Grants children over the age of 10 in foster care the right to attend the permanency hearing for such child

Summary of provisions

Section 1 amends Family Court Act § 1089(b)(1) to add a new paragraph (iii) to provide that if the youth is age ten or older, they shall be served the actual notice of permanency hearing. It establishes a statutory right for the youth to be present at the hearing, except upon a waiver of that right after consultation with the attorney for the child. The court shall grant an adjournment whenever necessary to protect the child's right to meaningfully participate in the hearing upon an application by the attorney for the child.

Section 2 is the enacting clause.

Existing law

Section 1089(b) does not provide a means for action service of the notice of permanency hearing on a youth in foster care. Although 1089(d) states that the proof adduced at the permanency hearing must include age-appropriate consultation with the child who is the subject of the permanency hearing, this language has not been construed as a statutory right to attend.

Justification

Children in foster care often feel disconnected - by adult decisions that have not been fully explained or explained at all to them. Involving children in their critical life decisions helps build self-efficacy skills. Self-efficacy - a person's own belief in his/her capabilities to organize and execute the courses of action required to produce a given goal - provides the building blocks for motivation, well-being and personal accomplishments throughout one's life course. Giving children in foster care the opportunity to share their feelings, ideas, needs and desires will help them gain a sense of control over their lives, practice the art of advocating for their well-being and develop the decision-making and negotiating skills needed to be self-reliant. Child involvement also enhances the perception held by adults of children's competence, heightens adults' commitment and energy, makes adults feel more effective and confident and makes adults more aware of the needs and concerns of children. Seeing the children involved in the complex cases before the court reminds all participants of the importance of their work.{i}

The United Nations Convention on the Rights of the Child, the first legally binding international instrument to recognize the application of the full array of human rights for children, recognizes the right

of a child to be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, where the who is capable of forming his or her own views. The Convention was ratified by 192 countries by 2005. Only the United States and Somalia Have failed to ratify the Convention.{ii}

The Child and Family Services Improvement Act of 2006 (P.L.109-288), requires courts conducting permanency hearings to review the foster care status of a child consult with each child, in an age-appropriate manner, regarding his or her permanency plan. In New York, this language was inserted into FCA § 1089(d). Chapter 327 of the Laws of 2007 requires Family Court judges to consult with children in an age-appropriate manner at all permanency hearings. Recent federal law, the Preventing Sex Trafficking and Strengthening Families Act (P.L. 113183), has strengthened this requirement requiring the court to ask the child regarding the permanency outcome designated for him or her.

Since 2007, many states have amended statute and court rule to give children in foster care actual notice of their permanency hearings and the right to be present. As of March 2013, 38 states and the District of Columbia give the child actual notice of the permanency hearings and 34 states give children the right to be present during permanency hearings.{iii} New York, does not.

In New York when a child is in foster care, the local social services department must prepare and finalize the family service plan in consultation with the parents and with the child, if the child is ten years of age or older.{iv} Social Services Law requires the consultation to be done in person, unless impracticable or harmful to the child. This provision has been in effect since 1979. The only amendment has been to add the ability to use technology if an in person meeting is impracticable.{v}

The National Council of Juvenile and Family Court Judges, in 2012, adopted a policy that "children of all ages should be present in court and attend each hearing, mediation, pretrial conference, and settlement conference unless the judge decides it is not safe or appropriate.{vi}

Allowing children and youth to participate in their permanency hearings allows them to feel more informed about their lives and to gain an understanding of the process by which they have been removed from home and remain in foster care.{vii} Indeed, youth have a more positive feelings about the fairness of their legal proceedings, which can be a protective factor against criminal justice system involvement.{viii} Children and youth gain an understanding of the decisions being made about their lives, understanding of what is expected to occur, a sense of control over their life and learn to advocate for themselves.

Learning self-advocacy is a crucial developmental goal. It builds critical self-efficacy skills - a person's own belief in his/her capabilities to organize and execute the courses of action required to produce a given goal - which provide the building blocks for motivation, well-being and personal accomplishments throughout one's life course. Through court participation, children develop

decision-making and negotiating skills. Children and youth also learn to deal with setbacks.

