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In an apparent case of first impression in the United States, a Family Court judge in Albany, N.Y., has held that a child has a liberty interest — independent from that of his father and rooted in the constitutional guarantees of freedom of association, equal protection and due process — to maintain a long-established relationship with his foster mother. Judge W. Dennis Duggan’s extraordinary opinion holds that a 6-year-old child can assert a right to maintain contact with a person with whom he has developed a parentlike relationship: in this case, the foster mother who was essentially the only parent figure the boy knew from virtually the day he was born to the day five years later when he was turned over to the custody of his father. Although an Australian court had ruled similarly, Duggan is apparently the first judge in the United States to expand the concept of free association in such a dramatic and potentially reverberating fashion in the orbit of family law. In sum, the decision holds that: a child has a state and federal constitutional right to maintain personal relations with a person with whom he or she has developed a parentlike relationship; the child is entitled to a process to enforce that right against unwarranted restrictions by the state, a parent or another person; the child’s and parent’s rights must be carefully balanced; and the court should presume that the parent’s decision to restrict or end contact with the nonbiological relation is in the child’s best interest. Duggan acknowledges in Webster v. Ryan, 1448D, that he is recognizing a right that is not explicitly found in the Constitution, and one which requires a delicate balancing of liberties when exercised: the new-found right of a child to maintain contact — over the objections of a fit, biological parent — to a nonbiological relation against the right of a parent to raise his or her child free of government interference. A hearing will be held July 9 to determine if the boy in this case, who has made no request for visitation with his former foster mother, has standing to assert a claim and, if so, if granting such a demand would be in his best interests. Duggan’s decision outlines in detail the process for the child to assert his enumerated and unenumerated rights and, if necessary, the analysis the court will undertake in its best-interest evaluation. “The narrow holding in this case is that a statutory scheme that permits court intervention to order contact between a child and a parent or sibling or grandparent is an unconstitutional denial of a child’s right to equal protection of the laws when the law does not provide a procedure for the child to assert the same right with respect to a person with whom the child has a significant or substantial parent-like relationship,” Duggan wrote. “Since the court holds that such a right is fundamental and constitutes a liberty interest under the Due Process Clause, the child must have an effective forum to assert that right.” Webster v. Ryan began as a petition by the foster mother, Harriet Webster, raising the question of whether she had standing to make a claim for visitation rights against the father, Alex Ryan Sr. In January, Duggan held that Webster lacks standing. But in a footnote, the judge hinted at what was to come and noted in a letter to counsel last month that he would be issuing a follow-up decision addressing a child’s standing to assert a liberty interest in maintaining a relationship with a nonbiologically related person “when that relationship has arisen under extraordinary circumstances and for which the best interest of the child requires that the child have access to the courts to maintain such a relationship.” BORN AN ADDICT The case centers on Alex Ryan Jr., a boy born addicted to cocaine on June 2, 1995. Alex’s mother, a cocaine and crack addict, abandoned the child of her boyfriend. The baby was removed from her custody shortly after birth. Ryan, the father, immediately sought custody, but the child was turned over to the foster care of Webster. From 1995 to 1998, Ryan was afforded one hour of supervised visitation each week and in 1999 his parental rights were terminated by Albany County Judge Gerard E. Maney upon a finding of permanent neglect. Last spring, the Appellate Division, 3rd Department, reversed. In an unusually pointed decision directed at another court, the 3rd Department said Judge Maney had “repeatedly thwarted the father’s efforts” and displayed hostility toward both Ryan and his attorney. The 3rd Department found the record generally supportive of a finding that the father was qualified to care for his son and remanded the matter, with instructions that it be handled by a different judge. The case then came before Judge Duggan. Duggan granted Ryan custody of his son and initially afforded Webster temporary visitation against the father’s wishes. Webster subsequently sought an order affirming her visitation rights, and in his January decision Duggan said he could find no statutory basis for granting her petition. Now, with the latest opinion, Duggan said that while Webster lacks standing to seek visitation with Alex, Alex may have standing to seek visitation with Webster. The court relied primarily on two precedents, Troxel v. Granville, 530 U.S. 57 (2000), and Alison D. v. Virginia M., 77 NY2d 651 (1991) — and then conceded in a footnote that the result in Alex Ryan’s case, if visitation with the foster mother ultimately results, would probably be different under a Troxel analysis and would definitely be contrary under Alison D. Troxel was the 6-3 U.S. Supreme Court case last year where the terribly splintered Court — it issued six separate opinions, three going each way — struck down as applied in that matter a Washington State statute allowing any person to petition for visitation with any child. Justice John Paul Stevens, in a dissent, raised the issue of the child’s independent constitutional rights, and Justice Anthony M. Kennedy also lent support to that concept in his dissent. In those dissents, as well as a dissent in a New York Court of Appeals case, Duggan found authority for his holding. In Alison D., the New York Court of Appeals held in a per curium decision that the estranged mate of a lesbian woman could not assert a claim for visitation. In dissent, now