Webster v. Ryan

• Decision Date: 21 June 2001
• Citation: 729 N.Y.S.2d 315,189 Misc.2d 86
• Parties: HARRIET WEBSTER, Petitioner,<BR>v.<BR>ALEX RYAN, SR., Respondent.
• Court: New York Family Court

189 Misc.2d 86
729 N.Y.S.2d 315

HARRIET WEBSTER, Petitioner,
v.
ALEX RYAN, SR., Respondent.

June 21, 2001.

[189 Misc.2d 87]

Charles T. Kriss for petitioner.

F. Stanton Ackerman and Laurie B. Kurtzman for respondent.

Peter J. Scagnelli, Law Guardian.

OPINION OF THE COURT

W. DENNIS DUGGAN, J.

In this case, the Court holds that a child has an independent, constitutionally guaranteed right to maintain contact^[1] with a person with whom the child has developed a parent-like relationship.^[2]

That right is constitutionally guaranteed because it is a fundamental liberty encompassed within the freedom of association

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right of the First Amendment^[3] of the United States Constitution and article I, §§ 8 and 9 of the New York Constitution.^[4] This liberty is protected by the Due Process Clause of the Fourteenth Amendment and article I, § 6 of the New York Constitution. Because the state has provided no statutory basis for a child to assert such right of contact in a court of law, as it has for similar situations involving child contact with parents, grandparents and siblings, Alex Ryan, Jr., has been denied the equal protection of the laws guaranteed by the Fourteenth Amendment of the US Constitution and article I, § 11 of the New York Constitution.^[5]

I. Procedural History

The procedural history of this case is fully described in Matter of Alex MM. (260 AD2d 675 [Ryan I]), Matter of Alex LL. v Albany County Dept. of Social Servs. (270 AD2d 523 [Ryan II]) and in Webster v Ryan (187 Misc 2d 127 [Ryan III]). A brief factual summary follows: Alex, Jr., was born in 1995, with a positive toxicology for cocaine. He was removed from his mother's custody shortly after birth. Her parental rights were eventually terminated, as were the father's in 1999. Both parents' terminations were based on permanent neglect. During the time that the Department of Social Services (DSS) was providing services for the mother, the father was filing at least

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four custody proceedings.^[6] All of the father's petitions were dismissed by the Family Court judge without a hearing. According to the trial court, the petitions were "dismissed due to [the father's] unwillingness to partake in services recommended by [DSS]." (Ryan II at 529, n 1.) For the years from 1995 to 1998, the father received one hour of DSS-supervised visitation each week. In reviewing the denial of the father's custody petitions, the Appellate Division held:

"In fact, the records in these proceedings reveal no evidence that the father would not be a proper custodian for the child or that the child would be at risk in his custody. To the contrary, despite Family Court's limitation on the evidence received, the record generally supports a finding that the father is qualified to serve as a custodian for the child." (Ryan II at 526.)

Concerning the termination of parental rights finding, the Appellate Division held that DSS made no effort to satisfy its burden of showing that it had formulated a realistic plan that was tailored to fit the father's circumstances. It also held that the Family Court judge "repeatedly thwarted the father's efforts to establish the lack of any reasonable basis for the plan that was put in place * * * Obviously, the petition should have been dismissed at the conclusion of DSS' case, if not earlier." (Ryan II at 527.) The Appellate Division, in finding that the Family Court judge had demonstrated hostility toward the father and his attorney, ordered that all further proceedings be conducted before a different judge.

Upon remand, in Ryan III, this Court returned custody of the child to the father and entered a series of visitation orders to facilitate the transition of the child back into the father's home. During this period of time, the foster mother filed petitions seeking visitation and custody rights to Alex, Jr. This Court, in Ryan III, rejected the foster mother's claims. It found that there was no statutory, common law or constitutional

[189 Misc.2d 90]

basis to grant visitation to a nonbiological, former custodian. The Court reserved on the question of whether the child has an independent constitutional right to seek visitation with his former foster mother and allowed the parties and the Law Guardian time to brief the issue. This decision answers that question in the affirmative. From Alex, Jr.'s birth in 1995 until April 2000, when he was returned to his father, the boy had lived with the foster mother for all of his life but for a few weeks.

