N S T I T U T E
I
C L E
N Y C L A
D IRECT
R EPRESENTATION OF
THE C HILD IN F AMILY
C OURT : P RACTICAL
R EALITIES AND
C URRENT S TRUGGLES
Prepared in connection with a Continuing Legal Education course presented
at New York County Lawyers’ Association, 14 Vesey Street, New York, NY
scheduled for May 13, 2015
Program co-sponsors: NYCLA's Family Ct. And Child Welfare (FCCW) Committee
and Phi Alpha Delta, NYC Alumni Chapter
Faculty: Hon. Sarah Cooper, Family Court, Bronx County; Martha Schneiderman,
Children's Law Center; Keith Brown, Esq.; Maura Keating, Center for Family
Representation (CFR)
Moderator: Lauren Meller, ACS
This course has been approved in accordance with the requirements of the New York State Continuing Legal Education
Board for a maximum of 2 Transitional and Non-Transitional credit hours:1.5 Professional Practice/Law Practice
Management; .5 Ethics.
This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 2
hours of total CLE credits. Of these, .5 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit
toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.
ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of
continuing legal education in the States of New York and New Jersey.
Information Regarding CLE Credits and Certification
Direct Representation of the Child in Family Court: Practical Realities and Current
Struggles
May 13, 2015; 6:00 PM to 8:00 PM
The New York State CLE Board Regulations require all accredited CLE
providers to provide documentation that CLE course attendees are, in fact,
present during the course. Please review the following NYCLA rules for
MCLE credit allocation and certificate distribution.
i.
You must sign-in and note the time of arrival to receive your
course materials and receive MCLE credit. The time will be
verified by the Program Assistant.
ii.
You will receive your MCLE certificate as you exit the room at
the end of the course. The certificates will bear your name and
will be arranged in alphabetical order on the tables directly outside
the auditorium.
iii.
If you arrive after the course has begun, you must sign-in and note
the time of your arrival. The time will be verified by the Program
Assistant. If it has been determined that you will still receive
educational value by attending a portion of the program, you will
receive a pro-rated CLE certificate.
iv.
Please note: We can only certify MCLE credit for the actual time
you are in attendance. If you leave before the end of the course,
you must sign-out and enter the time you are leaving. The time will
be verified by the Program Assistant. Again, if it has been
determined that you received educational value from attending a
portion of the program, your CLE credits will be pro-rated and the
certificate will be mailed to you within one week.
v.
If you leave early and do not sign out, we will assume that you left
at the midpoint of the course. If it has been determined that you
received educational value from the portion of the program you
attended, we will pro-rate the credits accordingly, unless you can
provide verification of course completion. Your certificate will
be mailed to you within one week.
Thank you for choosing NYCLA as your CLE provider!
New York County Lawyers’ Association
Continuing Legal Education Institute
14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646
Direct Representation of the Child in Family Court: Practical Realities and
Current Struggles
Wednesday, May 13, 2015; 6:00 PM to 8:00 PM
Program Co-Sponsors: NYCLA's Family Ct. And Child Welfare (FCCW) Committee and
Phi Alpha Delta, NYC Alumni Chapter
Faculty: Hon. Sarah Cooper, Family Court, Bronx County; Martha Schneiderman,
Children's Law Center; Keith Brown, Esq.; Maura Keating, Center for Family
Representation (CFR)
Moderator: Lauren Meller, ACS
AGENDA
5:30 PM – 6:00 PM
Registration
6:00 PM – 6:10 PM
Introductions and Announcements
6:10 PM – 8:00 PM
Presentation and Discussion
STATUTES AND COURT RULES
Rules of the Chief Judge
Part 7–Law Guardians
Part 36, Appointments by the Court
Rules of the Chief Administrator of the Courts
Part 127, Assignment and Compensation of Counsel, Psychiatrists, Psychologists and Physicians
Rules of the Appellate Division, First
Department Part 611, Law Guardian Plan Part 612,
Rules to Implement a Criminal Courts Plan Part
623, Mental Health Professionals Panel
Part 1500(a), Mandatory Continuing Legal Education Program for Attorneys in the State of NY
Part 1500(b),. Mandatory Continuing legal Education for Newly Admitted Attorneys Part 1500©,
Mandatory Continuing Legal Education for Attorneys other than Newly Admitted Attorneys
Statewide Law Guardian Advisory Committee Summary
of Responsibilities of the Attorney for the Child
Family Court
Act Article 2, Part
4
Article 2, Part 6 counsel for Indigent Adults in Family Court Proceedings
Article 11, Appeals
Judiciary Law
Article 2, General Provisions Relating to Courts and Judges
County Law
Article 18-b, Representations of Persons Accused of Crime or Parties before the Family court or
Surrogate’s Court
Civil Practice Law and Rules
Article 11, Poor Persons
Article 12, Infants, Incompetents and Conservatees
Bylaws
Administrative Order
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RULES OF THE CHIEF JUDGE
Part 7
Law Guardians
§ 7.2 Function of the Attorney for the Child
(a) As used in this part, "attorney for the child" means a law guardian appointed by family court
pursuant to section 249 of the Family Court Act, or by the supreme court or a surrogate's court in
a proceeding over which the family court might have exercised jurisdiction had such action or
proceeding been commenced in family court or referred thereto.
(b) The attorney for the child is subject to the ethical requirements applicable to all lawyers,
including but not limited to constraints on: ex-parte communication; disclosure of client
confidences and attorney work product; conflicts of interest; and becoming a witness in the
litigation.
(c) In juvenile delinquency and person in need of supervision proceedings, where the child is the
respondent, the attorney for the child must zealously defend the child.
(d) In other types of proceedings, where the child is the subject, the attorney for the child must
zealously advocate the child’s position.
(1) In ascertaining the child's position, the attorney for the child must consult with and
advise the child to the extent and in a manner consistent with the child’s capacities, and
have a thorough knowledge of the child's circumstances.
(2) If the child is capable of knowing, voluntary and considered judgment, the attorney for
the child should be directed by the wishes of the child, even if the attorney for the child
believes that what the child wants is not in the child’s best interests. The attorney should
explain fully the options available to the child, and may recommend to the child a course
of action that in the attorney's view would best promote the child's interests.
(3) When the attorney for the child is convinced either that the child lacks the capacity for
knowing, voluntary and considered judgment, or that following the child’s wishes is
likely to result in a substantial risk of imminent, serious harm to the child, the attorney for
the child would be justified in advocating a position that is contrary to the child’s wishes.
In these circumstances, the attorney for the child must inform the court of the child’s
articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's
position.
[PROMULGATED by order of the Chief Judge, Dated October 17, 2007]
B.
STATEWIDE LAW GUARDIAN ADVISORY COMMITTEE
SUMMARY OF RESPONSIBILITIES OF THE ATTORNEY FOR THE CHILD
While the activities of the attorney for the child will vary with the circumstances of each client
and proceeding, in general those activities will include, but not be limited to, the following:
(1)
Commence representation of the child promptly upon being notified of the
appointment;
(2)
Contact, interview and provide initial services to the child at the earliest practical
opportunity, and prior to the first court appearance when feasible;
(3)
Consult with and advise the child regularly concerning the course of the
proceeding, maintain contact with the child so as to be aware of and respond to the child's
concerns and significant changes in the child’s circumstances, and remain accessible to
the child;
(4)
Conduct a full factual investigation and become familiar with all information and
documents relevant to representation of the child. To that end, the lawyer for the child
shall retain and consult with all experts necessary to assist in the representation of the
child.
(5)
Evaluate the legal remedies and services available to the child and
pursue appropriate strategies for achieving case objectives;
(6)
Appear at and participate actively in proceedings pertaining to the child;
(7)
Remain accessible to the child and other appropriate individuals and agencies to
monitor implementation of the dispositional and permanency orders, and seek
intervention of the court to assure compliance with those orders or otherwise protect the
interests of the child, while those orders are in effect; and
(8)
Evaluate and pursue appellate remedies available to the child, including
the expedited relief provided by statute, and participate actively in any appellate
litigation pertaining to the child that is initiated by another party, unless the
Appellate Division grants the application of the attorney for the child for
appointment of a different attorney to represent the child on appeal.
[APPROVED by the Administrative Board of the Unified Court System October 4, 2007]
FAMILY COURT ACT
a.
Article 2, Part 4
Law Guardians
§ 241. Findings and purpose
This act declares that minors who are the subject of family court proceedings or appeals in
proceedings originating in the family court should be represented by counsel of their own
choosing or by law guardians. This declaration is based on a finding that counsel is often
indispensable to a practical realization of due process of law and may be helpful in making
reasoned determinations of fact and proper orders of disposition. This part establishes a system of
law guardians for minors who often require the assistance of counsel to help protect their
interests and to help them express their wishes to the court. Nothing in this act is intended to
preclude any other interested person from appearing by counsel.
§ 242. Law guardian
As used in this act, "law guardian" refers to an attorney admitted to practice law in the state of New
York and designated under this part to represent minors pursuant to section two hundred and
forty-nine of this act.
§ 243. Designation
(a) The office of court administration may enter into an agreement with a legal aid society for the
society to provide law guardians for the family court or appeals in proceedings originating in the
family court in a county having a legal aid society.
(b) The appellate division of the supreme court for the judicial department in which a county is
located may, upon determining that a county panel designated pursuant to subdivision © of this
section is not sufficient to afford appropriate law guardian services, enter into an agreement, subject
to regulations as may be promulgated by the administrative board of the courts, with any qualified
attorney or attorneys to serve as law guardian or as law guardians for the family court or appeals in
proceedings originating in the family court in that county.
(c) The appellate division of the supreme court for the judicial department in which a county is
located may designate a panel of law guardians for the family court and appeals in proceedings
originating in the family court in that county, subject to the approval of the administrative board of
the courts. For this purpose, it may invite a bar association to recommend qualified persons for
consideration by the said appellate division in making its designation, subject to standards as may
be promulgated by such administrative board.
§ 244. Duration of designation
(a) An agreement pursuant to subdivision (a) of section two hundred forty-three of this chapter may
be terminated by the office of court administration by serving notice on the society sixty days prior
to the effective date of the termination.
(b) No designations pursuant to subdivision © of such section two hundred forty-three may be for
a term of more than one year, but successive designations may be made. The appellate division
proceeding pursuant to such subdivision © may at any time increase or decrease the number of law
guardians designated in any county and may rescind any designation at any time, subject to the
approval of the office of court administration.
§ 245. Compensation
(a) If the office of court administration proceeds pursuant to subdivision (a)of section two hundred
forty-three of this chapter, the agreement shall provide that the society shall be reimbursed on a cost
basis for services rendered under the agreement. The agreement shall contain a general plan for the
organization and operation of the providing of law guardians by the respective legal aid society,
approved by the said administrative board, and the office of court administration may require such
reports as it deems necessary from the society.
(b) If an appellate division proceeds pursuant to subdivision (b) of such section two hundred fortythree, the agreement may provide that the attorney or attorneys shall be reimbursed on a cost basis
for services rendered under the agreement. The agreement shall contain a general plan for the
organization and operation of the providing of law guardians by the respective attorney or attorneys,
and the appellate division may require such reports as it deems necessary from the attorney or
attorneys.
(c) If an appellate division proceeds pursuant to subdivision © of such section two hundred fortythree, law guardians shall be compensated and allowed expenses and disbursements in the same
amounts established by subdivision three of section thirty-five of the judiciary law.
§ 246. Supervision by administrative board
The administrative board of the judicial conference may prescribe standards for the exercise of the
powers granted to the appellate divisions under this part and may require such reports as it deems
desirable.
§ 248. Appropriations
The costs of law guardians under section two hundred forty-five shall be payable by the state of
New York within the amounts appropriated therefor.
§ 249. Appointment of law guardian
(a) In a proceeding under article three, seven, ten or ten-A of this act or where a revocation of an
adoption consent is opposed under section one hundred fifteen-b of the domestic relations law or in
any proceeding under section three hundred fifty-eight-a, three hundred eighty-three-c, three hundred
eighty-four or three hundred eighty-four-b of the social services law or when a minor is sought to
be placed in protective custody under section one hundred fifty-eight of this act, the family court
shall appoint a law guardian to represent a minor who is the subject of the proceeding or who is
sought to be placed in protective custody, if independent legal representation is not available to such
minor. In any proceeding to extend or continue the placement of a juvenile delinquent or person in
need of supervision pursuant to section seven hundred fifty-six or 353.3 of this act or any proceeding
to extend or continue a commitment to the custody of the commissioner of mental health or the
commissioner of mental retardation and developmental disabilities pursuant to section 322.2 of this
act, the court shall not permit the respondent to waive the right to be represented by counsel chosen
by the respondent, respondent's parent, or other person legally responsible for the respondent's care,
or by a law guardian. In any other proceeding in which the court has jurisdiction, the court may
appoint a law guardian to represent the child, when, in the opinion of the family court judge, such
representation will serve the purposes of this act, if independent legal counsel is not available to the
child. The family court on its own motion may make such appointment.
(b) In making an appointment of a law guardian pursuant to this section, the court shall, to the extent
practicable and appropriate, appoint the same law guardian who has previously represented the child.
Notwithstanding any other provision of law, in a proceeding under article three following an order
of removal made pursuant to article seven hundred twenty-five of the criminal procedure law, the
court shall, wherever practicable, appoint the counsel representing the juvenile offender in the
criminal proceedings as law guardian.
§ 249-a. Waiver of counsel
A minor who is a subject of a juvenile delinquency or person in need of supervision proceeding shall
be presumed to lack the requisite knowledge and maturity to waive the appointment of a law
guardian. This presumption may be rebutted only after a law guardian has been appointed and the
court determines after a hearing at which the law guardian appears and participates and upon clear
and convincing evidence that (a) the minor understands the nature of the charges, the possible
dispositional alternatives and the possible defenses to the charges, (b) the minor possesses the
maturity, knowledge and intelligence necessary to conduct his own defense, and © waiver is in the
best interest of the minor.
b.
Article 2, Part 6
Counsel for Indigent Adults in Family Court Proceedings
§ 261. Legislative findings and purpose
Persons involved in certain family court proceedings may face the infringements of fundamental
interests and rights, including the loss of a child's society and the possibility of criminal charges, and
therefore have a constitutional right to counsel in such proceedings. Counsel is often indispensable
to a practical realization of due process of law and may be helpful to the court in making reasoned
determinations of fact and proper orders of disposition. The purpose of this part is to provide a
means for implementing the right to assigned counsel for indigent persons in proceedings under this
act.
§ 262. Assignment of counsel for indigent persons
(a) Each of the persons described below in this subdivision has the right to the assistance of counsel.
When such person first appears in court, the judge shall advise such person before proceeding that
he or she has the right to be represented by counsel of his or her own choosing, of the right to have
an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any
case where he or she is financially unable to obtain the same:
(i)
the
(ii)
(iii)
(iv)
child
(v)
of
the respondent in any proceeding under article ten or article ten-A of this act and
petitioner in any proceeding under part eight of article ten of this act;
the petitioner and the respondent in any proceeding under article eight of this act;
the respondent in any proceeding under part three of article six of this act;
the parent, foster parent, or other person having physical or legal custody of the
in any proceeding under article ten or ten-A of this act or section three hundred fiftyeight-a, three hundred eighty-four or three hundred eighty-four-b of the social
services law, and a non custodial parent or grandparent served with notice pursuant
to paragraph (e) of subdivision two of section three hundred eighty-four-a of the
social services law;
the parent of any child seeking custody or contesting the substantial infringement
his or her right to custody of such child, in any proceeding before the court in
which the court has jurisdiction to determine such custody;
(vi)
any person in any proceeding before the court in which an order or other
determination is being sought to hold such person in contempt of the court or in
willful violation of a previous order of the court, except for a contempt which may
be punished summarily under section seven hundred fifty-five of the judiciary law;
(vii) the parent of a child in any adoption proceeding who opposes the adoption of such
child.
(viii) the respondent in any proceeding under article five of this act in relation to the
establishment of paternity.
(b) Assignment of counsel in other cases. In addition to the cases listed in subdivision (a) of this
section, a judge may assign counsel to represent any adult in a proceeding under this act if he
determines that such assignment of counsel is mandated by the constitution of the state of New York
or of the United States, and includes such determination in the order assigning counsel;
(c) Implementation. Any order for the assignment of counsel issued under this part shall be
implemented as provided in article eighteen-B of the county law.
