Opinion
05-30-2024
In the MATTER OF PARVATI D., Appellant, A Child Under Eighteen Years of Age, etc., Roman D., Respondent–Respondent, v. Administration for Children’s Services, Petitioner-Respondent.
Twyla Carter, The Legal Aid Society, New York (Claire V. Meritine of counsel), for appellant. Anne Reiniger, New York, for Roman D., respondent.
Twyla Carter, The Legal Aid Society, New York (Claire V. Meritine of counsel), for appellant.
Anne Reiniger, New York, for Roman D., respondent.
Moulton, J.P., Scarpulla, Shulman, Higgitt, O’Neill Levy, JJ.
Order, Family Court, Bronx County (Fiordaliza A. Rodriguez, J.), entered on or about September 25, 2023, which denied the subject child’s application to preclude respondent father from receiving notice of her permanency hearings and obtaining a copy of the permanency hearing reports, unanimously affirmed, without costs. [1] The appeal is timely because there is no indication that the order was served on the Attorney for the Child by any of the methods authorized by the statute (see Family Court Act § 1113; Matter of Grayson S. [Thomas S.], 209 A.D.3d 1309, 1311, 175 N.Y.S.3d 825 [4th Dept. 2022]).
As to the merits, Family Court Act § 10–A defines a child as an individual who consented to remain in foster care after turning 18 years old (Family Ct Act § 1087[a]; see also Family Ct Act § 1055[e]). Further, Family Court Act provides for an initial permanency hearing within eight months of a child’s removal from the home, and permanency hearings every six months thereafter (Family Ct Act § 1089[a][2–3]). Before the permanency hearing, the Administration for Children’s Services (ACS) must prepare a permanency hearing report, which must include, among other things, the child’s current permanency goal as well as his or her current health status, any medical conditions or mental health diagnoses, education placement, and any additional services the child needs or receives (Family Ct Act § 1089[b], [c][1]).
The statute further provides that unless parental rights have been terminated or surrendered, a child’s parent is considered a party to the permanency proceeding and is entitled to receive a notice of the hearing and a permanency report before a hearing (Family Ct Act § 1089[b][1][i]; 22 NYCRR 205.17[c]).
[2] Family Court properly concluded that the statutory language of Family Court Act § 1089(b)(1)(i) is unambiguous: A respondent parent whose parental rights were not surrendered or terminated is considered a party to a permanency proceeding and is entitled to notices and reports, notwithstanding the lack of consent by a child who opts to remain in foster care after turning 18 years old (see generally Matter of Luongo v. Records Access Officer, Civilian Complaint Review Bd., 150 A.D.3d 13, 19, 51 N.Y.S.3d 46 [1st Dept. 2017], lv denied 30 N.Y.3d 908, 2017 WL 6459568 [2017] ["[s]tatutes should be interpreted in a manner designed to effectuate the legislature’s intent, construing clear and unambiguous statutory language so as to give effect to the plain meaning of the words used"]). Moreover, unlike Family Court Act § 1089(b)(2), which states that the court may dispense with notice to certain individuals if it would be against the best interests of a child, Family Court Act § 1089(b)(1)(i) contains no such exception, thus creating a "strong presumption that the Legislature intended none" (Matter of Jefry H., 102 A.D.3d 132, 137, 955 N.Y.S.2d 90 [2d Dept. 2012], citing Matter of Pokoik v. Department of Health Servs., County of Suffolk, 72 N.Y.2d 708, 712, 536 N.Y.S.2d 410, 533 N.E.2d 249 [1988]).
We note that the child’s privacy concerns are reasonable. However, both the Health Insurance Portability and Accountability Act of 1996, 42 USC § 1320d-1, et seq. (HIPAA) and the CPLR provide appropriate safeguards in the form of qualified protective orders to prohibit the parties from using or disclosing the protected information for any purpose other than the litigation or proceeding for which such information was requested (45 CFR 164.512[e][1][v][A]; see CPLR 3103[a]; Matter of Kayla S. [Eddie S.], 46 Misc.3d 747, 751–752, 998 N.Y.S.2d 824 [Fam. Ct., Bronx County 2014]; Matter of B. Children, 23 Misc.3d 1119[A], 2009 N.Y. Slip Op. 50841[U], *10, 14, 2009 WL 1176494 [Fam. Ct., Kings County 2009]).