ALBANY, N.Y., June 7 (Reuters) - Family courts in New York
do not have the authority to permit contact between a parent and
a child once parental rights have been terminated, the state's
top court has ruled, resolving a conflict between midlevel
In a 6-1 decision, the Court of Appeals on Thursday held
that a family court properly decided that it was barred from
permitting a father visitation rights with his daughter once the
father's parental rights were terminated.
"The legislature ... has not sanctioned judicial imposition
of post-termination contact where parental rights are terminated
after a contested proceeding," Judge Susan Read wrote for the
The ruling overturns nearly a decade of precedent from the
Appellate Division, Fourth Department, which is based in
Buffalo, New York, and upholds the decisions of the First and
The father in the case, identified in court papers as Ricky
ZZ, was sentenced to 5 to 15 years in prison for an undisclosed
crime in early 2008, when his daughter, Hailey, was three months
old. Later that year, Tompkins County social workers removed
Hailey and her half-sister from their mother's care and placed
them with foster parents.
In 2010 the mother surrendered her parental rights, and the
county pursued proceedings against the father to terminate his
parental rights. Acting State Supreme Court Justice William Ames
found that the father had failed to find an adequate alternative
to placing Hailey in foster care while he remained in prison,
and terminated his parental rights. Ames also denied the
father's request for continuing visitation with Hailey, who is
now 4 years old.
The Third Department last year affirmed, holding that the
county had fulfilled its legal obligation to attempt to return
Hailey to her father's care. The court also dismissed the
father's request for post-termination visitation rights, finding
that the hearing court had no authority to grant them.
The Court of Appeals on Thursday affirmed.
To hold otherwise "would appear to be inconsistent with this
state's view as expressed by the legislature that (termination)
relieves the biological parent of all parental duties toward and
of all responsibilities for the adoptive child over whom the
parent shall have no rights," Read wrote.
Chief Judge Jonathan Lippman and judges Carmen Ciparick,
Victoria Graffeo, Theodore Jones and Robert Smith concurred.
In dissent, Judge Eugene Pigott said that the father's
rights should not have been terminated and that the ruling
effectively bars family courts from fulfilling their
responsibility to make decisions in the best interest of
"I would prefer to sanction, rather than restrict, the
hearing court's exercise of discretion, particularly in the area
of family law where flexibility in judicial decision-making is a
virtue of the highest order," Pigott wrote.
The Fourth Department, Pigott continued, "had it right" in
its 2006 decision in the Matter of Kahlil S, in which the court
found that post-termination contact is an issue best left to the
discretion of family courts.
The Fourth Department has since remanded a number cases to
trial courts for so-called "Kahlil hearings" to determine
whether post-termination contact should be allowed.
In a brief submitted on behalf of the father, the Legal Aid
Bureau of Buffalo wrote that the hearings are particularly
useful in cases where parental rights are terminated because of
mental illness, rather than neglect. But Thursday's decision
means the hearings can no longer be held.
"In these situations," Pigott wrote, "the child's attachment
to a natural parent who is incapable of looking after a child
through no fault or his or her own may be profound, and worthy
The case is the Matter of Hailey ZZ, New York State Court of
Appeals, No. 103.
For the child: Randolph Kruman.
For the father: Paul Connolly.
For Tompkins County Department of Social Services: Daniel
(Reporting by Dan Wiessner)
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