(iii)
Article 11
Appeals
§ 1118. Applicability of civil practice law and rules
The provisions of the civil practice law and rules apply where appropriate to appeals under this
article, provided, however, that the fees required by section eight thousand twenty-two of the civil
practice law and rules shall not be required where the attorney for the appellant or attorney for the
movant, as applicable, certifies that such appellant or movant has been assigned counsel or a law
guardian pursuant to section two hundred forty-nine, two hundred sixty-two or eleven hundred
twenty of this act or section seven hundred twenty-two of the county law, or is represented by a legal
aid society or a legal services program or other nonprofit organization, which has as its primary
purpose the furnishing of legal services to indigent persons, or by private counsel working on behalf
of or under the auspices of such society or organization. Where the attorney for the appellant or the
attorney for the movant certifies in accordance with procedures established by the appropriate
appellate division that the appellant or movant has been represented in family court by assigned
counsel or a law guardian, pursuant to section two hundred forty-nine, two hundred sixty-two or
eleven hundred twenty of this act or section seven hundred twenty-two of the county law, or is
represented by a legal aid society or legal services program or some other nonprofit organization,
which has as its primary purpose the furnishing of legal services to indigent persons, or by private
counsel working on behalf or under the auspices of such society or organization, and that the
appellant, who has indicated an intention to appeal, or movant, continues to be eligible for
assignment of counsel and, in the case of counsel assigned to represent an adult party, continues to
be indigent, the appellant or movant shall be presumed eligible for poor person relief pursuant to
section eleven hundred one of the civil practice law and rules and for assignment of counsel on
appeal without further motion. The appointment of counsel and granting of poor person relief by the
appellate division shall continue for the purpose of filing a notice of appeal or motion for leave to
appeal to the court of appeals.
§ 1121. Special procedures
1. Consistent with the provisions of sections 354.2, seven hundred sixty and one thousand fifty-two-b
of this act the provisions of this section shall apply to appeals taken from orders issued pursuant to
articles three, seven, ten and ten-A and parts one and two of article six of this act, and pursuant to
sections three hundred fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four, and
three hundred eighty-four-b of the social services law.
2. Upon the filing of such order, it shall be the duty of counsel to the parties and the law guardian
to promptly advise the parties in writing of the right to appeal to the appropriate appellate division
of the supreme court, the time limitations involved, the manner of instituting an appeal and obtaining
a transcript of the testimony and the right to apply for leave to appeal as a poor person if the party
is unable to pay the cost of an appeal. It shall be the further duty of such counsel or law guardian to
explain to the client the procedures for instituting an appeal, the possible reasons upon which an
appeal may be based and the nature and possible consequences of the appellate process.
3. It shall also be the duty of such counsel or law guardian to ascertain whether the party represented
by such attorney wishes to appeal and, if so, to serve and file the necessary notice of appeal and, as
applicable, to apply for leave to appeal as a poor person, to file a certification of continued eligibility
for appointment of counsel pursuant to section eleven hundred eighteen of this article, and to submit
such other documents as may be required by the appropriate appellate division.
4. If the party has been permitted to waive the appointment of a law guardian or counsel appointed
pursuant to section two hundred forty-nine-a or two hundred sixty-two of this act, it shall be the duty
of the court to advise the party of the right to the appointment of a law guardian or counsel for the
purpose of filing an appeal.
5. Where a party wishes to appeal, it shall also be the duty of such counsel or law guardian, where
appropriate, to apply for assignment of counsel for such party pursuant to applicable provisions of
this act, the judiciary law and the civil practice law and rules, and to file a certification of continued
eligibility for appointment of counsel and, in the case of counsel assigned to represent an adult party,
continued indigency, pursuant to section eleven hundred eighteen of this article and to submit such
other documents as may be required by the appropriate appellate division.
6. (a) Except as provided for herein, counsel for the appellant shall, no later than ten days after
filing the notice of appeal, request preparation of the transcript of the proceeding appealed
therefrom.
(b) Counsel assigned or appointed pursuant to article eleven of the civil practice law and rules or
section eleven hundred twenty of this act shall, no later than ten days after receipt of notice of such
appointment, request preparation of the transcript of the proceeding appealed from.
(c) In any case where counsel is assigned or appointed pursuant to paragraph (b) of this subdivision
subsequent to the filing of the notice of appeal, such counsel shall, within ten days of such
assignment or appointment, request preparation of the transcript of the proceeding appealed from.
(d) Where the appellant is seeking relief to proceed as a poor person pursuant to article eleven of the
civil practice law and rules, the transcript of the proceeding appealed from shall be requested within
ten days of the order determining the motion.
7. Such transcript shall be completed within thirty days from the receipt of the request of the
appellant. Where such transcript is not completed within such time period, the court reporter or
director of the transcription service responsible for the preparation of the transcript shall notify the
administrative judge of the appropriate judicial district. Such administrative judge shall establish
procedures to effectuate the timely preparation of such transcript. The appellate divisions may
establish additional procedures to effectuate the timely preparation of transcripts.
The appellate division shall establish procedures to ensure the expeditious filing and service of the
appellant's brief, the answering brief and any reply brief, which may include scheduling orders. The
appellant shall perfect the appeal within sixty days of receipt of the transcript of the proceeding
appealed from or within any different time that the appellate division has by rule prescribed for
perfecting such appeals under subdivision © of rule five thousand five hundred thirty of the civil
practice law and rules or as otherwise specified by the appellate division. Such sixty day or other
prescribed period may be extended by the appellate division for good cause shown upon written
application to the appellate division showing merit to the appeal and a reasonable ground for an
extension of time. Upon the granting of such an extension of time the appellate division shall issue
new specific deadlines by which the appellant's brief, the answering brief and any reply brief must
be filed and served.
JUDICIARY LAW
Article 2
General Provisions Relating to Courts and Judges
§ 35. Assignment of counsel to indigent persons and appointment of physicians in certain
proceedings
1. a. When a court orders a hearing in a proceeding upon a writ of habeas corpus to inquire into the
cause of detention of a person in custody in a state institution, or when it orders a hearing in a civil
proceeding to commit or transfer a person to or retain him in a state institution when such person is
alleged to be mentally ill, mentally defective or a narcotic addict, or when it orders a hearing for the
commitment of the guardianship and custody of a child to an authorized agency by reason of the
mental illness or mental retardation of a parent, or when it orders a hearing to determine whether
consent to the adoption of a child shall be required of a parent who is alleged to be mentally ill or
mentally retarded, or when it orders a hearing to determine the best interests of a child when the
parent of the child revokes a consent to the adoption of such child and such revocation is opposed
or in any adoption or custody proceeding if it determines that assignment of counsel in such cases
is mandated by the constitution of this state or of the United States, the court may assign counsel to
represent such person if it is satisfied that he is financially unable to obtain counsel. Upon an appeal
taken from an order entered in any such proceeding, the appellate court may assign counsel to
represent such person upon the appeal if it is satisfied that he is financially unable to obtain counsel.
b. Upon an appeal in a criminal action or in a proceeding in the family court or surrogate's court
wherein the defendant or person entitled to counsel pursuant to the family court act or surrogate's
court procedure act, is financially unable to obtain counsel, the court of appeals or the appellate
division of the supreme court may assign counsel other than in the manner as is prescribed in section
seven hundred twenty-two of the county law only when it is satisfied that special circumstances
require such assignment.
2. The chief administrator of the courts may enter into an agreement with a legal aid society for the
society to provide assigned counsel in the proceedings specified in subdivision one of this section.
The agreement shall be in a form approved by the chief administrator and shall provide a general
plan for a program of assigned counsel services to be provided by such society. It shall also provide
that the society shall be reimbursed on a cost basis for services rendered.
3. No counsel assigned pursuant to this section shall seek or accept any fee for representing the
person for whom he or she is assigned without approval of the court as herein provided. Whenever
it appears that such person is financially able to obtain counsel or make partial payment for the
representation, counsel may report this fact to the court and the court may terminate the assignment
or authorize payment, as the interests of justice may dictate, to such counsel. Counsel assigned
hereunder shall at the conclusion of the representation receive compensation at a rate of seventy-five
dollars per hour for time expended in court, and seventy-five dollars per hour for time reasonably
expended out of court, and shall receive reimbursement for expenses reasonably incurred. For
representation upon a hearing, compensation and reimbursement shall be fixed by the court wherein
the hearing was held and such compensation shall not exceed four thousand four hundred dollars.
For representation in an appellate court, compensation and reimbursement shall be fixed by such
court and such compensation shall not exceed four thousand four hundred dollars. In extraordinary
circumstances the court may provide for compensation in excess of the foregoing limits.
4. In any proceeding described in paragraph (a) of subdivision one of this section, when a person
is alleged to be mentally ill, mentally defective or a narcotic addict, the court which ordered the
hearing may appoint no more than two psychiatrists, certified psychologists or physicians to examine
and testify at the hearing upon the condition of such person. A psychiatrist, psychologist or physician
so appointed shall, upon completion of his services, receive reimbursement for expenses reasonably
incurred and reasonable compensation for such services, to be fixed by the court. Such compensation
shall not exceed two hundred dollars if one psychiatrist, psychologist or physician is appointed, or
an aggregate sum of three hundred dollars if two psychiatrists, psychologists or physicians are
appointed, except that in extraordinary circumstances the court may provide for compensation in
excess of the foregoing limits.
4-a. In any proceeding under article ten of the mental hygiene law, the court which ordered the
hearing may appoint no more than two psychiatrists, certified psychologists or physicians to examine
and testify at the hearing upon the condition of such person. A psychiatrist, psychologist or physician
so appointed shall, upon completion of his or her services, receive reimbursement for expenses
reasonably incurred and reasonable compensation for such services, to be fixed by the court in
accordance with subdivision (a) of section 10.15 of the mental hygiene law.
5. All expenses for compensation and reimbursement under this section shall be a state charge to
be paid out of funds appropriated to the administrative office for the courts for that purpose. Any
rules and orders respecting the assignment and compensation of counsel, and the appointment and
compensation of psychiatrists, psychologists or physicians pursuant to this section and the form and
manner of processing of a claim submitted pursuant to this section shall be adopted by the chief
administrator. Each claim for compensation and reimbursement pursuant to subdivisions three and
four of this section shall be submitted for approval to the court which made the assignment or
appointment, and shall be on such form as the chief administrator may direct. After such claim is
approved by the court, it shall be certified to the comptroller for payment by the state, out of the
funds appropriated for that purpose.
6. Assigned counsel and guardians ad litem appointed pursuant to the provisions of title two of
article nine-B of the social services law shall be compensated in accordance with the provisions of
this section.
7. Whenever the supreme court or a surrogate's court shall appoint counsel in a proceeding over
which the family court might have exercised jurisdiction had such action or proceeding been
commenced in family court or referred thereto pursuant to law, and under circumstances whereby,
if such proceeding were pending in family court, such court would be authorized by section two
hundred forty-nine of the family court act to appoint a law guardian, such counsel shall be
compensated in accordance with the provisions of this section.
8. Whenever supreme court shall exercise jurisdiction over a matter which the family court might
have exercised jurisdiction had such action or proceeding been commenced in family court or
referred thereto pursuant to law, and under circumstances whereby, if such proceedings were pending
in family court, such court would be required by section two hundred sixty-two of the family court
act to appoint counsel, supreme court shall also appoint counsel and such counsel shall be
compensated in accordance with the provisions of this section.
COUNTY
LAW Article
18-B
Representations of Persons Accused of Crime or Parties
before the Family Court or Surrogate’s Court
§ 722. Plan for representation
The governing body of each county and the governing body of the city in which a county is
wholly contained shall place in operation throughout the county a plan for providing counsel to
persons charged with a crime or who are entitled to counsel pursuant to section two hundred
sixty-two or section eleven hundred twenty of the family court act, article six-C of the correction
law, section four hundred seven of the surrogate's court procedure act or article ten of the mental
hygiene law, who are financially unable to obtain counsel. Each plan shall also provide for
investigative, expert and other services necessary for an adequate defense. The plan shall
conform to one of the following:
1. Representation by a public defender appointed pursuant to county law article eighteen-A.
2. In criminal proceedings, representation by counsel furnished by a private legal aid bureau or
society designated by the county or city, organized and operating to give legal assistance and
representation to persons charged with a crime within the city or county who are financially
unable to obtain counsel. In proceedings under the family court act, representation by a private
legal aid bureau or society, or by any corporation, voluntary association, or organization
permitted to practice law under the authority of subdivision five of section four hundred ninetyfive of the judiciary law.
3. Representation by counsel furnished pursuant to a plan of a bar association in each county or
the city in which a county is wholly contained whereby the services of private counsel are rotated
and coordinated by an administrator, and such administrator may be compensated for such
service. Any plan of a bar association must receive the approval of the state administrator before
the plan is placed in operation. In the county of Hamilton, such representation may be by counsel
furnished by the Fulton county bar association pursuant to a plan of the Fulton county bar
association.
4. Representation according to a plan containing a combination of any of the foregoing. Any
judge, justice or magistrate in assigning counsel pursuant to sections 170.10, 180.10, 210.15 and
720.30 of the criminal procedure law, or in assigning counsel to a defendant when a hearing has
been ordered in a proceeding upon a motion, pursuant to article four hundred forty of the
criminal procedure law, to vacate a judgment or to set aside a sentence or on a motion for a writ
of error coram nobis, or in assigning counsel pursuant to the provisions of section two hundred
sixty-two of the family court act or section four hundred seven of the surrogate's court procedure
act, or in assigning counsel to a defendant when a case has been calendared for consideration of
resentencing pursuant to subdivision four of section six hundred one-d of the correction law or
when a court is otherwise called upon to consider whether a proper term of post-release
supervision was imposed as part of a determinate sentence, shall assign counsel furnished in
accordance with a plan conforming to the requirements of this section; provided, however, that
when the county or the city in which a county is wholly contained has not placed in operation a
plan conforming to that prescribed in this subdivision or subdivision three of this section and the
judge, justice or magistrate is satisfied that a conflict of interest prevents the assignment of
counsel pursuant to the plan in operation, or when the county or the city in which a county is
wholly contained has not placed in operation any plan conforming to that prescribed in this
section, the judge, justice or magistrate may assign any attorney in such county or city and, in
such event, such attorney shall receive compensation and reimbursement from such county or
city which shall be at the same rate as is prescribed in section seven hundred twenty-two-b of this
article. When a case has been calendared for consideration of resentencing pursuant to
subdivision four of section six hundred one-d of the correction law or when a court is otherwise
called upon to consider whether a proper term of post-release supervision was imposed as part of
a determinate sentence, the attorney appointed should be the attorney who appeared for the
defendant in connection with the judgment or sentence or, if the defendant is currently
represented concerning his or her conviction or sentence or with respect to an appeal from his or
her conviction or sentence, such present counsel.
5. In classification proceedings under article six-C of the correction law or from an appeal
thereof, representation shall be according to a plan described in subdivisions one, two, three or
four of this section. If such plan includes representation by a private legal aid bureau or society,
such private legal aid bureau or society shall have been designated to give legal assistance and
representation to persons charged with a crime.
Upon an appeal in a criminal action, and on any appeal described in section eleven hundred
twenty of the family court act, article six-C of the correction law or section four hundred seven of
the surrogate's court procedure act, wherein the party is financially unable to obtain counsel, the
appellate court shall assign counsel furnished in accordance with the plan, conforming to the
requirements of this section, which is in operation in the county or in the city in which a county is
wholly contained wherein the judgment of conviction, disposition, or order of the trial court was
entered; provided, however, that when such county or city has not placed in operation a plan
conforming to that prescribed in subdivision three or four of this section and such appellate court
is satisfied that a conflict of interest prevents the assignment of counsel pursuant to the plan in
operation, or when such county or city has not placed in operation any plan conforming to that
prescribed in this section, such appellate court may assign any attorney in such county or city
and, in such event, such attorney shall receive compensation and reimbursement from such
county or city which shall be at the same rate as is prescribed in section seven hundred twentytwo-b of this chapter.
§ 722-a. Definition of crime
For the purposes of this article, the term "crime" shall mean a felony, misdemeanor, or the breach
of any law of this state or of any law, local law or ordinance of a political subdivision of this state,
other than one that defines a "traffic infraction," for which a sentence to a term of imprisonment is
authorized upon conviction thereof.
§ 722-b. Compensation and reimbursement for representation
1. All counsel assigned in accordance with a plan of a bar association conforming to the
requirements of section seven hundred twenty-two of this article whereby the services of private
counsel are rotated and coordinated by an administrator shall at the conclusion of the representation
receive:
(a) for representation of a person entitled to representation by law who is initially charged with a
misdemeanor or lesser offense and no felony, compensation for such misdemeanor or lesser offense
representation at a rate of sixty dollars per hour for time expended in court or before a magistrate,
judge or justice, and sixty dollars per hour for time reasonably expended out of court, and shall
receive reimbursement for expenses reasonably incurred; and
(b) for representation of a person in all other cases governed by this article, including all
representation in an appellate court, compensation at a rate of seventy-five dollars per hour for time
expended in court before a magistrate, judge or justice and seventy-five dollars per hour for time
reasonably expended out of court, and shall receive reimbursement for expenses reasonably incurred.
2. Except as provided in this section, compensation for time expended in providing
representation:
(a) pursuant to paragraph (a) of subdivision one of this section shall not exceed two thousand
four hundred dollars; and
(b) pursuant to paragraph (b) of subdivision one of this section shall not exceed four thousand
four hundred dollars.
