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FAMILY COURT HAD THE AUTHORITY TO ORDER VISITATION WITH THE CHILDREN’S FORMER FOSTER MOTHER; A STRONG DISSENT ARGUED THE COURT DID NOT HAVE THE POWER TO ORDER VISITATION WITH A “LEGAL STRANGER” (FIRST DEPT). ​

The First Department, over an extensive and comprehensive dissent, determined Family Court properly allowed visitation with the children by their former foster mother. The dissent argued the court did not have the power to order visitation with the former foster mother, a “legal stranger:”

Commonly, visitation plans for children in foster care involve parents, grandparents or siblings, all of whom have standing to commence visitation proceedings. However, in this case, there was no visitation petition or proceeding before the court at the time of the permanency hearing. Rather,the court ordered visitation between the children and the former foster mother in order to advance the children’s “well-being” as it is required to do under Family Court Act § 1086. To accomplish that, the court gave special attention to the unique, undisputed circumstances of these children: (1) the children suffered from PTSD and other mental health issues following removal from their biological mother in 2016; (2) they each improved remarkably during the nearly six years they were cared for by the former foster mother; (3) removal from her care in December 2021 was traumatic for them; (4) at the time of the order, the children had only been in their current foster home for a few months; (5) ACS [Administration for Children’s Services] and the foster care agency had previously consented to and facilitated visits with the former foster mother for approximately two years; and (6) the children remained strongly bonded to her as the only adult who had been a consistent positive presence in their lives at the time of the 2023 permanency hearing that resulted in the order.

… [A]s Family Court explained on the record, “there is no legal path where the children end up in [the] care” of the former foster mother. However, the court expressed concern that discontinuing all contact with her at this time would be contrary to their well-being. The court noted that it was troubled “that we didn’t have more details [presented at the hearing] about the children’s therapy and medication” and that there was no testimony that “cutting off all contact with [the former foster mother] . . . is therapeutically beneficial.” Under these circumstances, Family Court’s continuation of visitation with the former foster mother was an appropriate exercise of its authority under Family Court Act § 1089, was tailored to the particular circumstances of these children, and was in keeping with the legislative goal of ensuring foster children’s well-being. Matter of AL.C., 2024 NY Slip Op 03799, First Dept 7-11-24

Practice Point: Here Family Court properly ordered visitation with the children by their former foster mother, based primarily upon the children’s improvement while in her care and the strong bond between her and the children. The dissent argued the court did not have the authority to order visitation with a “legal stranger.”

 

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