S T A T E   O F   N E W   Y O R K
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                                 6389--A
    Cal. No. 20

                            I N  S E N A T E

                             January 8, 2016
                               ___________

Introduced  by  Sen.  FELDER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules -- reported  favora-
  bly  from said committee, ordered to a third reading, passed by Senate
  and delivered to the Assembly, recalled, vote  reconsidered,  restored
  to  third  reading, amended and ordered reprinted, retaining its place
  in the order of third reading

AN ACT to amend the family court act, in relation  to  participation  by
  children in permanency hearings

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subparagraph (iii) of paragraph 1  of  subdivision  (b)  of
section  1089 of the family court act, as added by a chapter of the laws
of 2015 amending the family court act relating  to  permanency  hearings
for  youth  in  foster  care,  as  proposed in legislative bills numbers
S.5258-A and A.7679, is amended to read as follows:
  (iii) [if the child is age ten or older, the notice of the  permanency
hearing shall also be provided to the child. The child has a right to be
present at the hearing, except upon a waiver of that right after consul-
tation  with  the  attorney  for  the child. Upon an application by] 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].
  (1-A) IF THE CHILD IS AGE TEN OR OLDER, NO LATER  THAN  FOURTEEN  DAYS
BEFORE  THE  DATE CERTAIN FOR A PERMANENCY HEARING SCHEDULED PURSUANT TO
THIS SECTION, THE LOCAL SOCIAL SERVICES DISTRICT SHALL SERVE THE  NOTICE
OF THE PERMANENCY HEARING BY REGULAR MAIL UPON THE CHILD. NOTHING HEREIN
SHALL  BE  DEEMED  TO  PREVENT AN ATTORNEY FOR THE CHILD FROM CONSULTING
WITH THE CHILD ABOUT THE CHILD'S PARTICIPATION IN THE PERMANENCY HEARING
AS REQUIRED BY SECTION ONE THOUSAND NINETY-A OF THIS  ARTICLE  PRIOR  TO
THE SERVICE OF THE NOTICE REQUIRED PURSUANT TO THIS PARAGRAPH.
  S 2. The family court act is amended by adding a new section 1090-a to
read as follows:
  S  1090-A.  PARTICIPATION  OF  CHILDREN  IN THEIR PERMANENCY HEARINGS.
(A)(1) AS PROVIDED FOR IN SUBDIVISION (D) OF SECTION ONE THOUSAND EIGHT-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD10945-10-6