3. For representation on an appeal, compensation and reimbursement shall be fixed by the appellate
court. For all other representation, compensation and reimbursement shall be fixed by the trial court
judge. In extraordinary circumstances a trial or appellate court may provide for compensation in
excess of the foregoing limits and for payment of compensation and reimbursement for expenses
before the completion of the representation.
4. Each claim for compensation and reimbursement shall be supported by a sworn statement
specifying the time expended, services rendered, expenses incurred and reimbursement or
compensation applied for or received in the same case from any other source.
No counsel assigned hereunder shall seek or accept any fee for representing the party for whom
he or she is assigned without approval of the court as herein provided.
§ 722-c. Services other than counsel
Upon a finding in an ex parte proceeding that investigative, expert or other services are necessary
and that the defendant or other person described in section two hundred forty-nine or section two
hundred sixty-two of the family court act, article six-C of the correction law or section four hundred
seven of the surrogate's court procedure act, is financially unable to obtain them, the court shall
authorize counsel, whether or not assigned in accordance with a plan, to obtain the services on behalf
of the defendant or such other person. The court upon a finding that timely procurement of necessary
services could not await prior authorization may authorize the services nunc pro tunc. The court shall
determine reasonable compensation for the services and direct payment to the person who rendered
them or to the person entitled to reimbursement. Only in extraordinary circumstances may the court
provide for compensation in excess of one thousand dollars per investigative, expert or other service
provider.
Each claim for compensation shall be supported by a sworn statement specifying the time expended,
services rendered, expenses incurred and reimbursement or compensation applied for or received in
the same case from any other source.
§ 722-d. Duration of assignment
Whenever it appears that the defendant is financially able to obtain counsel or to make partial
payment for the representation or other services, counsel may report this fact to the court and the
court may terminate the assignment of counsel or authorize payment, as the interests of justice may
dictate, to the public defender, private legal aid bureau or society, private attorney, or otherwise.
§ 722-e. Expenses
All expenses for providing counsel and services other than counsel hereunder shall be a county
charge or in the case of a county wholly located within a city a city charge to be paid out of an
appropriation for such purposes.
CIVIL PRACTICE LAW AND RULES
a.
Article
11 Poor Persons
§ 1101. Motion for permission to proceed as a poor person; affidavit; certificate; notice;
waiver of fee; when motion not required
(a) Motion; affidavit. Upon motion of any person, the court in which an action is triable, or to which
an appeal has been or will be taken, may grant permission to proceed as a poor person. Where a
motion for leave to appeal as a poor person is brought to the court in which an appeal has been or
will be taken, such court shall hear such motion on the merits and shall not remand such motion to
the trial court for consideration. The moving party shall file an affidavit setting forth the amount and
sources of his or her income and listing his or her property with its value; that he or she is unable to
pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond
to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be
ascertained; and whether any other person is beneficially interested in any recovery sought and, if
so, whether every such person is unable to pay such costs, fees and expenses. An executor,
administrator or other representative may move for permission on behalf of a deceased, infant or
incompetent poor person.
(b) Certificate. The court may require the moving party to file with the affidavit a certificate of an
attorney stating that the attorney has examined the action and believes there is merit to the moving
party's contentions.
(c) Notice. Except as provided in subdivisions (d) and (e) of this section, if an action has already
been commenced, notice of the motion shall be served on all parties, and notice shall also be given
to the county attorney in the county in which the action is triable or the corporation counsel if the
action is triable in the city of New York.
(d) [Expires and repealed Sept 1, 2009] Waiver of fee in certain cases. Except as otherwise provided
in subdivision (f) of this section, if applicable, a plaintiff may seek to commence his or her action
without payment of the fee required by filing the form affidavit, attesting that such plaintiff is unable
to pay the costs, fees and expenses necessary to prosecute or defend the action, which shall be
available in the clerk's office along with the summons and complaint or summons with notice or
third-party summons and complaint. The case will be given an index number, or, in courts other than
the supreme or county courts, any necessary filing number and the application will be submitted to
a judge of the court. If the court approves the application, the plaintiff will by written order be given
notice that all fees and costs relating to the filing and service shall be waived. If the court denies the
application the plaintiff will by written order be given notice that the case will be dismissed if the
fee is not paid within one hundred twenty days of the date of the order.
(e) When motion not required. Where a party is represented in a civil action by a legal aid society
or a legal services or other nonprofit organization, which has as its primary purpose the furnishing
of legal services to indigent persons, or by private counsel working on behalf of or under the
auspices of such society or organization, all fees and costs relating to the filing and service shall be
waived without the necessity of a motion and the case shall be given an index number, or, in a court
other than the supreme or county court, an appropriate filing number, provided that a determination
has been made by such society, organization or attorney that such party is unable to pay the costs,
fees and expenses necessary to prosecute or defend the action, and that an attorney's certification that
such determination has been made is filed with the clerk of the court along with the summons and
complaint or summons with notice or third-party summons and complaint or otherwise provided to
the clerk of the court. Where an attorney certifies, pursuant to section eleven hundred eighteen of the
family court act, and in accordance with procedures of the appropriate appellate division, that a party
or child who is the subject of an appeal has been represented in the family court by assigned counsel
or a law guardian or by a legal aid society or a legal services or other nonprofit organization, which
has as its primary purpose the furnishing of legal services to indigent persons, or by private counsel
working on behalf of or under the auspices of such society or organization, and, in the case of a
counsel assigned to an adult party, that the party continues to be indigent, the party or child shall be
presumed eligible for poor person relief pursuant to this section.
(f) [Expires Sept 1, 2009] Fees for inmates.
1. Notwithstanding any other provision of law to the contrary, a federal, state or local inmate under
sentence for conviction of a crime may seek to commence his or her action or proceeding by paying
a reduced filing fee as provided in paragraph two of this subdivision. Such inmate shall file the form
affidavit referred to in subdivision (d) of this section along with the summons and complaint or
summons with notice or third-party summons and complaint or petition or notice of petition or order
to show cause. As part of such application, the inmate shall indicate the name and mailing address
of the facility at which he or she is confined along with the name and mailing address of any other
federal, state or local facility at which he or she was confined during the preceding six month period.
The case will be given an index number if applicable, or, in courts other than the supreme or county
courts, any necessary filing number and the application will be submitted to a judge of the court.
Upon receipt of the application, the court shall obtain from the appropriate official of the facility at
which the inmate is confined a certified copy of the inmate's trust fund account statement (or
institutional equivalent) for the six month period preceding filing of the inmate's application. If the
inmate has been confined for less than six months at such facility, the court shall obtain additional
information as follows:
(i) in the case of a state inmate who has been transferred from another state correctional
facility, the court shall obtain a trust fund account statement for the six month period from
the central office of the department of correctional services in Albany; or
(ii) in the case of a state inmate who is newly transferred from a federal or local correctional
facility, the court shall obtain any trust fund account statement currently available from such
facility. The court may, in its discretion, seek further information from the prior or current
facility.
2. If the court determines that the inmate has insufficient means to pay the full filing fee, the court
may permit the inmate to pay a reduced filing fee, the minimum of which shall not be less than
fifteen dollars and the maximum of which shall not be more than fifty dollars. The court shall require
an initial payment of such portion of the reduced filing fee as the inmate can reasonably afford or
shall authorize no initial payment of the fee if exceptional circumstances render the inmate unable
to pay any fee; provided however, that the difference between the amount of the reduced filing fee
and the amount paid by the inmate in the initial partial payment shall be assessed against the inmate
as an outstanding obligation to be collected either by the superintendent or the municipal official of
the facility at which the inmate is confined, as the case maybe, in the same manner that mandatory
surcharges are collected as provided for in subdivision five of section 60.35 of the penal law. The
court shall notify the superintendent or the municipal official of the facility where the inmate is
housed of the amount of the reduced filing fee that was not directed to be paid by the inmate.
Thereafter, the superintendent or the municipal official shall forward to the court any fee obligations
that have been collected, provided however, that:
(i) in no event shall the filing fee collected exceed the amount of fees required for the
commencement of an action or proceeding; and
(ii) in no event shall an inmate be prohibited from proceeding for the reason that the
inmate has no assets and no means by which to pay the initial partial filing fee.
3. The institution at which an inmate is confined, or the central office for the department of
correctional services, whichever is applicable, shall promptly provide the trust fund account
statement to the inmate as required by this subdivision.
4. Whenever any federal, state or local inmate obtains a judgment in connection with any action or
proceeding which exceeds the amount of the filing fee, paid in accordance with the provisions of this
subdivision for commencing such action or proceeding, the court shall award to the prevailing
inmate, as a taxable disbursement, the actual amount of any fee paid to commence the action or
proceeding.
5. The provisions of this subdivision shall not apply to a proceeding commenced pursuant to article
seventy-eight of this chapter which alleges a failure to correctly award or certify jail time credit due
an inmate, in violation of section six hundred-a of the correction law and section 70.30 of the penal
law.
§ 1102. Privileges of poor person
(a) Attorney. The court in its order permitting a person to proceed as a poor person may assign
an attorney.
(b) Stenographic transcript. Where a party has been permitted by order to appeal as a poor person,
the court clerk, within two days after the filing of said order with him, shall so notify the court
stenographer, who, within twenty days of such notification shall make and certify two typewritten
transcripts of the stenographic minutes of said trial or hearing, and shall deliver one of said
transcripts to the poor person or his attorney, and file the other with the court clerk together with an
affidavit of the fact and date of such delivery and filing. The expense of such transcripts shall be a
county charge or, in the counties within the city of New York, a city charge, as the case may be,
payable to the stenographer out of the court fund upon the certificate of the judge presiding at the
trial or hearing. A poor person may be furnished with a stenographic transcript without fee by order
of the court in proceedings other than appeal, the fee therefor to be paid by the county or, in the
counties within the city of New York by the city, as the case may be, in the same manner as is paid
for transcripts on appeal. Notwithstanding this or any other provision of law, fees paid for
stenographic transcripts with respect to those proceedings specified in paragraph (a) of subdivision
one of section thirty-five of the judiciary law shall be paid by the state in the manner prescribed by
subdivision four of section thirty-five of the judiciary law.
(c)Appeals. On an appeal or motion for permission to appeal a poor person may submit
typewritten briefs and appendices, furnishing one legible copy for each appellate justice.
(d) Costs and fees. A poor person shall not be liable for the payment of any costs or fees unless a
recovery by judgment or by settlement is had in his favor in which event the court may direct him
to pay out of the recovery all or part of the costs and fees, a reasonable sum for the services and
expenses of his attorney and any sum expended by the county or city under subdivision (b).
b. Article 12
Infants, Incompetents and Conservatees
R 1202. Appointment of guardian ad litem
(a) By whom motion made. The court in which an action is triable may appoint a guardian ad
litem at any stage in the action upon its own initiative or upon the motion of:
1. an infant party if he is more than fourteen years of age; or
2. a relative, friend or a guardian, committee of the property, or conservator; or
3. any other party to the action if a motion has not been made under paragraph one or two
within ten days after completion of service.
(b) Notice of motion. Notice of a motion for appointment of a guardian ad litem for a person shall
be served upon the guardian of his property, upon his committee or upon his conservator, or if he
has no such guardian, committee, or conservator, upon the person with whom he resides. Notice shall
also be served upon the person who would be represented if he is more than fourteen years of age
and has not been judicially declared to be incompetent.
(c) Consent. No order appointing a guardian ad litem shall be effective until a written consent of the
proposed guardian has been submitted to the court together with an affidavit stating facts showing
his ability to answer for any damage sustained by his negligence or misconduct.
§ 1204. Compensation of guardian ad litem
A court may allow a guardian ad litem a reasonable compensation for his services to be paid in
whole or part by any other party or from any recovery had on behalf of the person whom such
guardian represents or from such person's other property. No order allowing compensation shall be
made except on an affidavit of the guardian or his attorney showing the services rendered.
RULES OF THE CHIEF ADMINISTRATOR OF THE COURTS
Part 127
Assignment and Compensation of Counsel, Psychiatrists, Psychologists and Physicians
§ 127.1 Assignment and compensation of counsel, psychiatrists, psychologists
and physicians
(a) Assignments and appointments of counsel, psychiatrists, psychologists, physicians and social
workers shall be made by the court in accordance with such rules as may be adopted by each
Appellate Division. Each Appellate Division may compile and maintain such lists of attorneys,
psychiatrists, psychologists, physicians and social workers as it shall deem appropriate for the
implementation of its rules. Such rules may provide that the appointment of psychiatrists,
psychologists, physicians and social workers shall be made after consultation with the Mental
Hygiene Legal Service.
(b) Each claim by assigned counsel, psychiatrist, psychologist or physician or social worker payable
from State funds for services rendered to indigent persons, pursuant to section 35 of the Judiciary
Law, shall be submitted on forms authorized by the Chief Administrator of the Courts for approval
within 45 days after completion of service to the court which made assignment. Upon approval, the
court shall thereupon, within 15 days after receipt, forward such claims to the appropriate Appellate
Division for certification to the Comptroller for payment. If the initial assignment is made by either
an Appellate Division or the Court of Appeals, the claim shall be submitted on a form promulgated
by the Chief Administrator for approval to the Appellate Division or Court of Appeals, and
thereafter, upon receipt of such approval, it shall be certified to the Comptroller for payment.
§ 127.2 Compensation of counsel and other providers in extraordinary circumstances
(a) Whenever an attorney, psychiatrist, psychologists, physician, or a person providing investigative,
expert or other services, seeks compensation in excess of the statutory limits prescribed by Article
18-B of the County Law or section 35 of the Judiciary Law, because of extraordinary circumstances,
he or she shall submit with his or her claim a detailed affidavit stating the nature of the proceeding,
the manner in which the time was expended, the necessity therefor, and all other facts that
demonstrate extraordinary circumstances. If the claim is by an attorney, the attorney shall state the
disposition of the matter.
(b) The order of the trial judge with respect to a claim for compensation in excess of the statutory
limits may be reviewed by the appropriate administrative judge, with or without application, who
may modify the award if it is found that the award reflects an abuse of discretion by the trial judge.
Any order modifying a trial judge's award shall be in writing.
(c) An application for review may be made by any person or governmental body affected by the
order.
§ 127.4 Compensation of law guardians
Claims by law guardians for compensation, expenses and disbursements pursuant to section 245 of
the Family Court Act and section 35 of the Judiciary Law shall be determined pursuant to the rules
of the appropriate Appellate Division.
§ 127.5 Workload of the attorney for the child
(a) Subject to adjustment based on the factors set forth in subdivision (b), the number of children
represented at any given time by an attorney appointed pursuant to section 249 of the Family Court
Act shall not exceed 150.
(b) For representation provided under an agreement pursuant to section 243(a) and (b) of the Family
Court Act, the workload standards set forth in subdivision (a)maybe adjusted based on such factors
as:
(1) Differences among categories of cases that comprise the workload of the office covered by
the agreement;
(2) The level of activity required at different phases of the proceeding;
(3) The weighting of different categories and phases of cases;
(4) Availability and use of support staff;
(5) The representation of multiple children in a case;
(6) Local court practice, including the duration of a case;
(7) Other relevant considerations.
(c) The administrators of offices pursuant to such agreements shall be responsible for managing
resources and for allocating cases among staff attorneys to promote the effective representation of
children and to ensure that the average workload of the attorneys for children in the office complies
with the standards set forth in subdivision (a) as modified by subdivision (b).
(d) For representation provided by a panel of attorneys for children pursuant to section 243© of the
Family Court Act, the Appellate Division may adjust the workload standards of subdivision (a) to
ensure the effective representation of children.
(e) The Chief Administrator of the Courts, with respect to representation pursuant to section 243(a)
of the Family Court Act, and the Appellate Divisions, with respect to representation pursuant to
section 243(b) and © of the Family Court Act, shall annually, at the time of the preparation and
submission of the judiciary budget, review the workload of such offices and panels, and shall take
action to assure compliance with this rule.
RULES OF THE CHIEF JUDGE
Part 36
Appointments by the Court
A member of the Panel of Counsel for Children and Parents MUST register with the Office of Court
Administration pursuant to Rule 36 of the Rules of the Chief Judge in order to be eligible to accept
assignment as Counsel for the Child where private parties will pay for the representation.
Applications for appointment can be found at www.nycourts.gov/ip/gfs.
§ 36.0 Preamble
Public trust in the judicial process demands that appointments by judges be fair, impartial and
beyond reproach. Accordingly, these rules are intended to ensure that appointees are selected on the
basis of merit, without favoritism, nepotism, politics or other factors unrelated to the qualifications
of the appointee or the requirements of the case.
The rules cannot be written in a way that foresees every situation in which they should be applied.
Therefore, the appointment of trained and competent persons, and the avoidance of factors unrelated
to the merit of the appointments or the value of the work performed are the fundamental objectives
that should guide all appointments made, and orders issued, pursuant to this Part.
