In Matter of Pedro M. 21 Misc 3d 645, 648-649, 864 NYS2d 869 [Fam Ct, Albany County 2008]), the court had before it the issue of the meaning of the then-recent amendment to Family Court Act § 1089 (d) requiring the court to engage in "age-appropriate consultation with the child."

A 16-year-old child wished to appear in person at his permanency hearing. The Department of Social Services opposed this out of concern that his appearance would be emotionally upsetting to him, based upon testimony from his clinical specialist regarding his behavior surrounding the previous permanency hearing, including "punching staff, running into the road and twice pulling fire alarms".

Additionally, she testified that he "does not understand the court proceedings and, after his last appearance, he was confused" (id. at 649).

However, in reviewing the child's behavioral reports and all of the facts and circumstances occurring at the time of the previous permanency hearing, the court found that the "pattern of misbehavior does not support a court appearance causation theory" (id.).

In a thorough and well-reasoned decision, the court found that "the Department has not met its burden to show by a preponderance of the evidence that special circumstances exist to deny Pedro his right to be heard and to deprive the court of its obligation to consult with Pedro in person" (id. at 649-650).

Although dicta, the court raised concerns about the child's constitutional rights and the required burden of proof to interfere with such rights. Even after expert testimony concerning Pedro's violent and dangerous behaviors, the court permitted his personal appearance.