Review of new laws on NRP and children in court Margaret Burt, - - PDF document

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Review of new laws on NRP and children in court

Margaret Burt, Esq. July 2016

Children in Court for PHs

 On 12/22/15 the Governor signed Chap

573 of the Laws of 2015 which was effective immediately and stated that all children over 10 were to be noticed and had a right to attend their PH

 BUT THIS LAW is NOW SUPERCEDED BY

A NEW LAW – CHAPTER 14 of the Laws of 2016 –signed on March 21

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Children in Court for PHs

 DSS must notice all children over 10 years

• f ages to their permanency hearing. At

this point the child should get the same notice as is currently given to all parties. (perhaps there will be other notices that will be used as well)

 That means the notice but not the PH

report – should/will the AFC provide the PH report to the child?

Children in Court for PHs

 Youth over the age of 14 will have the

right to be present at ALL or PART of their PH – THEIR CHOICE. “PRESENT” can include in person, by phone, be electronic means, by “written statement” – THEIR CHOICE

 Youth over 10 but not yet 14 will be

noticed and will have right to SOME type

• f participation but the court can limit their

participation, DSS or respondent might so move and the court can on its own

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Children in Court

 Youth under 10 have no “right” to appear

but the AFC can argue for an appearance and a motion is not needed – court discretion if and how

 No one can require child of any age to

appear if the child doesn’t want to appear

 AFC MUST consult with all children over

10 about wanting to be at (each) PH AND AFC MUST ADVISE all attorneys and court at least TEN DAYS in advance if the child wants to attend and in what manner

Children in Court

Court consider factors in determining HOW 10,11,12,13 year olds can participate:

 impact that contact with others would

have on child

 nature of things to be discussed  emotional detriment to the child  child’s age and maturity level  Court can bifurcate the hearing, have

participation by phone, electronic means

• r written statement

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Children in Court

 Court shall grant an adjournment if

necessary to accommodate child’s wish to participate

 If attorney fails to notify everyone 10 days

in advance? Not grounds to deny child’s participation

 AFC can consent to PH where child is not

able to be consulted due to mental capacity based on expert opinion, child has runaway or child will not respond,

• ther good cause

Children in Court

 Court can make a “reasonable efforts”

finding even if adjourning for child to appear

 Permanency hearings must still be

completed within required 30 days of scheduled day certain

 Also review 16 OCFS ADM 08

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Children in Court

 Matter of Rebecca KK 61 AD3d 1035 (3rd

• Dept. 2009) – critical that court did not

consult with 14 year old child

 Matter of Dakota F., 92 AD3d 1097 (3rd

• Dept. 2012) error not ask AFC 6 year old

child’s position

 Matter of Julian P., 106 AD3d 1383 (3rd

• Dept. 2013) – error not ask AFC children’s

position, oldest was 6

Children in Court

 Matter of Alexus SS 125 AD3d 1141 (3rd

• Dept. 2015) – court should have directly

consulted with children who were “mature enough” (approx 7 and 4 years old) and not just the AFC

 Matter of Desirea F., 136 AD3d 1074 (3rd

• Dept. 2016) – critical of court for not

consulting with children who were 9 and 11

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What if DSS does not think child should come?

 Denise J. – Westchester Family Court

decision on 6/2/16: 16 year old with severe behavior, placed in congregate care facility in New Hampshire DSS thinks not at all in child’s BI to attend in person Judge says have to bring her unless AFC feels she can substitute judgment

Non Respondent Parent Bill “NRP” Bill – Effective 6/19/16!!

 A “parent” is someone legally recognized

as a parent – must be told of right to counsel, has right at removals/remands

 A “relative” is a person related but is not

a parent

 A person can be “suitable” as a placement

• ption and this is a non related person

who plays/played significant positive role with child or child’s family

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NRP Bill

 BIG changes to FCA §1017

DSS/ACS now must provide written list of placement options to all relatives using the OCA form – one of your won, too? DSS/ACS must now “report” to the court and all parties what they have done to seek all NRPs and this includes legally id’ed. PFR, pending paternity, mother has id’ed in written sworn statement, also relatives and suitable persons to seek placement as an alternative to foster care with others

NRP

 Court can order DSS/ACS to immediately

investigate any home of a NRP, relative or suitable person for purposes of possible placement of the child – no time frames in the law itself

 Court must check DV registry, sex offender

registry and Family Court database regarding any person who would be a resource for placement under FCA §§1017, 1054, 1056 - is this for everyone on your list?