§ 36.1 Application
(a) Except as set forth in subdivision (b), this Part shall apply to the following appointments
made by any judge or justice of the Unified Court System:
(1) guardians;
(2) guardians ad litem, including guardians ad litem appointed to investigate and report to the
court on particular issues, and their counsel and assistants;
(3) law guardians who are not paid from public funds, in those judicial departments where their
appointments are authorized;
(4) court evaluators;
(5) attorneys for alleged incapacitated persons;
(6) court examiners;
(7) supplemental needs trustees;
(8) receivers;
(9) referees (other than special masters and those other wise performing judicial functions in a
quasi judicial capacity);
(10) the following persons or entities performing services for guardians or receivers:
(i) counsel
(ii) accountants
( i i i )
auctioneers (iv)
appraisers
(v) property managers
(vi) real estate brokers
(11) a public administrator within the City of New York and for the counties of Westchester,
Onondaga, Erie, Monroe, Suffolk and Nassau and counsel to the public administrator, except that
only sections 36.2© and 36.4(e) of this Part shall apply, and that section 36.2© shall not apply to
incumbents in these positions until one year after the effective date of this paragraph.
(b) Except for sections 36.2(c)(6) and 36.2(c)(7), this Part shall not apply to:
(1) appointments of law guardians pursuant to section 243 of the Family Court Act, guardians ad
litem pursuant to section 403-a of the Surrogate's Court Procedure Act, or the Mental Hygiene Legal
Service;
(2) the appointment of, or the appointment of any persons or entities performing services for, any
of the following:
(i) a guardian who is a relative of (A) the subject of the guardianship proceeding or (B)
the beneficiary of a proceeding to create a supplemental needs trust; a person or entity
nominated as guardian by the subject of the proceeding or proposed as guardian by a
party to the proceeding; a supplemental needs trustee nominated by the beneficiary of a
supplemental needs trust or proposed by a proponent of the trust; or a person or entity
having a legally recognized duty or interest with respect to the subject of the proceeding;
(ii) a guardian ad litem nominated by an infant of 14 years of age or over;
(iii) a nonprofit institution performing property management or personal needs services,
or acting as court evaluator;
(iv) a bank or trust company as a depository for funds or as a supplemental needs trustee;
(v) except as set forth in section 36.1(a)(11), a public official vested with the powers of
an administrator;
(vi) a person or institution whose appointment is required by law;
(vii) a physician whose appointment as a guardian ad litem is necessary where emergency
medical or surgical procedures are required.
(3) an appointment other than above without compensation, except that the appointee must file a
notice of appointment pursuant to section 36.4(a) of this Part.
§ 36.2 Appointments
(i) Appointments by the judge. All appointments of the persons or entities set forth in section 36.1,
including those persons or entities set forth in section 36.1(a)(10) who perform services for guardians
or receivers, shall be made by the judge authorized by law to make the appointment. In making
appointments of persons or entities to perform services for guardians or receivers, the appointing
judge may consider the recommendation of the guardian or receiver.
(ii) Use of lists. (1) All appointments pursuant to this Part shall be made by the appointing judge
from the appropriate list of applicants established by the Chief Administrator of the Courts pursuant
to section 36.3 of this Part.
(2) An appointing judge may appoint a person or entity not on the appropriate list of applicants upon
a finding of good cause, which shall be set forth in writing and shall be filed with the fiduciary clerk
at the time of the making of the appointment. The appointing judge shall send a copy of such writing
to the Chief Administrator. A judge may not appoint a person or entity that has been removed from
a list pursuant to section 36.3(e).
(3) Appointments made from outside the lists shall remain subject to all of the requirements and
limitations set forth in this Part, except that the appointing judge may waive any education and
training requirements where completion of these requirements would be impractical.
(c) Disqualifications from appointment.
(1) No person shall be appointed who is a judge or housing judge of the Unified Court System of the
State of New York, or who is a relative of, or related by marriage to, a judge or housing judge of the
Unified Court System within the fourth degree of relationship.
(2) No person serving as a judicial hearing officer pursuant to Part 122 of the Rules of the Chief
Administrator shall be appointed in actions or proceedings in a court in a county where he or she
serves on a judicial hearing officer panel for such court.
(3) No person shall be appointed who is a full-time or part-time employee of the Unified Court
System. No person who is the spouse, sibling, parent or child of an employee who holds a position
at salary grade JG24 or above, or its equivalent, shall be appointed by a court within the judicial
district where the employee is employed or, with respect to an employee with statewide
responsibilities, by any court in the state.
(4)(I) No person who is the chair or executive director, or their equivalent, of a state or county
political party, or the spouse, sibling, parent or child of that official, shall be appointed while that
official serves in that position and for a period of two years after that official no longer holds that
position. This prohibition shall apply to the members, associates, counsel and employees of any law
firms or entities while the official is associated with that firm or entity.
(ii) No person who has served as a campaign chair, coordinator, manager, treasurer or finance chair
for a candidate for judicial office, or the spouse, sibling, parent or child of that person, or anyone
associated with the law firm of that person, shall be appointed by the judge for whom that service
was performed for a period of two years following the judicial election. If the candidate is a sitting
judge, the disqualifications shall apply as well from the time the person assumes any of the above
roles during the campaign for judicial office.
(5) No former judge or housing judge of the Unified Court System, or the spouse, sibling, parent or
child of such judge, shall be appointed, within two years from the date the judge left judicial office,
by a court within the jurisdiction where the judge served. Jurisdiction is defined as follows:
(i) The jurisdiction of a judge of the Court of Appeals shall be statewide.
(ii) The jurisdiction of a justice of an Appellate Division shall be the judicial department
within which the justice served.
(iii) The jurisdiction of a justice of the Supreme Court and a judge of the Court of Claims
shall be the principal judicial district within which the justice or judge served.
(iv) With respect to all other judges, the jurisdiction shall be the principal county within
which the judge served.
(6) No attorney who has been disbarred or suspended from the practice of law shall be appointed
during the period of disbarment or suspension.
(7) No person convicted of a felony, or for five years following the date of sentencing after
conviction of a misdemeanor (unless otherwise waived by the Chief Administrator upon application),
shall be appointed unless that person receives a certificate of relief from disabilities.
(8) No receiver or guardian shall be appointed as his or her own counsel, and no person associated
with a law firm of that receiver or guardian shall be appointed as counsel to that receiver or guardian,
unless there is a compelling reason to do so.
(9) No attorney for an alleged incapacitated person shall be appointed as guardian to that person,
or as counsel to the guardian of that person.
(10) No person serving as a court evaluator shall be appointed as guardian for the incapacitated
person except under extenuating circumstances that are set forth in writing and filed with the
fiduciary clerk at the time of the appointment.
(d) Limitations on appointments based upon compensation. (1) No person or entity shall be eligible
to receive more than one appointment within a calendar year for which the compensation anticipated
to be awarded to the appointee in any calendar year exceeds the sum of $ 15,000.
(2) If a person or entity has been awarded more than an aggregate of $ 75,000 in compensation by
all courts during any calendar year, the person or entity shall not be eligible for compensated
appointments by any court during the next calendar year.
(3) For purposes of this Part, the term "compensation" shall mean awards by a court of fees,
commissions, allowances or other compensation, excluding costs and disbursements.
(4) These limitations shall not apply where the appointment is necessary to maintain continuity of
representation of or service to the same person or entity in further or subsequent proceedings.
§ 36.3 Procedure for appointment
(a) Application for appointment. The Chief Administrator shall provide for the application by
persons or entities seeking appointments pursuant to this Part on such forms as shall be promulgated
by the Chief Administrator. The forms shall contain such information as is necessary to establish that
the applicant meets the qualifications for the appointments covered by this Part and to apprise the
appointing judge of the applicant's background.
(b) Qualifications for appointment. The Chief Administrator shall establish requirements of
education and training for placement on the list of available applicants. These requirements shall
consist, as appropriate, of substantive issues pertaining to each category of appointment -- including
applicable law, procedures, and ethics -- as well as explications of the rules and procedures
implementing the process established by this Part. Education and training courses and programs shall
meet the requirements of these rules only if certified by the Chief Administrator. Attorney
participants in these education and training courses and programs may be eligible for continuing
legal education credit in accordance with the requirements of the Continuing Legal Education Board.
(c) Establishment of lists. The Chief Administrator shall establish separate lists of qualified
applicants for each category of appointment, and shall make available such information as will
enable the appointing judge to be apprised of the background of each applicant. The Chief
Administrator may establish more than one list for the same appointment category where appropriate
to apprise the appointing judge of applicants who have substantial experience in that category.
Pursuant to section 81.32(b) of the Mental Hygiene Law, the Presiding Justice of the appropriate
Appellate Division shall designate the qualified applicants on the lists of court examiners established
by the Chief Administrator.
(d) Reregistration. The Chief Administrator shall establish a procedure requiring that each person
or entity on a list reregister every two years in order to remain on the list.
(e) Removal from list. The Chief Administrator may remove any person or entity from any list for
unsatisfactory performance or any conduct incompatible with appointment from that list, or if
disqualified from appointment pursuant to this Part. A person or entity may not be removed except
upon receipt of a written statement of reasons for the removal and an opportunity to provide an
explanation and to submit facts in opposition to the removal.
§ 36.4 Procedure after appointment
(a) Notice of appointment and certification of compliance. (1) Every person or entity appointed
pursuant to this Part shall file with the fiduciary clerk of the court from which the appointment is
made, within 30 days of the making of the appointment, (I) a notice of appointment and (ii) a
certification of compliance with this Part, on such form as promulgated by the Chief Administrator.
Copies of this form shall be made available at the office of the fiduciary clerk and shall be
transmitted by that clerk to the appointee immediately after the making of the appointment by the
appointing judge. An appointee who accepts an appointment without compensation need not
complete the certification of compliance portion of the form.
(2) The notice of appointment shall contain the date of the appointment and the nature of the
appointment.
(3) The certification of compliance shall include: (I) a statement that the appointment is in
compliance with sections 36.2© and (d); and (ii) a list of all appointments received, or for which
compensation has been awarded, during the current calendar year and the year immediately
preceding the current calendar year, which shall contain (A) the name of the judge who made each
appointment, (B) the compensation awarded, and © where compensation remains to be awarded, (I)
the compensation anticipated to be awarded and (ii) separate identification of those appointments
for which compensation of $ 15,000 or more is anticipated to be awarded during any calendar year.
The list shall include the appointment for which the filing is made.
(4) A person or entity who is required to complete the certification of compliance, but who is unable
to certify that the appointment is in compliance with this Part, shall immediately so inform the
appointing judge.
(b) Approval of compensation. (1) Upon seeking approval of compensation of more than $ 500, an
appointee must file with the fiduciary clerk, on such form as is promulgated by the Chief
Administrator, a statement of approval of compensation, which shall contain a confirmation to be
signed by the fiduciary clerk that the appointee has filed the notice of appointment and certification
of compliance.
(2) A judge shall not approve compensation of more than $ 500, and no compensation shall be
awarded, unless the appointee has filed the notice of appointment and certification of compliance
form required by this Part and the fiduciary clerk has confirmed to the appointing judge the filing
of that form.
(3) Each approval of compensation of $ 5,000 or more to appointees pursuant to this section shall
be accompanied by a statement, in writing, of the reasons therefor by the judge. The judge shall file
a copy of the order approving compensation and the statement with the fiduciary clerk at the time
of the signing of the order.
(4) Compensation to appointees shall not exceed the fair value of services rendered. Appointees who
serve as counsel to a guardian or receiver shall not be compensated as counsel for services that
should have been performed by the guardian or receiver.
(c) Reporting of compensation received by law firms. A law firm whose members, associates and
employees have had a total of $ 50,000 or more in compensation approved in a single calendar year
for appointments made pursuant to this Part shall report such amounts on a form promulgated by the
Chief Administrator.
(d) Exception. The procedure set forth in this section shall not apply to the appointment of a referee
to sell real property and a referee to compute whose compensation for such appointments is not
anticipated to exceed $ 750.
(e) Approval and reporting of compensation received by counsel to the public administrator.
(1) A judge shall not approve compensation to counsel to the public administrator in excess of the
fee schedule promulgated by the administrative board of the public administrator under SCPA 1128
unless accompanied by the judge's statement, in writing, of the reasons therefor, and by the
appointee's affidavit of legal services under SCPA 1108 setting forth in detail the services rendered,
the time spent, and the method or basis by which the requested compensation was determined.
(2) Any approval of compensation in excess of the fee schedule promulgated by the administrative
board of the public administrator shall be reported to the Office of Court Administration on a form
promulgated by the Chief Administrator and shall be accompanied by a copy of the order approving
compensation, the judge's written statement, and the counsel's affidavit of legal services, which
records shall be published as determined by the Chief Administrator.
(3) Each approval of compensation of $ 5,000 or more to counsel shall be reported to the Office of
Court Administration on a form promulgated by the Chief Administrator and shall be published as
determined by the Chief Administrator.
§ 36.5 Publication of appointments
(a) All forms filed pursuant to section 36.4 shall be public records.
(b) The Chief Administrator shall arrange for the periodic publication of the names of all persons
and entities appointed by each appointing judge, and the compensation approved for each
appointee.
RULES OF THE APPELLATE DIVISION, FIRST DEPARTMENT
a.
Part 611
Attorneys for Children Plan
§ 611.1 Introduction
(a)(1) The Family Court panels now established in the First Judicial Department pursuant to article
18-B of the County Law and pertinent provisions of the Family Court Act, shall continue in effect
and shall constitute the Family Court Panel Plan in the First Judicial Department.
(2) The roster of attorneys for children certified pursuant to the Rules of the Chief Administrator
Part 36 and the former Rules of the Court Part 614, to accept appointment as an attorney for a child
pursuant to Family Court section 249(a), Civil Practice Law and Rules section 1202, or Uniform
Rules of the Trial Court section 202.16(f)(3), shall continue in effect in this department as part of
the Attorneys for Children Plan.
(3) The Family Court Panel Plan and the attorneys for children roster are merged to form the
Attorneys for Children . An attorney certified for appointment in one capacity shall be deemed
certified for appointment in the other capacity and by virtue of the certification agrees to accept
assignments and appointments in Supreme Court or Family Court.
(b) The Director of the Office Attorneys for Children, appointed by the Presiding Justice of the
Appellate Division, First Department, shall administer the Attorneys for Children Plan.
§ 611.2 Assignment of counsel in Family Court
Counsel to be assigned pursuant to the Family Court Act, section 262, shall be selected from
such panels as have been established by the assigned counsel plan in the First Judicial
Department.
§ 611.3 Appointment of Attorneys for Children in Family Court
Where for sufficient reason attorneys for children to be appointed pursuant to the Family Court Act,
section 249, cannot otherwise be designated as provided in section 243(a) of such act, the court may
draw upon such panels as have been established by the assigned counsel plan for the First Judicial
Department as if such panels had been separately established pursuant to section 243© of such act.
§ 611.4 Certification of attorneys
Certification of an attorney as a member of any panel of the Attorneys for Children Plan shall be
for a one year term subject to:
(a) annual redesignation pursuant to Family Court Act, section 244(b); and
(b) recertification as directed by the justices of the Appellate Division, First Department.
§ 611.5 Departmental Advisory Committee
Commencing January 1, 1980, the justices of the Appellate Division, First Department
established a Departmental Advisory Committee. This committee shall remain in operation and
have the authority and responsibility to oversee the operation of the Attorneys for Children Plan
and to consider all matters that pertain to the qualifications, performance and professional
conduct of individual plan attorneys in their assignments and appointments as plan attorneys, and
the representation of indigent parties in Family Court proceedings.
§ 611.6 Composition of the Departmental Advisory Committee
(a) The committee shall be composed of no fewer than 15 attorneys who shall be experienced in
Family Court and domestic relations proceedings, three Family Court Judges, one mental health
expert, one representative from each of the three bar associations designated in section 612.3 of this
Title, one faculty member of an accredited law school in the First Judicial Department, the Director
of the Office Attorneys for Children and the Assigned Counsel Plan Administrator.
(b) The justices of the Appellate Division, First Department shall nominate all committee members,
except the representatives of the three bar associations, who shall be nominated by the respective
presidents of those associations. The presiding Justice may appoint such additional members to the
committee as will facilitate its operation. The term of appointment for each committee member,
except the Director of the Office Attorneys for Children and Assigned Counsel Plan Administrator,
shall be staggered and for a period of three years subject to renomination by the justices of the
Appellate Division. The term of appointment for the Director of the Office Attorneys for Children
and the Assigned Counsel Plan Administrator shall be coextensive with the term of their respective
positions.
(c) The Presiding Justice shall designate a chair and vice-chair of the committee.
§ 611.7 Duties of the Departmental Advisory Committee
The Departmental Advisory Committee shall conduct its activities and carry out the duties
enumerated in this Part pursuant to the bylaws of the Assigned Counsel Plan Central Screening
Committee, set forth in Part 612 of this Title. The Director of the Office Attorneys for Children shall
be substituted where reference in the bylaws is made to the administrator.
§ 611.8 Screening process
(a) All applicants for plan membership shall be screened by the Departmental Advisory
Committee.
