Mark N. v. RUNAWAY SHELTER

Governmental intrusions on fundamental rights are subject to strict scrutiny. The state must prove that it has a compelling state interest in its infringement of a protected right. Furthermore a showing that no less restrictive means is available is necessary. In Parham v J. R. (supra at 602-603), the Court stated: "That some parents may at times be acting against the interests of their children * * * creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests * * * The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition." (Internal quotation marks omitted.) By not providing a balancing of the interests, the statute places the Safehouse in a position that is superior to the parent. In Webster v Ryan (supra ), the court set forth a procedure to balance the child's right to visit a foster parent and that of a biological parent. The Webster decision (supra at 90) spoke specifically of the fact that the child's "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." It is the decision of this court that Executive Law § 532-b is unconstitutional as applied and violates due process rights of the parent. This court holds that the parent may bring a writ of habeas corpus for the return of the child prior to the expiration of the 30 days. The court, in balancing both the child's and the parent's due process rights, holds that a hearing must be held in this matter. The issue the court must address is whether the best interests of the child are served by remaining in the Safehouse or by the return of the child. The court finds that the child has the burden of showing that the best interests of the child are served by not returning home immediately. The standard of proof shall be by a preponderance of the evidence.