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NRP Bill

 1017 TEMPORARY Placement Options:

• 1. NRP can be granted a temp Art. 6 (must

ONLY be temp and only if an Art. 6 petition has been filed ) or a new option called a “release” to a NRP (this new one not called a placement) under Art. 10

• 2. Relatives and suitable persons can be

granted temp Art. 6 (must ONLY be temp and only if an Art. 6 has been filed)

• r a “direct placement” under Art. 10

Issues

 Make sure you stress if man is being

named but is NOT legal parent – limits what he can do – can he be a “suitable person” until he is legal dad?

 NOTE – if “release” or “temp Art. 6” is the

temp order – NO PERM HEARING is set

 What should you do with any old temp

“1017 custody orders” to NRPs?

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NRP Bill

 All placement/release resources under

1017 then they must “submit to the court’s jurisdiction with respect to the child” as per terms and conditions the court sets such as allowing DSS/ACS home visits, making child available to DSS/ACS for parental visitation, appointments with service providers etc

 A temp Art. 6 - no “submit to jurisdiction”

but could contain orders court is permitted to order under a temp Art. 6

NRP Bill – Temp Options

 Stick to the definition – “release” to NRP is

“DSS eyes on the child” and Art. 6 is NOT – make sure court gets it right

 There is no word like “supervise” in the

law, it does NOT say DSS “supervises” the NRP on a release and certainly not on an

• Art. 6

 Will/Can the court “order” the NRP to do

things like a parenting class or a SA eval?

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NRP Bill

 New Dispo placement options:

Can issue a perm Art. 6 order (if Art. 6 petition pending) to a relative, suitable person or a NRP but CANNOT order DSS/ACS to supervise or provide any services if this is the order This changes the prior law which did allow the court to give the NRP Art. 6 custody and order DSS/ACS supervision of the RP

NRP Bill

 New dispo placement options:

Can “release” the child to the NRP for a year, can be extended once, would require NRP submit to court’s jurisdiction as it relates to the child and could at the same time order that the R/RP be provided with DSS/ACS supervision and services - no perm hearings Can still place the child with a relative or suitable person as an Art. 10 direct placement with ordered supervision and services and perm hearings

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NRP

 So – new options for the court re NRPs:

Order “release” of child to a NRP for a year and NRP submits to jurisdiction and services and supervision can be ordered for RP for a year or 2 (but who has custody of child after that?) OR Order perm Art. 6 custody to NRP and court and DSS/ACS step out of the picture – no supervision or services

Dispo Issues

 Again – question as to what DSS actually

does if court “releases” to NRP vis a vis the NRP – if this is with supervision of the RP, supervision is a concept which is understood but what about the NRP?

 What do you do now with cases where the

NRP has ongoing Art. 10 custody as part

• f the dispo and you are doing perm

hearings on this case?

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NRP Bill

 Clarification that an Art. 6 which is

pending with an Art. 10 can be resolved within the Art. 10 dispo or a perm hearing. If a parent objects to the Art. 6 petition that a non parent brings, the test will be extraordinary circumstances and then best interests of the child, FCA § 651 is followed for that portion of the hearing

NRP

 Can still release child to a RP and order

supervision and services for up to year but now can only extend that once more

 In dispo orders the court can order DSS to

send reports on progress and where dispo

• rders were consented to, DSS shall

prepare reports both 90 days after issuing and 60 days before the end of the order

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Supervision

All cases of supervision – if with a release or not are now limited to one year and then

• ne extension of one year and then that is

it What about supervision orders that you have now that are over 2 years? What if DSS does not want supervision to end?

Comments

 OCA forms are out – they MAY help with

your discussion with the court

 JI has a tape of me explaining this to the

Judges, AFCs can watch tape of me explaining this to them, I can come for a visit……..

 Don’t forget there is a new name for

“mental retardation” TPRs – “intellectual disability” TPRs – all case law still applies

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MORE QUESTIONS?

This is a lot more than I thought!