Relates to evidence in permanency proceedings in the family court

This measure would amend the Family Court Act in relation to the eviden- tiary rules to be applicable in Article 10 and 10-A proceedings.

Prior to enactment of landmark permanency legislation in 2005 (L. 2005, c. 3), permanency hearings - and their predecessors, hearings to extend child protective placements, to review voluntary foster care placements and to review cases of children freed for adoption - were commenced by the filing of sworn petitions. As pleadings, these petitions were auto- matically part of the records of the proceedings that were subject to review on appeal. Additionally, hearsay evidence was admissible in these hearings, pursuant to section 1046(c) of the Family Court Act, which required that evidence be competent, not simply material and relevant, only for child protective fact-finding hearings. In disposition and all post-dispositional proceedings, evidence need only be material and rele- vant. Section 1046(a), which applied to all child protective proceedings extensions of placement, permanency hearings and freed-child reviews, contained additional provisions important for permanency hearings, including, inter alia, provisions permitting entry into evidence of: (i) certified hospital and social service records of public and private agencies where Family Court determined that a proper foundation had been established, and (ii) a child's hearsay statements to a third party regarding child abuse or neglect; and precluding assertion of spousal, physician, rape crisis counselor, social worker and psychologist privi- leges to exclude otherwise-admissible evidence.

While simplifying permanency proceedings and to provide one unified article (Family Court Act Article 10-A) consolidating all applicable provisions, the 2005 legislation inadvertently has created difficulties.

Since section 1046 of the Family Court Act only explicitly applies to proceedings under Article 10 of the Act, its provisions have not been extended to apply to permanency hearings under Article 10-A of the Act. There have been cases in which therapists' reports, which would have been admitted without question in pre-2005 proceedings, have been denied admissibility, and there have been cases in which courts have taken the position that, in the absence of a statutory provision applying section 1046(c) of the Family Court Act to permanency hearings under Article 10-A, only evidence that is competent may be admitted in permanency hearings. Such limitations cripple the permanency hearing process, preventing the courts from exercising the broad responsibilities imposed upon them by the 2005 legislation, as well as by the federal and New York State Adoption and Safe Families Acts (Public Law 105-89; L.1999,

c. 7). Family Court must make findings regarding the best interests, safety needs of and appropriate permanency goal for children and may thus need to determine, among other issues, what progress parents have made in treatment programs and in other efforts to achieve reunification with their children; what "reasonable effort" agencies have made in furthering reunification or other permanency plans; how children are doing in school and whether special needs they may have are being met and, in the case of children 14 years of age and older, what transi- tional services may be appropriate; and what the facts and circumstances may have been in instances in which they have withheld their consents to adoption. These determinations, as in dispositional hearings in child protective proceedings, may well require admission of social service and clinical records, letters from programs, follow-up progress reports, reports of statements of children regarding abuse and neglect and other evidence that would be admissible if subdivisions (a) and (c) of section 1046 of the Family Court Act were still applicable to these proceedings. Indeed, the required elements of permanency reports delineated in section 1089(c) of the Family Court Act inevitably involve hearsay. Additionally, with Family Court retaining continuous jurisdiction over the cases, the Court may need to convene follow-up proceedings and entertain requests for interim relief in between permanency hearings that may be based upon communications from programs, agencies or clini- cians that may constitute reliable hearsay but may not rise to the level of competent evidence.

We propose this measure to provide a simple solution to these difficul- ties. The measure would amend section 1046 of the Family Court Act to make it explicitly applicable to proceedings under Article 10-A, as well as Article 10, of the Act, and would make a corresponding amendment to section 1089 of the Act incorporating subdivisions (a) and (c) of section 1046 into Article 10-A by reference. Further, the measure would clarify that material and relevant evidence would be admissible in permanency hearings.

With the protections provided in Article 10-A - continuous represen- tation of parents and children, requirements for provision of permanency reports to all counsel, notice and rights to be heard by foster parents and relatives caring for children and the "one family/one judge" approach to the assignment of cases - the due process rights of all parties to test the reliability of all evidence presented, including permanency reports and any other documents and testimony, would be protected. Parties could call the makers of reports to testify, to object to Family Court according weight to portions of the report or hearsay evidence that may be unreliable, to object to any evidence not meeting the materiality or relevance requirements and to present witnesses and documents of their own in order to refute or amplify issues presented by petitioner agencies in permanency reports and in their direct cases. So, too, would the appellate rights of all parties be protected by providing that the appellate courts would have the bene- fit of a full record containing all of the evidence relied upon by the Family Court. Enactment of this measure is essential to realization of the explicit purposes of Article 10-A of the Family Court Act as

expressed in section 1086 of the Act, i.e., to establish "uniform proce- dures" in order "to provide children placed out of their homes timely and effective judicial review that promotes permanency, safety and well- being in their lives."

This measure, which would have no fiscal impact upon the State, would take effect 60 days after becoming a law.

2008 LEGISLATIVE HISTORY: S.7343 (Passed Senate).