Chief Judge Judith S. Kaye noted that the law does not define “parent” and that if she were to do so, she would include a “de facto” parent. TIME FOR ACTIVISM If Duggan is delving here into the realm of judicial activism — and he acknowledges he probably is — he suggests that there is a time for such an approach, and that time is now. In the first of 45 footnotes in a 44-page opinion, Duggan struggles with the Family Court’s inability to keep up with a changing society, bemoans the outlived usefulness of terms like “custody” and “visitation,” suggests that children are usually shortchanged in an adversary system with winners and losers and notes that he has ceased using the word “visitation” in his orders, employing the word “parenting time” instead. With references back to the Federalist Papers and up to the present, Duggan goes to lengths to explain and justify the expansionist nature of his decision. He notes that the U.S. Supreme Court has recognized due process and equal protection rights to travel ( Edwards v. California, 314 U.S. 160, 1941), to wed ( Loving v. Virginia, 388 U.S. 1, 1967) and privacy ( Griswold v. Connecticut, 381 U.S. 479, 1965) even though those rights are not specified in the Constitution. “The judiciary has no equivalent of the Rosetta Stone or Dead Sea scrolls to divine the Framers’ intent or unlock the original understanding of Constitutional text when making a decision that determines a right or expands a recognized right,” Duggan wrote. “However, there still must be a faithfulness to the text of the Constitution, a respect for the traditions and values of our society and a deference to legislative authority.” Appearing in Webster v. Ryan were: Charles T. Kriss of Kriss Kriss & Brignola in Albany for Webster; F. Stanton Ackerman of Ackerman Wachs & Finton in Albany and Laurie B. Kurtzman of Schenectady for Ryan; and law guardian Peter J. Scagnelli of Albany. REACTION TO THE RULING “This is an incredible decision,” said Ackerman, counsel for the father. Ackerman said the decision is constitutionally defective in that it tramples the rights and destroys the statutory and common law autonomy of a judicially determined competent parent. “If this ruling stands, we are going to have to add a new branch to the Family Court system to handle cases of this nature,” Ackerman predicted, adding that he could find no case in the nation that supports Duggan’s finding. “I just find it unusual, and bizarre, that he is discriminating against a parent with sole custody. The boundaries of this decision are unlimited.” Kriss declined comment on behalf of Webster, as did Scagnelli on behalf of the boy. Martin F. Guggenheim, professor of Clinical Law and director of Clinical and Advocacy Programs at New York University School of Law, said the ruling has enormous implications. However, he said that in light of the Justice Stevens and Kennedy dissents in Troxel, and the Court of Appeals’ 1992 decision in Matter of Michael B., 590 NYS2d 60, it was probably just a matter of time before some judge rendered a decision along these lines. In Matter of Michael B., although not on point, the Court of Appeals explored through Judge Kaye the weight to be given a child’s bonding with his long-time foster family in determining the placement that would be in his best interest. The court found no liberty interest in a foster family that can survive a child’s interest in being returned to his parents. With the court rejecting the argument that a child has a liberty interest in remaining with the foster family, the court set the stage for a rule that would allow post-return visitation in certain circumstances, Guggenheim said. He said Duggan’s decision providing a framework for post-return visitation can comfortably co-exist with the principle adopted in Michael B. and the proposition that the law should not countenance a rule that would trump the very goal of foster care, which is the eventual reunification of the family unit. “In tolerating post-return access, courts would be taking into account better than current law has the needs of children who grow up in circumstances that no person who cares about children would have wanted,” said Guggenheim, a family law expert. “Now the question is whether the law is powerless to take the needs of the child into account. Frankly, I would hope the answer is ‘no,’ that there is power in the law to figure out what the right post-return arrangements might include.” Guggenheim said, however, that the father’s views must be taken into account and should be afforded great deference — as, in fact, Judge Duggan held. Richard Wexler, executive director of the National Coalition for Child Protection Reform in Alexandria, Va., said the ruling is detrimental to the extent that it pits a child against his father. “This ruling, if it is upheld on appeal, will open a Pandora’s box leading to enormous harm to children all over the country,” Wexler said. “There is little more damaging to a small child psychologically than too much choice. Here, you are placing the ultimate choice in the hands of a very young child.” Wexler said that once the biological parent is found competent and fit, a court should defer to that parent’s judgment absent extraordinary circumstances. “We have lost the fundamental presumption that most of the time parents are in the best interests of their children,” Wexler said. “Even if, hypothetically, this particular child might do better in a situation where there is a voluntary agreement for visitation, the tension caused by the court interference itself, the harm caused by the meddling, outweighs any possible benefit. What this court has forgotten is what every doctor is supposed to learn in medical school: First do no harm.” Guggenheim said that while he understands and generally agrees with Wexler’s position, he also believes that a balancing of the interests and rights, as ordered by Duggan, is both feasible and equitable. “Rulings that give ultimate power to courts to micromanage families unleash a power that is dangerous when exercised, difficult to constrain and threatens the well-being of families in general,” Guggenheim said. “I am worried and troubled by trusting judges and the state to raise children. But I think a proper deference, meaningfully applied, to a parent is all that is owed.”

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