A clear example of a youth who learned to advocate for herself is found in Matter of Andrea D., where Andrea was in court and argued that her local social services department be ordered to pay for driver's education classes for her. The court held that Andrea "articulates that driver's education - the first step to a driver's license - is a key component of self-sufficiency" and ordered the department to assist her in registering for and pay for the class.{ix}

Certain children may not wish to participate or may have an important test or other event. The bill explicitly allows the child to determine his or her level of participation by consultation with his or her attorney and the opportunity to waive the right to appear. Permitting the attorney for the child to apply for adjournment guarantees that this statutory right to appear in the hearing to determine his or her own fate will be taken seriously by the courts and the parties.

Some jurisdictions across the state, including the 7th Judicial District, Albany County Family Court, and the New York City Family Court, have developed local court rules regarding the participation of children and youth in their court proceedings. However, many courts have not. This patchwork practice is neither uniform nor widespread, despite years of training and advocacy. New York needs clear statutory rights to notice of an upcoming permanency hearing and of participation to ensure that all children and youth who wish to participate in the decision- making process that determines the next six months of their lives know about the opportunity and are given the preparation and assistance to meaningfully participate.

As noted by the authors of the study, Midwest evaluation of the adult functioning of former foster youth. Outcomes at age 23 and 24, a study that followed a cadre of youth who were age 17 in foster care until age 26,

For most young people, the transition to adulthood is a gradual process (Furstenberg, Rumbaut & Settersten, 2005). Many continue to receive financial and emotional support from their parents or other family members well past age 18. This is in stark contrast to the situation confronting youth in foster care. Too old for the child welfare system but often unprepared to live as independent young adults, the approximately 29,500 foster youth who "age out" of care each year (U.S. Department of Health and Human Services, 2009) are expected to make it on their own long before the vast majority of their peers.{x}

Legislative history

None

Fiscal implications

Undetermined

Effective date

This act shall take effect on the first of January next succeeding the date on which it shall have become law.

{i} New York State Permanent Judicial Commission on Justice for Children. Tools for Engaging Children in their Court Proceedingsa. (2008) http://www.nycourts.gov/ip/justicefor children/PDF/PJCJC%Handbook%20- %20 Encouraging%20Child%20in%20Court.pdf accessed 12/29/14.

{ii} United Naqtions Office of Human Rights, Office of the High Commissioner Status of Rfatification of Human Rights Treaties Dashboard http:// indicators.ohchr.org/ accessed 12/29/14.

{iii} Engagement of Youth in Court. March 2013, American Bar Association Center on Children and the Law. http://www/ncsl.org/research/human- services/youth-voice-in-court.aspx accessed 12/29/14.

{iv} Social Services Law § 409-e(2).

{v} Chapter 113 of the Laws of 2010.

{vi} National Council of Juvenile and Family Court Judges Children In Court Policy Statement. (2012).http://www.ncjfcj.org/sites/default/ files/NCJFCJ%20CHILDREN%20IN%20COURT%20POLICY%STATEMENT FINAL 1-20-12. pdf accessed 12/29/14.

{vii} Home at Last.(2006)Foster youth participation in court: A national survey.My Voice, My Life,My Future; Youth Justice Board. (2007) Stand up, stand out; Recommendations to improve youth participation in New York City's permanency planning process New York, NY: Center for Court Innovation. http://www.courtinnovation.org/_uploads/documents/YJBreport%20final_ 2007 pdf.

{viii} Weisz, Wingrove & Faith-Slaker.(2008)Children and Procedural Justice. Court Review, 44,36-43

{ix} Matter of Andrea D., 25 Misc.3d 503,883 N.Y.S.2d 696 (Monroe Co.F.Ct.,2009)

{x} Courtney,M,Dworsky,A.,Lee,J.,& Raap,M.(2009) Midwest evaluation of the adult functioning of former foster youth: Outcomes at age 23 and 24. Chicago:Chapin Hall at the University of Chicago http://www.chapinhall.org/sites/default/files/Midwest Study ES Age 23 24.pdf accessed 12/30/14.