Do courts have the power to stop people from procreating? Along with issues like the death penalty and abortion perhaps no other issue raises such fundamental concerns about governmental power over personal liberty. However, this issue had not been addressed by the New York courts until last Friday when the Fourth Department was confronted by the question in Matter of Bobbijean P. v Stephanie P., 2007 NY Slip Op 07173.
The issue arose in a neglect proceeding under article 10 of the Family Court Act. A child Bobbijean was born in March 2003 to parents who were homeless crack cocaine addicts. The mother also had previously given birth to three other children who were in foster care. When Bobbijean tested positive for crack cocaine upon birth, the court temporarily removed her from her parents’ care and placed her with a relative under the supervision of the Monroe County Department of Human Services (DHS). DHS then filed a neglect petition under article 10 of the Family Court Act. The mother initially appeared in the proceeding, but failed to appear at the hearing on the petition. Subsequently the Family Court issued an order finding that the parents had neglected Bobbijean, and the court adopted the dispositional plan for the child proposed by DHS. However, the Family Court added conditions to its order. Among those conditions was an order that the mother:
shall not get pregnant again until and unless she has actually obtained custody and care of Bobbijean P. and every other child of hers who is in foster care and has not been adopted or institutionalized.
And that the father:
shall not father any other child or children until and unless he has actually obtained custody and care of Bobbijean P. and every other child of his who is in foster care [The father did not seek relief from this provision].
The mother then moved to vacate this “no pregnancy” provision, which the Family Court denied.
However, on appeal the Fourth Department reversed and found that the Family Court had no authority to impose the “no pregnancy” condition. The Fourth Department stated that the Family Court only has power which is explicitly conferred on it by statute. And here, the only conditions that could be imposed on the mother were those authorized by Family Court Act § 1057, which provides that “[r]ules of court shall define permissible terms and conditions of [DHS’s] supervision” over the mother. Those “rules of court” were set forth in 22 NYCRR 205.83 (a) and (b), and the Fourth Department found that none of the conditions authorized therein included prohibiting procreation. Nor did any of those conditions impliedly include such a prohibition.
The mother also raised issues concerning the constitutionality of the order, but the Court found that it did not need to decide the constitutional issues because it resolved the matter on State law grounds. It should further be noted that the Court also reached the merits of the case even though the matter had become moot.
It is unlikely that this important decision will be reviewed by the Court of Appeals as DHS took no position regarding the “no pregnancy” condition. While the Law Guardian argued in favor of the “no pregnancy” condition, it is not likely that the Law Guardian will pursue the matter in the Court of Appeals. In addition, as mentioned, the matter is now moot.