(b) The committee, in accordance with standards for admission to the panels, entitled "General
Requirements for All Applicants to the Family Court Panels" and "General Requirements for
Attorneys for Children to Qualify for Appointment in Domestic Relations Matters", shall make a
determination as to whether an attorney is qualified for membership on any of the panels.
§ 611.9 Continuing legal education
(a) The Departmental Advisory Committee, in cooperation with the Assigned Counsel Plan, the
Continuing Legal Education Office and the three bar associations designated in section 612.3 of this
Title, shall:
(1) on a continuing basis, develop and conduct training and education programs that focus on
Domestic Relations Law and Practice before the Family Court;
(2) annually promulgate a list of recommended training and education programs pertaining to
domestic relations and family law sponsored by independent providers of legal education; and
(3) organize and operate a co-counsel program.
(b) Members of the Attorneys for Children Plan biennially must complete at least eight hours of
training and education programs that are either sponsored by the Departmental Advisory Committee
or included on the list of recommended programs referred to in subdivision (a) of this section.
§ 611.10 Annual report
(a) No later than September 30th of each calendar year the Departmental Advisory Committee shall
file with the Appellate Division a written evaluation of the panels and the panel attorneys, setting
forth information regarding: the performance of plan attorneys, efficiency of the panels as a means
of representing indigent parties, the training and education programs sponsored and recommended
by the committee, and proposals for improving the operation of the Attorneys for Children Plan. In
preparing the written evaluation, the committee may consult with Family Court judges and bar
associations. Plan attorneys shall cooperate with the committee in preparing the evaluation.
(b) An annual report of the operation of the Family Court panels shall be filed by the Appellate
Division with the Chief Administrator of the Unified Court System no later than January 31st of each
calendar year.
§ 611.11 Continuity of powers
Nothing contained in this Part shall be construed to limit the powers of the Appellate Division or the
presiding justice thereof or the administrator of the assigned counsel plan otherwise granted pursuant
to law.
§ 611.12 Members of the Departmental Advisory Committee as volunteers
The members of the Departmental Advisory Committee, as volunteers are expressly authorized to
participate in a State-sponsored volunteer program within the meaning of Public Officers Law,
section 17(a).
b.
Part 612
Rules to Implement a Criminal Courts Plan
§ 612.13 Appendix A - central screening committee indigent defendants assigned counsel
plan
The Appellate Division, First Judicial Department, in furtherance of its obligation to provide
indigent criminal defendants with competent counsel, approves the bylaws contained herein.
Membership on all assigned counsel panels is a privilege granted to qualified attorneys by the
Appellate Division, First Judicial Department.
c.
Part 623
Mental Health Professionals Panel
§ 623.1 Access to mental health professionals
In custody and visitation, delinquency, persons in need of supervision, child abuse and neglect,
termination of parental rights, family offense, and adoption cases, an evaluation of the parties by a
mental health professional is often necessary to assist the court in reaching an appropriate decision.
To assure that the court and the parties have access to qualified mental health professionals, a panel
of social workers, psychologists and psychiatrists shall be established in the First and Second
Judicial Departments in accordance with this Part and Part 680 of this Title.
§ 623.2 Mental health professionals certification committee
(a) A mental health professionals certification committee shall be established for the First and
Second Judicial Departments.
(b) The committee shall be composed of no fewer than two justices of the Supreme Court, two
judges of the Family Court, two lawyers, two social workers, two psychologists, and two
psychiatrists. Half of the members in each class shall be appointed by the Presiding Justices of the
First and Second Departments of the Appellate Division, respectively, for three-year terms.
Committee members shall be eligible for reappointment for additional terms. The Law Guardian
Directors for the Appellate Division in the First and Second Judicial Departments, respectively, or
their designees, shall be ex-officio members.
(c) The members of the committee shall serve as volunteers, authorized to participate in a Statesponsored volunteer program within the meaning of the Public Officers Law, §17.
§ 623.3 Duties of mental health professionals certification committee
Subject to the supervision of the Presiding Justices of the Appellate Division of the First and Second
Judicial Departments, the mental health professionals certification committee shall establish
procedures for:
(a) the appointment of applicants for membership on the panel of mental health professionals;
(b) periodic evaluation of panel members;
(c) training of panel members;
(d) investigating complaints made against panel members; and
(e) removal of mental health professionals from the panel.
§ 623.4 Establishment of mental health professionals panel
(a) Eligibility requirements. A member of the mental health professionals panel shall:
(1) be a social worker, psychologist, or psychiatrist licensed by the State of New York;
(2) complete six hours of introductory training approved by the Presiding Justices of the
Appellate Division of the First and Second Judicial Departments;
(3) demonstrate that he or she has forensic experience, including having testified as an expert and/or
having submitted a clinical report in connection with one or more of the following types of court
proceedings: custody and visitation, delinquency, persons in need of supervision, child abuse and
neglect, termination of parental rights, family offense, and adoption;
(4) maintain professional malpractice insurance; and
(5) meet such additional requirements as shall be established by the mental health professionals
certification committee with the approval of the Presiding Justices of the Appellate Divisions of
the First and Second Judicial Departments.
(b) Application. Licensed social workers, psychologists, and psychiatrists may apply for membership
on the mental health professionals panel for the First and Second Judicial Departments by
completing a questionnaire in the form prescribed by the mental health professionals certification
committee.
(c) Appointments to panel. (1)The mental health professionals committee shall review
applications and identify those mental health professionals who meet the eligibility requirements.
(2) The Presiding Justices of the Appellate Division in the First and Second Judicial Departments
shall, by joint order, appoint the members of the mental health professionals panel from among those
social workers, psychologists and psychiatrists recommended by the committee.
(3) Appointments to the panel shall be for a term of three years. Panel members may be reappointed
to successive terms. Any panel member may be removed prior to the expiration of his or her term
by the joint order of the Presiding Justices of the Appellate Divisions of the First and Second Judicial
Departments upon the recommendation of the committee.
§ 623.5 Appointment of mental health professionals from panel
(a)Appointment. A court may appoint a mental health professional or professionals to evaluate adults
and children in any case involving custody and visitation, delinquency, persons in need of
supervision, child abuse and neglect, termination of parental rights, family offense, and adoption
wherein compensation is paid privately or pursuant to Judiciary Law, §35 or County Law, article 18B. Such appointments shall be from the mental health professionals panel promulgated pursuant to
these rules. A court, upon a finding of good cause, may appoint a mental health professional who is
not a member of the mental health professionals panel. The court's finding shall be set forth in order
of appointment. This section shall not apply to providers of mental health services pursuant to a
governmental contract.
(b) Order of appointment. The court appointing a mental health professional shall issue a written
order setting forth the terms and conditions of the appointment including the method and rate of
compensation and by whom such compensation is to be paid. A copy of the order shall be provided
to the mental health professional and to every party to the case, including the attorney, if any, for
each child.
§ 623.6 Compensation of mental health professionals
(a) The compensation for mental health professionals appointed pursuant to Judiciary Law,§35 or
County Law, article 18-B shall be at rates prescribed by the Chief Administrator of the Courts.
Applications for payment for services rendered pursuant to those sections shall be submitted for
approval to the court that appointed the panel member on forms authorized by the Chief
Administrator of the Courts or by the appropriate local fiscal authority.
(b) The compensation of mental health professionals appointed in cases in which their fees shall be
borne in whole or in part by the parties shall be at rates fixed by the court in accordance with the
charge for such services prevailing in the community and the financial circumstances of the parties.
Such compensation shall not exceed a sum certain to be set forth in the order of appointment, which
sum shall be based on the selected rate and the estimated number of hours required to perform the
necessary services. In the event that a greater expenditure of time is required than originally
estimated, the mental health professional may apply to the court for additional fees in excess of the
sum set forth in the order. The application shall be made by letter, a copy of which shall be
forwarded to the party or parties responsible for the payment of the fee.
§ 623.7 Training and education
The mental health professionals certification committee shall establish a training and education
program for members of the mental health professionals panel. The program maybe established in
cooperation with relevant professional organizations. The committee may make attendance at
training sessions a requirement for continued membership on the panel of mental health
professionals.
§ 623.8 Periodic evaluation of panel members
The mental health professionals certification committee shall establish procedures by which it shall
periodically evaluate the work performed by each member of the panel of mental health
professionals. In conducting its evaluation the committee shall seek information from judges and
other appropriate and knowledgeable persons. The committee shall not recommend for
reappointment to the panel any member whose performance has been determined to be
unsatisfactory.
§ 623.9 Recommendation for removal
The Presiding Justices of the Appellate Division of the First and Second Judicial Departments may,
by joint order, remove members of the mental health professionals panel. The mental health
professionals certification committee may, at any time, recommend to the Presiding Justices that a
mental health professional be removed from the panel.
§ 623.10 Annual report of the mental health professionals certification committee
On June 1st of each year the mental health professionals certification committee shall submit to the
Presiding Justices of the Appellate Division in the First and Second Judicial Departments an annual
report containing an evaluation of the operation of the mental health professionals panel and the
training program and any recommendations concerning measures that should be adopted to improve
the performance of the panel and the training program. A copy of that report shall be forwarded to
the Chief Administrator of the Courts.
d.
Part 1500
1. Mandatory Continuing Legal Education Program for Attorneys in the State of New York
§ 1500.1 Scope
There shall be a mandatory continuing legal education program in the State of New York (hereinafter
program) which shall include a transitional legal education program for newly admitted attorneys,
as set forth in subpart B of this Part, and a legal education program for all other admitted attorneys,
as set forth in subpart C of this Part. A Continuing Legal Education Board shall accredit and oversee,
as set forth in this Subpart, the courses, programs and other educational activities that will satisfy
the requirements of the program.
§ 1500.2 Definitions
(a)Accredited course or program is a continuing legal education course or program that has met the
standards set forth in section 1500.4(b) of this Part and has received advance accreditation approval
by the Continuing Legal Education Board.
(b) Accredited provider is a person or entity whose continuing legal education program has been
accredited by the Continuing Legal Education Board, and who has been certified by the Continuing
Legal Education Board as an accredited provider of continuing legal education courses and programs
in accordance with section 1500.4© of this Part.
(c) Ethics and professionalism may include, among other things, the following: the norms relating
to lawyers' professional obligations to clients (including the obligation to provide legal assistance
to those in need, confidentiality, competence, conflicts of interest, the allocation of decision making,
and zealous advocacy and its limits); the norms relating to lawyers' professional relations with
prospective clients, courts and other legal institutions, and third parties (including the lawyers'
fiduciary, accounting and record keeping obligations when entrusted with law client and escrow
monies, as well as the norms relating to civility); the sources of lawyers' professional obligations
(including disciplinary rules, judicial decisions, and relevant constitutional and statutory provisions);
recognition and resolution of ethical dilemmas; the mechanisms for enforcing professional norms;
substance abuse control; and professional values (including professional development, improving
the profession, and the promotion of fairness, justice and morality).
(d) Skills must relate to the practice of law and may include, among other things, problem solving,
legal analysis and reasoning, legal research and writing, drafting documents, factual investigation
(as taught in courses on areas of professional practice), communication, counseling, negotiation,
mediation, arbitration, organization and trial advocacy.
(e) Law practice management must relate to the practice of law and may encompass, among other
things, office management, applications of technology, State and Federal court procedures, stress
management, management of legal work and avoiding malpractice and litigation.
(f) Areas of professional practice may include, among other things, corporations, wills/trusts,
elder law, estate planning/administration, real estate, commercial law, civil litigation, criminal
litigation, family law, labor and employment law, administrative law, securities, tort/insurance
practice, bankruptcy, taxation, compensation, intellectual property, municipal law, landlord/
tenant, environmental law, entertainment law, international law, social security and other
government benefits, and alternative dispute resolution procedures.
(g) Regulations and guidelines refers to the regulations and guidelines of the Continuing Legal
Education Board set forth in Part 7500 of this Title.
§ 1500.3 The Continuing Legal Education Board
(a) The Continuing Legal Education Board. The Continuing Legal Education Board (CLE board)
is hereby established.
(b) Board composition. The CLE board shall consist of 16 resident members of the bench and bar.
Three members shall be chosen by each of the presiding justices of the Appellate Divisions, and four
members shall be chosen by the Chief Judge of the State of New York. The Chief Judge shall
designate the chair. Board members shall serve at the pleasure of the Administrative Board of the
Courts.
(c) Quorum. Nine members shall constitute a quorum of the entire CLE board.
(d) Term of service. The term of board members shall be three years. Board members shall be
appointed for no more than one three-year term.
(e) Duties and responsibilities. The CLE board is authorized to: accredit providers of courses,
programs, and other educational activities that will satisfy the requirements of the program;
determine the number of credit hours for which continuing legal education credit will be given for
particular courses or programs; adopt or repeal regulations and forms consistent with these rules;
examine course materials and the qualifications of continuing legal education instructors; consult
and appoint committees in furtherance of its official duties as necessary; foster and encourage the
offering of accredited courses and programs, particularly in geographically isolated regions; and
report annually on its activities to the Chief Judge, the presiding justices of the Appellate Divisions
and the Chief Administrator of the Courts.
(f) Expenses. Members of the CLE board shall serve without compensation but shall be
reimbursed for their reasonable, actual and direct expenses incurred in furtherance of their
official duties.
(g) Confidentiality. The files, records and proceedings of the CLE board, as they relate to an
attorney's satisfying the requirements of this Part, shall be confidential and shall not be disclosed
except in furtherance of the duties of the board or upon the request of the attorney affected, or as they
may be introduced in evidence or otherwise produced in proceedings implementing this Part.
(h) Appeal of determinations. Any person or organization aggrieved by a determination pursuant to
this Part may seek administrative review of that determination pursuant to the regulations and
guidelines adopted by the CLE board.
§ 1500.4 Accreditation
(a)Procedure. Unless a provider has been granted accredited provider status pursuant to subdivision
© of this section, accreditation of continuing legal education courses or programs must be sought
at least 60 days prior to the occurrence of the course or program, except in extenuating circumstances
and with prior permission of the CLE board.
(b) Standards. Continuing legal education courses or programs to be accredited shall comply
with the following guidelines:
(1) One hour of continuing legal education credit shall consist of at least 50 minutes of
instruction, exclusive of introductory remarks, meals, breaks, or other non educational activities.
(2) The course or program must have significant intellectual or practical content and its primary
objective must be to increase the professional legal competency of the attorney in ethics and
professionalism, skills, practice management and/or areas of professional practice.
(3) The course or program shall be taught by instructors with expertise in the subject matter being
taught and shall be specifically tailored to attorneys.
(4) The faculty of the course or program shall include at least one attorney in good standing, who
shall actively participate in the course or program.
(5) The course or program shall not be taught by a disbarred attorney, whether the disbarred
attorney is the sole presenter or one of several instructors.
(6) The continuing legal education course or program must be offered by a provider that has
substantial, recent experience in offering continuing legal education to attorneys, or that has
demonstrated an ability to effectively organize and present continuing legal education to attorneys.
(7) Thorough, high quality, readable and carefully prewritten materials must be made available to
all participants at or before the time the course or program is presented, unless the absence of
materials, or the provision of such materials shortly after the course or program, is pre-approved by
the CLE board. Written materials shall satisfy the criteria set forth in the regulations and guidelines.
(8) The cost of continuing legal education courses or programs to the participating attorney shall
be reasonable.
(9) Providers must have a financial hardship policy as provided in the regulations and guidelines.
(10) The course or program must be conducted in a physical setting that is comfortable and
conducive to learning.
(11) At the conclusion of the course or program, each participant must be given the opportunity
to complete an evaluation questionnaire addressing the quality, effectiveness and usefulness of
the
particular course or program. A summary of the results of the survey(s) must be submitted to the
CLE board at the end of the calendar year in which the course or program was given. Providers
must maintain the questionnaires for a period of four years following the course or program.
(12) Providers of continuing legal education courses or programs shall provide a certificate of
attendance to all persons completing the continuing legal education course or program.
(13) Providers of continuing legal education courses or programs must maintain an official
attendance list of participants in the program, and the time, date, location, title, speaker(s) and
amount of approved CLE credit for each course or program, for at least four years after the
completion date.
(14) Programs that satisfy these standards and that cross academic lines, such as accounting-tax
seminars, may be considered for approval by the CLE board.
(c) Accredited provider status.
(1) Procedure. Application may be made for accredited provider status by submitting the
appropriate forms and materials to the CLE board pursuant to CLE board regulations and
guidelines.
(2) Requirements. Accredited provider status may be granted at the discretion of the CLE board
to applicants satisfying the requirements of this section and, as well, the following requirements:
(i) the provider has presented, within the prior three years, separate programs of continuing legal
education that meet the standards set forth in subdivision (b) of this section and the regulations and
guidelines of the CLE board; or
(ii) the provider has demonstrated to the board that its CLE activities have consistently met the
standards set forth in subdivision (b) of this section and the regulations and guidelines of the CLE
board.
Providers that meet the foregoing requirements may include bar associations, law schools, law
firms and legal departments (including corporate, nonprofit and municipal and State law
departments).