S. 6389--A                          2

Y-NINE OF THIS ARTICLE, THE PERMANENCY  HEARING  SHALL  INCLUDE  AN  AGE
APPROPRIATE CONSULTATION WITH THE CHILD.
  (2) EXCEPT AS OTHERWISE PROVIDED FOR IN THIS SECTION, CHILDREN AGE TEN
AND  OVER HAVE THE RIGHT TO PARTICIPATE IN THEIR PERMANENCY HEARINGS AND
A CHILD MAY ONLY WAIVE SUCH RIGHT FOLLOWING CONSULTATION WITH HIS OR HER
ATTORNEY.
  (3) NOTHING IN THIS SECTION SHALL BE DEEMED TO LIMIT THE ABILITY OF  A
CHILD  UNDER  THE  AGE OF TEN YEARS OLD FROM PARTICIPATING IN HIS OR HER
PERMANENCY HEARING. ADDITIONALLY, NOTHING  HEREIN  SHALL  BE  DEEMED  TO
REQUIRE  AN  ATTORNEY  FOR  THE CHILD TO MAKE A MOTION TO ALLOW FOR SUCH
PARTICIPATION. THE COURT SHALL HAVE  THE  DISCRETION  TO  DETERMINE  THE
MANNER AND EXTENT TO WHICH ANY PARTICULAR CHILD UNDER THE AGE OF TEN MAY
PARTICIPATE IN HIS OR HER PERMANENCY HEARING BASED ON THE BEST INTERESTS
OF THE CHILD.
  (B)(1)  A  CHILD  AGE FOURTEEN AND OLDER SHALL BE PERMITTED TO PARTIC-
IPATE IN PERSON IN ALL OR ANY PORTION OF HIS OR HER  PERMANENCY  HEARING
IN WHICH HE OR SHE CHOOSES TO PARTICIPATE.
  (2) FOR CHILDREN WHO ARE AT LEAST TEN YEARS OF AGE AND LESS THAN FOUR-
TEEN  YEARS  OF AGE, THE COURT MAY, ON ITS OWN MOTION OR UPON THE MOTION
OF THE LOCAL SOCIAL SERVICES DISTRICT, LIMIT THE  CHILD'S  PARTICIPATION
IN  ANY  PORTION  OF A PERMANENCY HEARING OR LIMIT THE CHILD'S IN PERSON
PARTICIPATION IN ANY PORTION OF A PERMANENCY HEARING UPON A FINDING THAT
DOING SO WOULD BE IN THE BEST INTERESTS OF THE CHILD. IN MAKING A DETER-
MINATION PURSUANT TO THIS PARAGRAPH THE COURT SHALL CONSIDER THE CHILD'S
ASSERTION OF HIS OR HER RIGHT  TO  PARTICIPATE  AND  MAY  ALSO  CONSIDER
FACTORS  INCLUDING,  BUT  NOT  LIMITED  TO, THE IMPACT THAT CONTACT WITH
OTHER PERSONS WHO MAY ATTEND THE PERMANENCY HEARING WOULD  HAVE  ON  THE
CHILD,  THE  NATURE  OF  THE  CONTENT ANTICIPATED TO BE DISCUSSED AT THE
PERMANENCY HEARING, WHETHER ATTENDING THE HEARING WOULD CAUSE  EMOTIONAL
DETRIMENT  TO THE CHILD, AND THE CHILD'S AGE AND MATURITY LEVEL.  IF THE
COURT DETERMINES THAT LIMITING A CHILD'S IN PERSON PARTICIPATION  IS  IN
HIS  OR  HER BEST INTERESTS, THE COURT SHALL MAKE ALTERNATIVE METHODS OF
PARTICIPATION AVAILABLE, WHICH MAY INCLUDE  BIFURCATING  THE  PERMANENCY
HEARING, PARTICIPATION BY TELEPHONE OR OTHER AVAILABLE ELECTRONIC MEANS,
OR THE ISSUANCE OF A WRITTEN STATEMENT TO THE COURT.
  (C)  EXCEPT AS OTHERWISE PROVIDED FOR IN THIS SECTION, A CHILD WHO HAS
CHOSEN TO PARTICIPATE IN HIS OR HER PERMANENCY HEARING SHALL CHOOSE  THE
MANNER  IN  WHICH HE OR SHE SHALL PARTICIPATE, WHICH MAY INCLUDE PARTIC-
IPATION IN PERSON, BY TELEPHONE OR AVAILABLE ELECTRONIC  MEANS,  OR  THE
ISSUANCE OF A WRITTEN STATEMENT TO THE COURT.
  (D)(1)  FOR  CHILDREN  WHO  ARE AGE TEN AND OVER, THE ATTORNEY FOR THE
CHILD SHALL CONSULT WITH THE CHILD REGARDING  WHETHER  THE  CHILD  WOULD
LIKE TO ASSERT HIS OR HER RIGHT TO PARTICIPATE IN THE PERMANENCY HEARING
AND  IF  SO,  THE  EXTENT  AND  MANNER  IN WHICH HE OR SHE WOULD LIKE TO
PARTICIPATE.
  (2) THE ATTORNEY FOR THE CHILD SHALL  NOTIFY  THE  ATTORNEYS  FOR  ALL
PARTIES  AND  THE  COURT  AT  LEAST TEN DAYS IN ADVANCE OF THE SCHEDULED
HEARING WHETHER OR NOT THE CHILD  IS  ASSERTING  HIS  OR  HER  RIGHT  TO
PARTICIPATE,  AND  IF  SO,  THE  MANNER IN WHICH THE CHILD HAS CHOSEN TO
PARTICIPATE.
  (3) (I) THE COURT SHALL GRANT AN  ADJOURNMENT  WHENEVER  NECESSARY  TO
ACCOMMODATE THE RIGHT OF A CHILD TO PARTICIPATE IN HIS OR HER PERMANENCY
HEARING IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.
  (II) NOTWITHSTANDING PARAGRAPH TWO OF THIS SUBDIVISION, THE FAILURE OF
AN  ATTORNEY FOR THE CHILD TO NOTIFY THE COURT OF THE REQUEST OF A CHILD
AGE TEN OR OLDER TO PARTICIPATE IN HIS OR HER PERMANENCY  HEARING  SHALL