II. Determination of Fundamental Rights

In this case, the Court has concluded that a child has a fundamental right to maintain contact, over the objection of a parent, with a person with whom the child has developed a parent-like relationship. The Court also holds that this right has constitutional protection but that this right must be balanced with the unquestionable fundamental right of the parent to raise his son without undue state interference.

The judicial determination (disparagingly described by some as "discovery") of fundamental rights has long been a subject of great debate in the legal and judicial professions.^[7] There is, admittedly, no consensus on either side of the debate. On the restraint side, there is no agreement on their main point, which is that rights cannot be judicially discovered or determined outside the four corners of the Constitution. On the expansionist

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side, there is no agreement about where rights originate or how they are determined. In fact, there is no agreement by either side as to whether any particular judge is on any particular side at any particular time. Also, a judge's membership on either side can change, depending upon whose constitutional ox is being gored.^[8]

A judge, wading into the constitutional rights determination quicksand, must have an abiding concern that he not set himself up as a judicial legislature. This concern goes back at least to the debate between Justices Chase and Iredell in Calder v Bull (3 Dallas [3 US] 386 [1798]). In Calder, Justice Chase set forth the proposition that the Court had the authority to set aside legislation that infringed on rights having their source in natural law. Justice Iredell countered that, even if a legislative act violated natural law, the Court, in setting the law aside, would be exercising powers not granted it by the Constitution.

So, where do fundamental rights come from? They cannot come from our Constitution in the sense that the Constitution itself grants or bestows rights on the governed. After all, a constitution is nothing more than a compact (though a very important one) among the governed as to how they wish to organize their government and what powers it should have and not have. A constitution may create nonfundamental rights and protect or guarantee specific fundamental rights. But, if a constitution was a source of fundamental rights, this would mean that people could confer these rights upon themselves. To so hold would be to say that there were no fundamental rights before the Constitutional Convention of 1787 and those rights were first created in that Convention. The absurdity of that argument is illustrated by just stating it. A constitution may be the repository of rights and even the source of some important rights, but not the source of fundamental rights. At this point, the definition of a fundamental right may have an air of circularity to it. Suffice it to say that if a right can be created by majority vote then it can be extinguished in the same way. For a right to be fundamental, it must be exempt from that process. The obvious reason for this is that for a right to

[189 Misc.2d 92]

be fundamental, whatever that right may be, it must have some transcendental quality and such a right could not have been created by a majority vote of the 39 men who signed the Constitution. It could have been enumerated by them to the extent they chose to do so, but not created by them.

Proof that the People possess other rights, not contained in or derivative of the Constitution, comes from three powerful positive sources: the Declaration of Independence, the Constitution and the Bill of Rights.

The Declaration of Independence, in its second paragraph, states:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." (Emphasis added.)

This Declaration, written by Jefferson, influenced heavily by Locke,^[9] states that our rights come from our creator (whether that be a personal God, a deity, or just inherent in the unique dignity of humanness). It also states that our rights are unalienable; that is, they are not capable of being invested or divested, and that among those rights are life, liberty and the pursuit of happiness.^[10] Life, liberty and the pursuit of happiness, according to the Declaration of Independence, is not an all-inclusive list of rights. Because the Declaration predates the Constitution, it is clear that every right we possess need not be found in, nor can be distilled from, some stated right in the Constitution. Nor can every right we possess be found

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reposing in a penumbra^[11] of some collection or amalgam of these enumerated rights.

The second evidentiary source for the proposition that all of our rights are not contained in the Constitution is the Constitution itself. The Constitution, as first passed, had no bill of rights at all. The Delegates to the Convention did not believe one was necessary. It was not necessary, in the Framers' view, because the Constitution, as written, gave the Federal Government no power to abridge any fundamental rights.

"James Wilson, a delegate from Pennsylvania, told a meeting of Pennsylvania citizens that a

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