(3) Duration of accredited provider status. Once a provider has been granted accredited provider
status, the continuing legal education courses or programs sponsored by that provider are
presumptively approved for credit for a period of three years from the date of the grant of such status.
(4) Accredited provider reports. Providers granted accredited provider status shall file a written
report with the CLE board each year at a time fixed by the board. The report shall describe the
continuing legal education activities conducted during the prior 12 months and shall be in such detail
and form as required by the board and by the regulations and guidelines. The accredited status of a
provider may be continued by filing an application for renewal with the board before the end of the
provider's accreditation period.
(5) Renewal of accredited provider status. Renewal of accredited provider status shall be for periods
of three years. The CLE board shall determine if there are pending or past breaches of these rules or
regulations and guidelines, and the board, in its discretion, may condition renewal upon the provider
meeting additional requirements specified by the board.
(i) If an application for renewal is timely filed, the accredited status shall continue until the board
acts on the application.
(ii) If an application for renewal is not filed before the end of the provider's accreditation period, the
provider's accredited status will terminate at the end of the period. Any application received
thereafter shall be considered by the board as an initial application for accredited provider status.
(6) Revocation. Accredited provider status may be revoked by the board if the reporting requirements
of these rules and regulations and guidelines are not met or, if upon review of the provider's
performance, the CLE board determines that the content of the course or program materials, the
quality of the CLE activities, or the provider' s performance does not meet the standards set forth in
these rules and regulations and guidelines. In such event, the CLE board shall send the provider a
30-day notice of revocation by first class mail. The provider may request a review of such
revocation, and the CLE board shall determine the request within 90 days of receipt of such request.
The decision of the CLE board shall be final after such review.
(iv) Provider list. A list of accredited providers whose continuing legal education courses or
activities have been presumptively approved for credit shall be compiled and published periodically
by the CLE board. Lists shall be made available at each of the appellate divisions and at such other
offices and electronic sites as the Chief Administrator of the Courts shall determine.
(v) Announcement. Providers who have received approval for continuing legal education courses
and programs may indicate that their course or program has received CLE board approval as
follows:
"This (transitional) continuing legal education course (or program) has been approved in accordance
with the requirements of the Continuing Legal Education Board for a maximum of _____ credit
hours, of which _____ credit hours can be applied toward the __________ requirement, and _____
credit hours can be applied toward the __________ requirement."
Where a program or segment of a program might reasonably be used to satisfy more than one
category of instruction, e.g., either ethics or areas of professional practice, the approved provider may
so indicate, but must state that duplicate credit for the same hour of instruction is not permitted; an
election must be made by the attendee, and each hour may be counted as satisfying only one category
of instruction. The following language may be used:
and an aggregate of _____ credit hours can be applied toward the __________ requirement or the
__________ requirement.
§ 1500.5 Waivers, modifications and exemptions
(a) Waivers and modifications. The continuing legal education board may, in individual cases
involving undue hardship or extenuating circumstances, grant waivers and modifications of program
requirements to attorneys, upon written request, in accordance with the regulations and guidelines
established by the CLE board and this Part.
(b) Exemptions. The following persons shall be exempt from the requirements of New York's
continuing legal education program:
(1) subject to the requirements in sections 1500.12(f) and 1500.22(n) of this Part, attorneys who do
not practice law in New York. Attorneys practice law pursuant to this section if, during the reporting
period, they give legal advice or counsel to, or provide legal representation for, a particular body or
individual in a particular situation in either the public or private sector. The practice of law does not
include the performance of judicial or quasi-judicial (e.g.,administrative law judge, hearing officer)
functions;
(2) full-time active members of the United States Armed Forces and members of the military
service of the State serving on active duty;
(3) attorneys with offices outside of New York who are temporarily admitted to practice in a
court within New York for a case or proceeding; and
(4) attorneys who certify that they are retired from the practice of law pursuant to section 468-a
of the Judiciary Law.
2.
Mandatory Continuing Legal Education for Newly Admitted Attorneys
§ 1500.10 Application
(a) The requirements of this subpart shall apply to all newly admitted attorneys, who are not exempt
from these requirements pursuant to section 1500.5(b) of this Part, during the first two years after
their admission to the Bar of the State of New York.
(b) A newly admitted attorney is an attorney who has successfully passed the New York State Bar
examination administered by the State Board of Law Examiners and who becomes duly admitted to
the practice of law in New York after October 1, 1997.
(c) Attorneys who have been engaged in the practice of law in another state, the District of
Columbia, any territory of the United States or any foreign jurisdiction, for at least five of the seven
years immediately preceding admission to the New York Bar, shall not be deemed newly admitted
attorneys for the purposes of this subpart, and shall be required to comply with the requirements of
subpart C of this Part to the extent they are applicable.
§ 1500.11 Statement of purpose
Mandatory continuing legal education for newly admitted attorneys in the State of New York is a
transitional continuing legal education program designed to help recent graduates and newly
admitted attorneys become competent to deliver legal services at an acceptable level of quality as
they enter practice and assume primary client service responsibilities. The program seeks to help the
newly admitted attorney establish a foundation in certain practical skills, techniques and procedures,
which are and can be essential to the practice of law, but may not have been adequately addressed
in law school. It includes courses targeting ethics and professionalism, skills, practice management
and areas of professional practice.
§ 1500.12 Minimum requirements
(a) Credit hours. Each newly admitted attorney shall complete a minimum of 32 credit hours of
accredited transitional education within the first two years of the date of admission to the Bar.
Sixteen accredited hours shall be completed in each of the first two years of admission to the Bar as
follows:
(1) three hours of ethics and professionalism;
(2) six hours of skills; and
(3) seven hours of law practice management and areas of professional practice.
Ethics and professionalism, skills, law practice management and areas of professional practice are
defined in section 1500.2 of this Part. The ethics and professionalism and skills components may be
intertwined with other courses.
(b) Carry-over credit. Except as provided in section 1500.13(b)(2) of this Part, a newly admitted
attorney who accumulates more than the16 hours of credit required in the first year of admission to
the Bar may carry over to the second year of admission to the Bar a maximum of eight credits. Six
credits in excess of the 16-hour requirement in the second year of admission to the Bar may be
carried over to the following biennial reporting cycle to fulfill the requirements of subpart C of this
Part. Ethics and professionalism credit may not be carried over.
(c) Accredited courses or programs only. Transitional continuing legal education credit will be
granted only for courses and programs approved as such by the CLE board, except as provided in
subdivision (d) of this section. No transitional continuing legal education course or program
consisting of nontraditional formats, such as self-study, correspondence work, videotapes,
audiotapes, motion picture presentations or on-line programs may be accepted for credit without
prior permission from the CLE board, except as provided in the regulations and guidelines.
(d) Other jurisdictions. Transitional continuing legal education courses approved by another
state, the District of Columbia, any territory of the United States or any foreign jurisdiction with
requirements meeting the standards adopted by the CLE board shall count toward the newly
admitted attorney's compliance with New York's transitional CLE program requirements in
accordance with the regulations and guidelines established by the CLE board and this Part.
(e) Post-graduation/pre-admission. A maximum of 16 credit hours of approved transitional CLE
courses taken from the date of graduation from law school up through the date of admission to the
New York Bar may be applied toward a newly admitted attorney's first-year CLE program
requirements. Credit hours in excess of 16 may not be carried over and applied toward the secondyear CLE requirement.
(f) Obligations of attorneys exempt from the program requirements.
(1) An attorney who is exempt from the requirements of this program and who is required to comply
with the continuing legal education requirements of another jurisdiction shall comply with those
requirements and shall certify to this compliance on the attorney's biennial attorney registration
statement.
(2) An attorney who is exempt from the requirements of this program and who is not required to
comply with the continuing legal education requirements of another jurisdiction shall so certify on
the attorney's biennial attorney registration statement.
(3) An attorney who is exempt from the requirements of this program and who thereafter ceases to
be exempt and commences the practice of law in New York during the first two years after admission
to the Bar shall be required to complete by the end of those two years 1.5 credit hours of accredited
continuing legal education as set forth in subdivision (a) of this section, in any combination of
categories set forth in said section, for each full month of the two-year period during which the
attorney practices law in New York.
(4) An attorney who permanently ceases to practice law in New York while commencing or
continuing the practice of law in another jurisdiction shall be exempt from the requirements of this
program for the year in which the permanent cessation from New York practice occurred, and shall
comply with the requirements of any jurisdiction in which the attorney practices law during that year.
§ 1500.13 Reporting requirements
(a) Attorney obligations. Each newly admitted attorney subject to New York's transitional continuing
legal education requirements shall retain the certificate of attendance for each approved transitional
education course or program for at least four years from the date of the course or program.
(b) Certification.
(1) Except as otherwise authorized by this Part, each newly admitted attorney subject to New York's
transitional continuing legal education requirements is required to certify along with the submission
of his or her biennial attorney registration statement that the attorney has satisfactorily completed
32 credit hours of transitional continuing legal education (16 credit hours in the first year of
admission to the Bar, 16 credit hours in the second year of admission to the Bar) and that the attorney
has retained the certificates of attendance or other documentation required by the CLE board for the
accredited courses or programs.
(2) A newly admitted attorney who is required to file his or her biennial attorney registration
statement prior to completing the second year of admission to the Bar shall certify the actual number
of credit hours of transitional continuing legal education completed at the time the statement is filed.
The attorney shall remain responsible for completing the 16 second-year credit hours of transitional
continuing legal education by the end of that second year after admission, but may apply 12 of the
16 credit hours to fulfilling the requirements of subpart C of this Part as set forth in section
1500.22(b)(3) of this Part.
§ 1500.14 Waivers or modifications
(a) A newly admitted attorney may apply in writing to the CLE board for a waiver or modification
of program requirements based upon extenuating circumstances preventing the newly admitted
attorney from complying with the requirements, in accordance with the regulations and guidelines
established by the CLE board and this Part.
(b) Requests for extensions of time in which to complete program requirements based upon
extenuating circumstances shall be made pursuant to the procedures contained in the regulations and
guidelines and shall not be granted fora period of greater than 90 days absent special circumstances.
If an extension is granted, the period of time by which a newly admitted attorney must complete the
mandatory continuing legal education requirements applicable to all attorneys as set forth in subpart
C of this Part remains the same.
§ 1500.15 Noncompliance
The names of newly admitted attorneys who fail to comply with transitional continuing legal
education requirements will be submitted to the Appellate Division for appropriate action.
§ 1500.16 Effective date
Mandatory continuing legal education for newly admitted attorneys in the State of New York
shall become effective on October 1, 1997.
3.
Mandatory Continuing Legal Education for Attorneys other than Newly Admitted
Attorneys
§ 1500.20 Application
The requirements of this Subpart shall apply to all attorneys who have been duly admitted to the
practice of law in New York, are not exempt from these requirements pursuant to § 1500.5(b), and
are not newly admitted attorneys subject to the requirements of Subpart B of this Part.
§ 1500.21 Statement of Purpose
It is of utmost importance to members of the Bar and to the public that attorneys maintain their
professional competence by continuing their legal education throughout the period of their active
practice of law. This Program establishes the minimum requirements for continuing legal education
for attorneys other than newly admitted attorneys in New York State.
§ 1500.22 Minimum Requirements
(a) Credit Hours. Each attorney shall complete a minimum of 24 credit hours of accredited
continuing legal education each biennial reporting cycle in ethics and professionalism, skills, law
practice management or areas of professional practice, at least four (4) credit hours of which shall
be in ethics and professionalism. Ethics and professionalism, skills, law practice management and
areas of professional practice are defined in § 1500.2. The ethics and professionalism components
may be intertwined with other courses.
(b) Biennial Reporting Cycle.
(1) The biennial reporting cycle shall be the two-year period between the dates of submission of
the attorney's biennial registration statement.
(2) An attorney shall comply with the requirements of this Subpart commencing from the time of the
filing of the attorney's biennial attorney registration statement in the second calendar year following
admission to the Bar.
(3) A newly admitted attorney whose transitional two year post-Bar admission period has not been
completed as of the last day the attorney registration statement in paragraph (2) is required to be filed
may apply 12 credit hours of the second-year accredited transitional education credits required in
section 1500.12(a) to fulfilling the requirements of this Subpart.
(c) Carry-Over Credit. An attorney who accumulates more than the 24 hours of credit in any one
biennial reporting cycle may carry over a maximum of six (6) credits to the next biennial reporting
cycle.
(d) Course or Program Formats. Continuing legal education courses or programs may include
traditional live classroom or audience settings; teleconferences; video conferences; satellite
transmissions; videotapes; audiotapes; motion picture presentations; interactive video instruction;
activities electronically transmitted from another location; self-study; correspondence work; and online computer courses.
(e) Credit for Speaking and Teaching Activities. Credit may be earned through speaking, teaching
or participating in a panel in an accredited CLE program. Where teaching is done in tandem or by
panel, teaching credit shall be given to all participants.
(f) Credit for Teaching Law School Classes. Credit may be earned through teaching in an ABAaccredited law school as may be permitted pursuant to the Regulations and Guidelines of the CLE
Board.
(g) Credit for Attending Law School Courses. Credit may be earned for attending courses at an ABAaccredited law school after admission to practice in New York provided (I) the attorney is officially
registered for the course, and (ii) the attorney completed the course as required by the terms of
registration.
(h) Credit for Judging Law Competitions. Credit may be earned for preparing students for and
judging law competitions, mock trials and moot court arguments, including those in high school,
pursuant to the Regulations and Guidelines of the CLE Board.
(i) Credit for Publications. Credit may be earned, as may be permitted pursuant to the Regulations
and Guidelines of the CLE Board, for legal research-based writing upon application to the CLE
Board, provided the activity (I) produced material published or to be published, in print or
electronically, in the form of an article, chapter or book written, in whole or in substantial part, by
the applicant, and (ii) contributed substantially to the continuing legal education of the applicant and
other attorneys.
(j) Credit for Performing Pro Bono Legal Services. Credit may be earned for performing
uncompensated legal services for clients unable to afford counsel pursuant to (a) assignment by a
court; or (b) a program, accredited by the CLE Board, of a bar association, legal services provider
or other entity. Credit shall be awarded pursuant to the Regulations and Guidelines of the CLE
Board, provided that no more than six hours of CLE credit may be awarded in a two-year reporting
period for performing pro bono legal services, and no more than one credit hour of CLE credit may
be awarded for every six hours of legal work performed.
(k) Accredited Courses, Programs and Activities Only. Continuing legal education credit will be
granted only for courses, programs and activities approved by the CLE Board, except where credit
is extended as provided in subdivision (m).
(l) Individual Course Approval. An attorney seeking approval of a course or program that has not
otherwise been approved shall apply to the CLE Board for approval in accordance with Board
procedures. Such approval must be sought at least 60 days prior to the occurrence of the course or
program, except in extenuating circumstances and only with prior permission of the Board.
(m) Other Jurisdictions. Continuing legal education courses approved by another state, the District
of Columbia, any territory of the United States or any foreign jurisdiction with requirements meeting
the standards adopted by the CLE Board shall count toward the attorney's compliance with New
York's CLE Program requirements in accordance with the Regulations and Guidelines established
by the CLE Board and this Part.
(n) Obligations of Attorneys exempt from the Program Requirements.
(1) An attorney who is exempt from the requirements of this Program and who is required to comply
with the continuing legal education requirements of another jurisdiction shall comply with those
requirements and shall certify this compliance on the attorney's biennial attorney registration
statement.
(2) An attorney who is exempt from the requirements of this Program and who is not required to
comply with the continuing legal education requirements of another jurisdiction shall so certify on
the attorney's biennial attorney registration statement.
(3) An attorney who is exempt from the requirements of this Program and who thereafter ceases to
be exempt and commences the practice of law in New York during a biennial reporting cycle shall
be required to complete by the end of the reporting cycle one credit hour of accredited continuing
legal education as set forth in section 1500.22(a), in any combination of categories set forth in said
section, for each full calendar month of the biennial reporting cycle during which the attorney
practices law in New York.
(4) An attorney who permanently ceases to practice law in New York while commencing or
continuing the practice of law in another jurisdiction shall be exempt from the requirements of this
Program for the reporting cycle in which the permanent cessation from New York practice occurred,
and shall comply with the requirements of the jurisdiction in which the attorney practices law during
that cycle.
§ 1500.23 Reporting Requirements
(a) Attorney Obligations. Each attorney subject to New York's continuing legal education
requirements shall retain the Certificate of Attendance or other documentation required by the Board
for each approved education course, program or activity for at least four (4) years from the date of
the course, program or activity.
(b) Certification. Except as otherwise authorized by this Part, each attorney subject to New York's
continuing legal education requirements is required to certify along with the submission of his or her
biennial attorney registration statement that the attorney has satisfactorily completed 24 credit hours
of continuing legal education for the current biennial reporting cycle and that the attorney has
retained the Certificates of Attendance or other documentation required by the CLE Board for the
accredited courses, programs or activities.