S. 6389--A                          3

NOT  BE  GROUNDS  TO PREVENT SUCH CHILD FROM PARTICIPATING IN HIS OR HER
PERMANENCY HEARING UNLESS A FINDING TO LIMIT THE  CHILD'S  PARTICIPATION
IS  MADE  IN  ACCORDANCE  WITH  PARAGRAPH TWO OF SUBDIVISION (B) OF THIS
SECTION.
  (4)  NOTWITHSTANDING  ANY OTHER PROVISION OF LAW TO THE CONTRARY, UPON
THE CONSENT OF THE ATTORNEY FOR THE CHILD,  THE  COURT  MAY  PROCEED  TO
CONDUCT  A  PERMANENCY  HEARING  IF  THE  ATTORNEY FOR THE CHILD HAS NOT
CONDUCTED A MEANINGFUL CONSULTATION WITH THE CHILD REGARDING HIS OR  HER
PARTICIPATION IN THE PERMANENCY HEARING IF THE COURT FINDS THAT:
  (I)  THE  CHILD LACKS THE MENTAL CAPACITY TO CONSULT MEANINGFULLY WITH
HIS OR HER ATTORNEY AND CANNOT UNDERSTAND THE NATURE AND CONSEQUENCES OF
THE PERMANENCY HEARING AS A RESULT OF A SIGNIFICANT COGNITIVE LIMITATION
AS DETERMINED BY A HEALTH OR MENTAL HEALTH PROFESSIONAL  OR  EDUCATIONAL
PROFESSIONAL  AS PART OF A COMMITTEE ON SPECIAL EDUCATION AND SUCH LIMI-
TATION IS DOCUMENTED IN THE  COURT  RECORD  OR  THE  PERMANENCY  HEARING
REPORT;
  (II) THE ATTORNEY FOR THE CHILD HAS MADE DILIGENT AND REPEATED EFFORTS
TO  CONSULT  WITH  THE  CHILD  AND  THE  CHILD  WAS EITHER UNRESPONSIVE,
UNREACHABLE, OR DECLINED TO CONSULT WITH HIS OR HER ATTORNEY;  PROVIDED,
HOWEVER  THAT  THE  FAILURE OF A FOSTER PARENT OR AGENCY TO COOPERATE IN
MAKING THE CHILD REACHABLE OR AVAILABLE SHALL NOT BE GROUNDS TO  PROCEED
WITHOUT CONSULTING WITH THE CHILD;
  (III)  AT  THE  TIME  CONSULTATION WAS ATTEMPTED, THE CHILD WAS ABSENT
WITHOUT LEAVE FROM FOSTER CARE; OR
  (IV) DEMONSTRATIVE EVIDENCE THAT OTHER GOOD CAUSE EXISTS AND CANNOT BE
ALLEVIATED IN A TIMELY MANNER.
  (E) IF AN ADJOURNMENT IS GRANTED PURSUANT TO PARAGRAPH THREE OF SUBDI-
VISION (D) OF THIS SECTION, THE COURT MAY, UPON ITS OWN MOTION  OR  UPON
THE  MOTION  OF  ANY PARTY OR THE ATTORNEY FOR THE CHILD, MAKE A FINDING
THAT REASONABLE  EFFORTS  HAVE  BEEN  MADE  TO  EFFECTUATE  THE  CHILD'S
APPROVED PERMANENCY PLAN AS SET FORTH IN SUBPARAGRAPH (III) OF PARAGRAPH
TWO OF SUBDIVISION (D) OF SECTION ONE THOUSAND EIGHTY-NINE OF THIS ARTI-
CLE; SUCH FINDING SHALL BE MADE IN A WRITTEN ORDER.
  (F)   NOTHING  IN  THIS  SECTION  SHALL  CONTRAVENE  THE  REQUIREMENTS
CONTAINED IN SUBPARAGRAPH (II) OF PARAGRAPH ONE OF  SUBDIVISION  (A)  OF
SECTION  ONE  THOUSAND  EIGHTY-NINE  OF THIS ARTICLE THAT THE PERMANENCY
HEARING BE COMPLETED WITHIN THIRTY DAYS OF THE SCHEDULED DATE CERTAIN.
  (G) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO COMPEL A  CHILD  WHO
DOES NOT WISH TO PARTICIPATE IN HIS OR HER PERMANENCY HEARING TO DO SO.
  S  3.  This  act  shall  take  effect on the same date and in the same
manner as a chapter of the laws of 2015 amending the  family  court  act
relating to permanency hearings for youth in foster care, as proposed in
legislative  bills  numbers  S.5258-A and A.7679, takes effect; provided
however that section two of this act shall take effect on the  ninetieth
day after it shall have become a law.