena S., 101 AD3d 1593 [4th Dept 2012]; Matter of Sierra C., 77 AD3d 1132 [3rd Dept 2010]; Matter of April C., 31 AD3d 1200 [4th Dept 2006]). The Court notes that Family Court Act §1089-a does not provide for a biological parent to receive a copy of a permanency hearing report after children have been freed for adoption. While former foster parents who had the child for twelve months are entitled to notice (Family Court Act §1089(b)), there is no similar provision for parents whose rights have been terminated. Ms. P. similarly would not be entitled to any records involving the subject children once her rights were terminated (Family Court Act §166). Excluding Ms. P. from the courtroom for the permanency hearing would be consistent with statutory and case precedent that does not provide protections for biological parents of children who have been freed for adoption.
The Court finds that the parties have objected to Ms. P.'s presence for a compelling reason and that the children's right to privacy would be violated if she were allowed to appear at the permanency hearing. Consistent with the final factor of the Uniform Rules of the Family Court, the Court finds that the need for protection of the children in this case requires that Ms. P. and her counsel be excluded from the courtroom (22 NYCRR 205.4(b)(3)). Permanency hearings necessarily require an inquiry into the children's health and educational status. When the Court made a determination on October 8, 2019 to terminate Ms. P.'s parental rights, an obvious consequence was that Ms. P. would no longer be able to receive information about her children. Permitting her to appear at the permanency hearing would allow her access to information she would no longer be entitled to under the law. The privacy rights of the children would be compromised.
Ms. P.'s counsel stated that a basis for her to attend the permanency hearing was to obtain information about her children. Ms. P. argued that she has an appeal pending for the termination of parental rights determination, and excluding her from the courtroom would result in her not obtaining pertinent information regarding her children's health and well-being. The Court is solely concerned with the best interests of the children in this case. The Court finds that it would be a violation of these children's right to privacy to allow Ms. P., who has no legal right to the information or to the children, to appear at the permanency hearing in an attempt to gain such information. Allowing parents whose rights have been terminated to do so would have a deleterious effect on the ability of the DCFS, the foster parents and the Attorney for the Children to freely discuss the children and plan for their future. For example, it may prevent the AFC or other party from discussing a medical or school appointment for the children out of concern that Ms. P. could potentially access the children at those appointments.
The Court is also mindful that children are encouraged to participate and appear at their permanency hearings (See, Family Court Act §1090-a). Parents whose rights have been terminated have no right to visitation with their children (Matter of Hailey ZZ, 19 NY3d 422 [2012]). As the Deputy County Attorney pointed out during oral argument, allowing biological parents to be present at the permanency hearing could potentially result in contact with a biological child that is not allowed by statute and may not be in the best interests of the children.
Finally, the Court has considered whether there is a less restrictive option. In this case, Ms. P. is already aware of the children's names, dates of birth and appearance, so there is no less restrictive alternative to exclusion available (See, Matter of S.B.B.R. Children, 12 Misc 3d 1172(A) [Fam Ct, Kings County 2006]).
Ms. P. argues that sibling contact (with a child in foster care, but not freed for adoption) was likely to be discussed at the permanency hearing and therefore Ms. P. should be present. First, this argument is entirely speculative. There is no indication that sibling visits would necessarily be discussed at the permanency hearing and there is no application made to the Court's knowledge pursuant to Domestic Relations Law §71. Moreover, Ms. P. has had a full and fair opportunity to discuss sibling visits at the proceedings for the child A. that are still pending before this Court.
The Court finds that there is a compelling reason to not include the biological parents in the permanency hearing in this matter, namely the privacy interests of the children. The Court has determined, after a fact-finding trial and a dispositional hearing, that the parental rights of the parents should be terminated. It necessarily follows that neither parent should be permitted to access information through a court appearance involving the children, to which they are not a party.
The Court's decision is consistent with the purpose of Article 10 proceedings. As the Court in Matter of Katherine B., 189 AD2d 443 [2nd Dept 1993] discussed, closing the courtroom in certain instances to protect children is consistent with the purpose of Family Court, as outlined in Family Court Act §1011. This section provides that Article 10 of the Family Court Act was designed to "help protect children" and to "provide a due process of law for determining when the state, through its family court, may intervene against the wishes of the parent on behalf of a child so that [his or her] needs are properly met." In this case, the Court finds that excluding Ms. P. and her counsel from the courtroom helps to safeguard the children's physical, mental, and emotional well-being and therefore supports the purpose of the Family Court Act. Assuming that Mr. C-V is also continuing his request to be present for the permanency hearing regarding these children, his request is also denied for the reasons previously set forth. Dated: December 4, 2019 Syracuse, New York HON. MICHAEL L. HANUSZCZAK Family Court Judge