§ 1500.24 Waivers or Modifications
(a) An attorney may apply in writing to the CLE Board for a waiver or modification of Program
requirements based upon extenuating circumstances preventing the attorney from complying with
the requirements, in accordance with the Regulations and Guidelines established by the CLE Board
and this Part.
(b) Requests for extensions of time in which to complete Program requirements based upon
extenuating circumstances shall be made pursuant to the procedures contained in the Regulations
and Guidelines and shall not be granted for a period of greater than 90 days absent special
circumstances. If an extension is granted, the period of time by which the attorney must complete
the mandatory continuing legal education requirements of the next biennial reporting cycle remains
the same.
§ 1500.25. Noncompliance
The names of attorneys who fail to comply with continuing legal education requirements will be
submitted to the Appellate Division for appropriate action.
§ 1500.26. Effective Date and Transition
The requirements of this Subpart shall become effective on December 31, 1998. Compliance with
the certification requirement shall commence with biennial attorney registration statements filed on
or after January 1, 2000, as follows:
(1) Attorneys who file their biennial registration statement in calendar year 2000 shall complete 12
credit hours of accredited continuing legal education as of the date of the filing in any combination
of the categories set forth in § 1500.22(a). Attorneys who accumulate more than 12 credit hours at
the time of this filing may carry over a maximum of six (6) credit hours to the next biennial cycle;
(2) Attorneys who file their biennial registration statement in calendar year 2001 must complete
the full 24 credit hours of accredited continuing legal education as set forth in § 1500.22(a).
Approved CLE credits earned from January 1, 1998, may be applied toward fulfilling the
requirements for the initial biennial reporting cycle.
BYLAWS
1.
Quorum and Voting
1
A quorum of a majority of the Committee is required for the conduct of business.
2
Final action on proposed guidelines, applications and complaints requires a majority vote
of a quorum.
2.
Application for Certification or Recertification
1
All applications for certification or recertification to the panels shall be addressed to the
Administrator. The provisions of this section shall apply to applications seeking initial certification
or recertification to the panels.
2
The Administrator shall examine each application for facial sufficiency. If it is found to
be insufficient, the Administrator shall return the application to the applicant.
3
The Administrator shall promptly assign every application not returned pursuant to 2.2 to
the Committee member for his or her review.
4
Within sixty days of receiving the application, the assigned committee member shall contact
two-thirds of the required references, at least two in each category (judges, adversaries and
colleagues) and shall recommend in writing, to the Chair, the action to be taken on the application.
A copy of the recommendation shall be submitted to the Administrator. Requests for extension of
the sixty day period shall be made in writing to the Administrator.
5
Upon receipt of the assigned committee member's recommendation, the Chair shall accept
the recommendation or refer the application to the Committee for review. When the Chair refers an
application to the Committee, the Chair shall invite the applicant to appear before the Committee.
Upon a review of the assigned committee member's recommendation, the application and any other
relevant material, the Committee shall vote on the application pursuant to § 1.2 of these bylaws. The
Chair or the Committee shall take the following action on an application:
1)Certify the applicant to the panel(s) for which he or she is qualified;
2)Deny certification of the applicant to any of the panels for which he or she is not
qualified;
3) Set conditions that the applicant must meet to establish the necessary qualifications for
certification.
6
Applicants shall be advised by letter of the determination. In the event the applicant is
denied certification, the letter must specify the reasons therefor.
7
The Committee's action is appealable to the presiding justice of the Appellate Division, First
Judicial Department by the submission of a letter requesting review of the Committee's
determination. The presiding justice's review of the Committee's determination is final and
non-appealable.
8
An applicant denied certification to any panel may reapply for that panel one year after the
date of the letter denying certification unless a shorter time or other conditions are set by the Chair
or the Committee pursuant to § 2.5.
3)
Complaints and Sanctions
1
The Administrator, in consultation with the Chair, shall accept and keep records of written
complaints concerning the competence and conduct of panel attorneys. Complaints made to the
Administrator shall be forwarded to the Chair.
2
The Chair, in consultation with the Administrator, may dismiss complaints. Complaints not
dismissed shall be referred to a committee member designated by the Chair for further investigation
within thirty days of receipt of the complaint.
3
Once a complaint has been referred for further investigation, a subcommittee consisting of
the Chair, the Administrator, and two additional committee members shall vote as to whether the
attorney should be suspended. Suspension shall be imposed upon a majority vote of the
subcommittee. The suspension shall continue pending a resolution of the complaint.
4
A panel member who is the subject of a complaint shall receive notice of the substance of
the complaint. The notice shall advise the attorney that he or she may respond in writing.
5
Investigation by the designated subcommittee member shall be completed within ninety days.
Extension of time to investigate a complaint may be granted by the Chair. Upon the completion of
an investigation, the designated committee member shall make a report, with findings and
recommendations, to the Committee.
6
The Committee shall, upon receipt of the report, invite the attorney to appear before the
Committee, and upon having duly considered the attorney's statements and other relevant
submissions, shall take one or more of the following actions, as shall be appropriate:
1) Dismiss the complaint;
2) Adopt the recommendation;
3) Reject the recommendation;
4) Suspend the panel attorney from any or all panels to which the attorney is certified and
impose conditions upon the attorney's restoration to the panel;
5) Recommend the substitution of the panel attorney on some or all of the cases to which
the attorney is currently assigned by notification to the trial court where the cases are
pending;
6) Remove the attorney from any or all panels to which the attorney is certified.
7
At any time the Committee or subcommittee may vote to transmit the information it has
developed to the District Attorney or the Department Disciplinary Committee.
8
The Chair shall promptly notify the attorney in writing of the Committee's action. In the event
the determination imposes a restriction on the attorney's panel membership, the letter shall set forth
the reasons therefor.
9
The determination of the Committee is appealable to the presiding justice of the Appellate
Division, First Judicial Department by the submission of a letter requesting review of the
Committee's determination. The presiding justice's review of the Committee's determination is final
and non-appealable. 3.10 Nothing contained in these bylaws limits the authority of the Appellate
Division to suspend or remove an attorney from the panels.
4)
Responsibilities of Committee Members
1
Committee members shall act expeditiously on applications and complaints referred to them.
Any Committee member who fails to take timely action twice during any twelve month period shall
be removed by the Presiding Justice.
5.
Responsibilities of Officers
1
An executive committee shall be formed, consisting of the Chair, the Vice-chair,
Administrator and three members designated by the Chair. One of the three designees shall serve
as Secretary.
2
The executive committee may act in place of the Committee in any matter that requires action
by the Committee during a period in which the Committee is not scheduled to meet for more than
thirty days. Any action taken by the executive committee shall be ratified by the Committee at its
next meeting.
3
The Chair may designate subcommittees and may designate committee members to serve
as chairs therefor.
4
All officers and executive committee members shall serve in their respective capacities
for three years and may be reappointed by the Appellate Division.
Administrative Order
The court located at 100 Centre Street, New York, New York, Part 170, is hereby designated as a
Supreme Court part. Part170 will be open to accept the filing of pre-petition detention applications,
filed under Family Court Act § 307.4, concerning juveniles who are arrested and detained on
weekends.
The justice that presides in Part 170 will conduct only hearings following detention pursuant to
Family Court Act § 307.4, which shall include the issuance of an order of detention, an order of
protection pursuant to Family Court Act § 304.2 as well as any and all appropriate orders pursuant
to these sections. Each case/application handled in Part 170 shall be subject to the same substantive
and procedural law as would have applied to it had the case/application commenced in New York
City Family Court.
This order shall in no way constitute an “opening” of the family court for any purpose.
b.
Weekend Arraignment Procedure
Click here for Weekend Holiday Intake Voucher (link to pdf of same name).
Juveniles arrested in all five boroughs will be produced at 100 Centre Street at 10 am each weekend
and Holiday. Panel attorneys, one from each Department, will appear 10 am to accept assignment
of any conflict cases. There is a Panel Office, Room 1401 in 100 Centre Street. Attorneys will
represent juveniles from their Department, and will keep those cases that are assigned to their county.
Cases from other counties will be assigned to the intake person assigned on the day after weekend
intake in the county where the case will be heard.
Attorneys interested in working weekend /Holiday intake must contact Caroline Diaz at (212)
3400595.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION, FIRST DEPARTMENT
41 MADISON AVENUE - 39th FLOOR
NEW YORK, NEW YORK 10010
TO:
Members of the Panel of Attorneys for Children
FROM:
Jane Schreiber, Esq.
Director of the Office of Attorneys for Children
RE:
ADMINISTRATIVE HANDBOOK
______________________________________________________________________________
The Office of Attorneys for Children of the Appellate Division, First Department has prepared
this Administrative Handbook to describe the operation of its Program.
The Office of Attorneys for Children works to provide high quality legal services to children and
parents involved in Family Court proceedings. There are approximately 150 members on the
Panel of Attorneys for Children. Attorneys who represent children and parents are compensated
for their work and reimbursed for reasonable expenses associated with the representation of their
clients.
Included in this Handbook are statutory provisions, court rules, guidelines and forms for
Attorneys for the Child and Assigned Counsel Plan attorneys in the Family Courts of New York
and Bronx Counties. Members of the Panel of Attorneys for Children in the First Judicial
Department may be permitted to select an area of practice expertise. When certification upon
appointment to the Panel is limited to an area of expertise, attorneys may only accept
assignments in that specialty.
Please review the information contained in this Handbook and retain it for future reference. The
Appellate Division, First Department, Office of Attorneys for Children, and the courts in which
you will be serving, thank you for your work on behalf of children and parents.
1
A.
RULES OF THE CHIEF JUDGE
Part 7
Attorneys for Children
§ 7.2 Function of the Attorney for the Child
(a) As used in this part, "attorney for the child" means a law guardian appointed by family court
pursuant to § 249 of the Family Court Act, or by the supreme court or a surrogate's court in a
proceeding over which the family court might have exercised jurisdiction had such action or
proceeding been commenced in family court or referred thereto.
(b) The attorney for the child is subject to the ethical requirements applicable to all lawyers,
including but not limited to constraints on: ex-parte communication; disclosure of client
confidences and attorney work product; conflicts of interest; and becoming a witness in the
litigation.
(c) In juvenile delinquency and person in need of supervision proceedings, where the child is the
respondent, the attorney for the child must zealously defend the child.
(d) In other types of proceedings, where the child is the subject, the attorney for the child must
zealously advocate the child’s position.
(1) In ascertaining the child's position, the attorney for the child must consult with and
advise the child to the extent and in a manner consistent with the child’s capacities,
and have a thorough knowledge of the child's circumstances.
(2) If the child is capable of knowing, voluntary and considered judgment, the attorney
for the child should be directed by the wishes of the child, even if the attorney for
the child believes that what the child wants is not in the child’s best interests. The
attorney should explain fully the options available to the child, and may recommend
to the child a course of action that in the attorney's view would best promote the
child's interests.
(3) When the attorney for the child is convinced either that the child lacks the capacity
for knowing, voluntary and considered judgment, or that following the child’s
wishes is likely to result in a substantial risk of imminent, serious harm to the child,
the attorney for the child would be justified in advocating a position that is contrary
to the child’s wishes. In these circumstances, the attorney for the child must inform
the court of the child’s articulated wishes if the child wants the attorney to do so,
notwithstanding the attorney's position.
[PROMULGATED by order of the Chief Judge, Dated October 17, 2007]
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B.
STATEWIDE ATTORNEY FOR CHILD ADVISORY COMMITTEE
SUMMARY OF RESPONSIBILITIES OF THE ATTORNEY FOR THE CHILD
While the activities of the attorney for the child will vary with the circumstances of each
client and proceeding, in general those activities will include, but not be limited to, the
following:
(1) Commence representation of the child promptly upon being notified of the appointment;
(2) Contact, interview and provide initial services to the child at the earliest practical
opportunity, and prior to the first court appearance when feasible;
(3) Consult with and advise the child regularly concerning the course of the proceeding,
maintain contact with the child so as to be aware of and respond to the child's concerns
and significant changes in the child’s circumstances, and remain accessible to the child;
(4) Conduct a full factual investigation and become familiar with all information and
documents relevant to representation of the child. To that end, the lawyer for the child
shall retain and consult with all experts necessary to assist in the representation of the
child.
(5) Evaluate the legal remedies and services available to the child and pursue appropriate
strategies for achieving case objectives;
(6) Appear at and participate actively in proceedings pertaining to the child;
(7) Remain accessible to the child and other appropriate individuals and agencies to monitor
implementation of the dispositional and permanency orders, and seek intervention of the
court to assure compliance with those orders or otherwise protect the interests of the
child, while those orders are in effect; and
(8) Evaluate and pursue appellate remedies available to the child, including the expedited
relief provided by statute, and participate actively in any appellate litigation pertaining to
the child that is initiated by another party, unless the Appellate Division grants the
application of the attorney for the child for appointment of a different attorney to
represent the child on appeal.
[APPROVED by the Administrative Board of the Unified Court System October 4, 2007]
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C.
RESPONSIBILITIES REGARDING APPEALS
1. Attorneys who represent children or adults in the Family Court are responsible for advising
their clients as to their right to appeal. As with all aspects of representation, you are expected to
have a meaningful discussion with your client regarding appeal.
2. If your client indicates that they wish to appeal the Family Court ruling, you must file a
Notice of Appeal. If you are NOT ON THE APPELLATE PANEL, you must comply with
Family Court Act §1118. Thereafter, you must confirm that Appellate Counsel has been
appointed, and make yourself and your file available to appellate counsel for consultation.
3. If you are on the Trial and Appellate panels, you must determine whether there is a conflict
that prevents you from representing your client on appeal. If there is a conflict you must follow
(2) above. If there is no conflict, you must comply with Family Court Act §1121.
II.
STATUTORY PROVISIONS RELATING TO REPRESENTATION BY THE
PANEL OF ATTORNEYS FOR CHILDREN
A.
FAMILY COURT ACT
a.
Article 2, Part 4
Attorneys for Children
§ 241. Findings and purpose
This act declares that minors who are the subject of family court proceedings or appeals in
proceedings originating in the family court should be represented by counsel of their own
choosing or by an attorney for the child. This declaration is based on a finding that counsel is
often indispensable to a practical realization of due process of law and may be helpful in making
reasoned determinations of fact and proper orders of disposition. This part establishes a system
of attorneys for minors who often require the assistance of counsel to help protect their interests
and to help them express their wishes to the court. Nothing in this act is intended to preclude any
other interested person from appearing by counsel.
§ 242. Attorney for the Child
As used in this act, "attorney for the child" refers to an attorney admitted to practice law in the
state of New York and designated under this part to represent minors pursuant to § 249 of this
act.
§ 243. Designation
(a) The office of court administration may enter into an agreement with a legal aid society for
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the society to provide attorneys for children for the family court or appeals in proceedings
originating in the family court in a county having a legal aid society.
(b) The appellate division of the supreme court for the judicial department in which a county is
located may, upon determining that a county panel designated pursuant to subdivision (c) of this
section is not sufficient to afford appropriate attorney for child services, enter into an agreement,
subject to regulations as may be promulgated by the administrative board of the courts, with any
qualified attorney or attorneys to serve as attorney for the child or as attorneys for children for
the family court or appeals in proceedings originating in the family court in that county.
(c) The appellate division of the supreme court for the judicial department in which a county is
located may designate a panel of attorneys for children for the family court and appeals in
proceedings originating in the family court in that county, subject to the approval of the
administrative board of the courts. For this purpose, it may invite a bar association to
recommend qualified persons for consideration by the said appellate division in making its
designation, subject to standards as may be promulgated by such administrative board.
§ 244. Duration of designation
(a) An agreement pursuant to subdivision (a) of § 243 of this chapter may be terminated by the
office of court administration by serving notice on the society sixty days prior to the effective
date of the termination.
(b) No designations pursuant to subdivision (c) of such § 243 may be for a term of more than
one year, but successive designations may be made. The appellate division proceeding pursuant
to such subdivision (c) may at any time increase or decrease the number of attorneys for children
designated in any county and may rescind any designation at any time, subject to the approval of
the office of court administration.
§ 245. Compensation
(a) If the office of court administration proceeds pursuant to subdivision (a) of § 243 of this
chapter, the agreement shall provide that the society shall be reimbursed on a cost basis for
services rendered under the agreement. The agreement shall contain a general plan for the
organization and operation of the providing of attorneys for children by the respective legal aid
society, approved by the said administrative board, and the office of court administration may
require such reports as it deems necessary from the society.
(b) If an appellate division proceeds pursuant to subdivision (b) of such §243, the agreement
may provide that the attorney or attorneys shall be reimbursed on a cost basis for services
rendered under the agreement. The agreement shall contain a general plan for the organization
and operation of the providing of attorneys for children by the respective attorney or attorneys,
and the appellate division may require such reports as it deems necessary from the attorney or
attorneys.
(c) If an appellate division proceeds pursuant to subdivision (c) of such §243, attorneys for
children shall be compensated and allowed expenses and disbursements in the same amounts
established by subdivision three of § 35 of the judiciary law.
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§ 246. Supervision by administrative board
The administrative board of the judicial conference may prescribe standards for the exercise of
the powers granted to the appellate divisions under this part and may require such reports as it
deems desirable.
§ 248. Appropriations
The costs of attorneys for children under § 245 shall be payable by the state of New York within
the amounts appropriated therefor.
§ 249. Appointment of Attorney for Child
(a) In a proceeding under article three, seven, ten or ten-A of this act or where a revocation of an
adoption consent is opposed under § 115-b of the domestic relations law or in any proceeding
under §358-a, 383-c, 384 or 384-b of the social services law or when a minor is sought to be
placed in protective custody under § 158 of this act, the family court shall appoint an attorney for
the child to represent a minor who is the subject of the proceeding or who is sought to be placed
in protective custody, if independent legal representation is not available to such minor. In any
proceeding to extend or continue the placement of a juvenile delinquent or person in need of
supervision pursuant to §756 or 353.3 of this act or any proceeding to extend or continue a
commitment to the custody of the commissioner of mental health or the commissioner of mental
retardation and developmental disabilities pursuant to § 322.2 of this act, the court shall not
permit the respondent to waive the right to be represented by counsel chosen by the respondent,
respondent's parent, or other person legally responsible for the respondent's care, or by an
attorney for the child. In any other proceeding in which the court has jurisdiction, the court may
appoint an attorney for the child to represent the child, when, in the opinion of the family court
judge, such representation will serve the purposes of this act, if independent legal counsel is not
available to the child. The family court on its own motion may make such appointment.
(b) In making an appointment of an attorney for the child pursuant to this section, the court
shall, to the extent practicable and appropriate, appoint the same attorney for the child, who has
previously represented the child. Notwithstanding any other provision of law, in a proceeding
under article three following an order of removal made pursuant to article seven hundred twentyfive of the criminal procedure law, the court shall, wherever practicable, appoint the counsel
representing the juvenile offender in the criminal proceedings as attorney for the child.
§ 249-a. Waiver of counsel
A minor who is a subject of a juvenile delinquency or person in need of supervision proceeding
shall be presumed to lack the requisite knowledge and maturity to waive the appointment of an
attorney for the child. This presumption may be rebutted only after an attorney for the child has
been appointed and the court determines after a hearing at which the attorney for the child
appears and participates and upon clear and convincing evidence that (a) the minor understands
6
the nature of the charges, the possible dispositional alternatives and the possible defenses to the
charges, (b) the minor possesses the maturity, knowledge and intelligence necessary to conduct
his own defense, and (c) waiver is in the best interest of the minor.
b.
Article 2, Part 6
Counsel for Indigent Adults in Family Court Proceedings
§ 261. Legislative findings and purpose
Persons involved in certain family court proceedings may face the infringements of fundamental
interests and rights, including the loss of a child's society and the possibility of criminal charges,
and therefore have a constitutional right to counsel in such proceedings. Counsel is often
indispensable to a practical realization of due process of law and may be helpful to the court in
making reasoned determinations of fact and proper orders of disposition. The purpose of this part
is to provide a means for implementing the right to assigned counsel for indigent persons in
proceedings under this act.
§ 262. Assignment of counsel for indigent persons
(a) Each of the persons described below in this subdivision has the right to the assistance of
counsel. When such person first appears in court, the judge shall advise such person before
proceeding that he or she has the right to be represented by counsel of his or her own choosing,
of the right to have an adjournment to confer with counsel, and of the right to have counsel
assigned by the court in any case where he or she is financially unable to obtain the same:
(i) the respondent in any proceeding under article ten or article ten-A of this act and the
petitioner in any proceeding under part eight of article ten of this act;
(ii) the petitioner and the respondent in any proceeding under article eight of this act;
(iii) the respondent in any proceeding under part three of article six of this act;
(iv) the parent, foster parent, or other person having physical or legal custody of the child
in any proceeding under article ten or ten-A of this act or § 358-a, 384 or 384-b of the social
services law, and a non-custodial parent or grandparent served with notice pursuant to paragraph
(e) of subdivision two of § 384-a of the social services law;
(v) the parent of any child seeking custody or contesting the substantial infringement of
his or her right to custody of such child, in any proceeding before the court in which the court
has jurisdiction to determine such custody;
(vi) any person in any proceeding before the court in which an order or other
determination is being sought to hold such person in contempt of the court or in willful violation
of a previous order of the court, except for a contempt which may be punished summarily under
§755 of the judiciary law;
(vii) the parent of a child in any adoption proceeding who opposes the adoption of such
child.
7
(viii) the respondent in any proceeding under article five of this act in relation to the
establishment of paternity.
(b) Assignment of counsel in other cases. In addition to the cases listed in subdivision (a) of this
section, a judge may assign counsel to represent any adult in a proceeding under this act if he
determines that such assignment of counsel is mandated by the constitution of the state of New
York or of the United States, and includes such determination in the order assigning counsel;
(c) Implementation. Any order for the assignment of counsel issued under this part shall be
implemented as provided in article eighteen-B of the county law.
c.
Article 11
Appeals
§ 1118. Applicability of civil practice law and rules
The provisions of the civil practice law and rules apply where appropriate to appeals under this
article, provided, however, that the fees required by § 8022 of the civil practice law and rules
shall not be required where the attorney for the appellant or attorney for the movant, as
applicable, certifies that such appellant or movant has been assigned counsel or an attorney for
the child pursuant to §249, 262 or 1120 of this act or §722 of the county law, or is represented
by a legal aid society or a legal services program or other non-profit organization, which has as
its primary purpose the furnishing of legal services to indigent persons, or by private counsel
working on behalf of or under the auspices of such society or organization. Where the attorney
for the appellant or the attorney for the movant certifies in accordance with procedures
established by the appropriate appellate division that the appellant or movant has been
represented in family court by assigned counsel or an attorney for the child, pursuant to §249,
262 or 1120 of this act or §722 of the county law, or is represented by a legal aid society or legal
services program or some other non-profit organization, which has as its primary purpose the
furnishing of legal services to indigent persons, or by private counsel working on behalf or under
the auspices of such society or organization, and that the appellant, who has indicated an
intention to appeal, or movant, continues to be eligible for assignment of counsel and, in the case
of counsel assigned to represent an adult party, continues to be indigent, the appellant or movant
shall be presumed eligible for poor person relief pursuant to §1101 of the civil practice law and
rules and for assignment of counsel on appeal without further motion. The appointment of
counsel and granting of poor person relief by the appellate division shall continue for the
purpose of filing a notice of appeal or motion for leave to appeal to the court of appeals.
§ 1121. Special procedures
1. Consistent with the provisions of §§ 354.2, 760 and 1052-b of this act the provisions of this
section shall apply to appeals taken from orders issued pursuant to articles three, seven, ten and
ten-A and parts one and two of article six of this act, and pursuant to §§358-a, 383-c, 384, and
384-b of the social services law.
2. Upon the filing of such order, it shall be the duty of counsel to the parties and the attorney for
8
the child to promptly advise the parties in writing of the right to appeal to the appropriate
appellate division of the supreme court, the time limitations involved, the manner of instituting
an appeal and obtaining a transcript of the testimony and the right to apply for leave to appeal as
a poor person if the party is unable to pay the cost of an appeal. It shall be the further duty of
such counsel or attorney for the child to explain to the client the procedures for instituting an
appeal, the possible reasons upon which an appeal may be based and the nature and possible
consequences of the appellate process.
3. It shall also be the duty of such counsel or attorney for the child to ascertain whether the party
represented by such attorney wishes to appeal and, if so, to serve and file the necessary notice of
appeal and, as applicable, to apply for leave to appeal as a poor person, to file a certification of
continued eligibility for appointment of counsel pursuant to § 1118 of this article, and to submit
such other documents as may be required by the appropriate appellate division.
4. If the party has been permitted to waive the appointment of an attorney for the child or
counsel appointed pursuant to §249-a or 262 of this act, it shall be the duty of the court to advise
the party of the right to the appointment of an attorney for the child or counsel for the purpose of
filing an appeal.
5. Where a party wishes to appeal, it shall also be the duty of such counsel or attorney for the
child, where appropriate, to apply for assignment of counsel for such party pursuant to
applicable provisions of this act, the judiciary law and the civil practice law and rules, and to file
a certification of continued eligibility for appointment of counsel and, in the case of counsel
assigned to represent an adult party, continued indigency, pursuant to § 1118 of this article and
to submit such other documents as may be required by the appropriate appellate division.
6. (a) Except as provided for herein, counsel for the appellant shall, no later than ten days after
filing the notice of appeal, request preparation of the transcript of the proceeding appealed therefrom.
(b) Counsel assigned or appointed pursuant to article eleven of the civil practice law and rules or
§1120 of this act shall, no later than ten days after receipt of notice of such appointment, request
preparation of the transcript of the proceeding appealed from.
(c) In any case where counsel is assigned or appointed pursuant to paragraph (b) of this
subdivision subsequent to the filing of the notice of appeal, such counsel shall, within ten days of
such assignment or appointment, request preparation of the transcript of the proceeding appealed
from.
(d) Where the appellant is seeking relief to proceed as a poor person pursuant to article eleven of
the civil practice law and rules, the transcript of the proceeding appealed from shall be requested
within ten days of the order determining the motion.
7. Such transcript shall be completed within thirty days from the receipt of the request of the
appellant. Where such transcript is not completed within such time period, the court reporter or
director of the transcription service responsible for the preparation of the transcript shall notify
the administrative judge of the appropriate judicial district. Such administrative judge shall
establish procedures to effectuate the timely preparation of such transcript. The appellate
divisions may establish additional procedures to effectuate the timely preparation of transcripts.
9
The appellate division shall establish procedures to ensure the expeditious filing and service of
the appellant's brief, the answering brief and any reply brief, which may include scheduling
orders. The appellant shall perfect the appeal within sixty days of receipt of the transcript of the
proceeding appealed from or within any different time that the appellate division has by rule
prescribed for perfecting such appeals under subdivision (c) of rule five thousand five hundred
thirty of the civil practice law and rules or as otherwise specified by the appellate division. Such
sixty day or other prescribed period may be extended by the appellate division for good cause
shown upon written application to the appellate division showing merit to the appeal and a
reasonable ground for an extension of time. Upon the granting of such an extension of time the
appellate division shall issue new specific deadlines by which the appellant's brief, the answering
brief and any reply brief must be filed and served.
B.
JUDICIARY LAW
Article 2
General Provisions Relating to Courts and Judges
§ 35. Assignment of counsel to indigent persons and appointment of physicians in certain proceedings
1. a. When a court orders a hearing in a proceeding upon a writ of habeas corpus to inquire into
the cause of detention of a person in custody in a state institution, or when it orders a hearing in a
civil proceeding to commit or transfer a person to or retain him in a state institution when such
person is alleged to be mentally ill, mentally defective or a narcotic addict, or when it orders a
hearing for the commitment of the guardianship and custody of a child to an authorized agency
by reason of the mental illness or mental retardation of a parent, or when it orders a hearing to
determine whether consent to the adoption of a child shall be required of a parent who is alleged
to be mentally ill or mentally retarded, or when it orders a hearing to determine the best interests
of a child when the parent of the child revokes a consent to the adoption of such child and such
revocation is opposed or in any adoption or custody proceeding if it determines that assignment
of counsel in such cases is mandated by the constitution of this state or of the United States, the
court may assign counsel to represent such person if it is satisfied that he is financially unable to
obtain counsel. Upon an appeal taken from an order entered in any such proceeding, the
appellate court may assign counsel to represent such person upon the appeal if it is satisfied that
he is financially unable to obtain counsel.
b. Upon an appeal in a criminal action or in a proceeding in the family court or surrogate's court
wherein the defendant or person entitled to counsel pursuant to the family court act or surrogate's
court procedure act, is financially unable to obtain counsel, the court of appeals or the appellate
division of the supreme court may assign counsel other than in the manner as is prescribed in
§722 of the county law only when it is satisfied that special circumstances require such
assignment.
2. The chief administrator of the courts may enter into an agreement with a legal aid society for
the society to provide assigned counsel in the proceedings specified in subdivision one of this
section. The agreement shall be in a form approved by the chief administrator and shall provide a
general plan for a program of assigned counsel services to be provided by such society. It shall
10
also provide that the society shall be reimbursed on a cost basis for services rendered.
3. No counsel assigned pursuant to this section shall seek or accept any fee for representing the
person for whom he or she is assigned without approval of the court as herein provided.
Whenever it appears that such person is financially able to obtain counsel or make partial
payment for the representation, counsel may report this fact to the court and the court may
terminate the assignment or authorize payment, as the interests of justice may dictate, to such
counsel. Counsel assigned hereunder shall at the conclusion of the representation receive
compensation at a rate of seventy-five dollars per hour for time expended in court, and seventyfive dollars per hour for time reasonably expended out of court, and shall receive reimbursement
for expenses reasonably incurred. For representation upon a hearing, compensation and
reimbursement shall be fixed by the court wherein the hearing was held and such compensation
shall not exceed four thousand four hundred dollars. For representation in an appellate court,
compensation and reimbursement shall be fixed by such court and such compensation shall not
exceed four thousand four hundred dollars. In extraordinary circumstances the court may provide
for compensation in excess of the foregoing limits.
4. In any proceeding described in paragraph (a) of subdivision one of this section, when a
person is alleged to be mentally ill, mentally defective or a narcotic addict, the court which
ordered the hearing may appoint no more than two psychiatrists, certified psychologists or
physicians to examine and testify at the hearing upon the condition of such person. A
psychiatrist, psychologist or physician so appointed shall, upon completion of his services,
receive reimbursement for expenses reasonably incurred and reasonable compensation for such
services, to be fixed by the court. Such compensation shall not exceed two hundred dollars if one
psychiatrist, psychologist or physician is appointed, or an aggregate sum of three hundred dollars
if two psychiatrists, psychologists or physicians are appointed, except that in extraordinary
circumstances the court may provide for compensation in excess of the foregoing limits.
4-a. In any proceeding under article ten of the mental hygiene law, the court which ordered the
hearing may appoint no more than two psychiatrists, certified psychologists or physicians to
examine and testify at the hearing upon the condition of such person. A psychiatrist,
psychologist or physician so appointed shall, upon completion of his or her services, receive
reimbursement for expenses reasonably incurred and reasonable compensation for such services,
to be fixed by the court in accordance with subdivision (a) of § 10.15 of the mental hygiene law.
5. All expenses for compensation and reimbursement under this section shall be a state charge to
be paid out of funds appropriated to the administrative office for the courts for that purpose. Any
rules and orders respecting the assignment and compensation of counsel, and the appointment
and compensation of psychiatrists, psychologists or physicians pursuant to this section and the
form and manner of processing of a claim submitted pursuant to this section shall be adopted by
the chief administrator. Each claim for compensation and reimbursement pursuant to
subdivisions three and four of this section shall be submitted for approval to the court which
made the assignment or appointment, and shall be on such form as the chief administrator may
direct. After such claim is approved by the court, it shall be certified to the comptroller for
payment by the state, out of the funds appropriated for that purpose.
6. Assigned counsel and guardians ad litem appointed pursuant to the provisions of title two of
article nine-B of the social services law shall be compensated in accordance with the provisions
of this section.
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7. Whenever the supreme court or a surrogate's court shall appoint counsel in a proceeding over
which the family court might have exercised jurisdiction had such action or proceeding been
commenced in family court or referred thereto pursuant to law, and under circumstances
whereby, if such proceeding were pending in family court, such court would be authorized by
§249 of the family court act to appoint an attorney for the child, such counsel shall be
compensated in accordance with the provisions of this section.
8. Whenever supreme court shall exercise jurisdiction over a matter which the family court
might have exercised jurisdiction had such action or proceeding been commenced in family
court or referred thereto pursuant to law, and under circumstances whereby, if such proceedings
were pending in family court, such court would be required by §262 of the family court act to
appoint counsel, supreme court shall also appoint counsel and such counsel shall be
compensated in accordance with the provisions of this section.
C.
COUNTY LAW
Article 18-B
Representations of Persons Accused of Crime or Parties
before the Family Court or Surrogate’s Court
§ 722. Plan for representation
The governing body of each county and the governing body of the city in which a county is
wholly contained shall place in operation throughout the county a plan for providing counsel to
persons charged with a crime or who are entitled to counsel pursuant to § 262 or §1120 of the
family court act, article six-C of the correction law, §407 of the surrogate's court procedure act
or article ten of the mental hygiene law, who are financially unable to obtain counsel. Each plan
shall also provide for investigative, expert and other services necessary for an adequate defense.
The plan shall conform to one of the following:
1. Representation by a public defender appointed pursuant to county law article eighteen-A.
2. In criminal proceedings, representation by counsel furnished by a private legal aid bureau or
society designated by the county or city, organized and operating to give legal assistance and
representation to persons charged with a crime within the city or county who are financially
unable to obtain counsel. In proceedings under the family court act, representation by a private
legal aid bureau or society, or by any corporation, voluntary association, or organization
permitted to practice law under the authority of subdivision five of § 495 of the judiciary law.
3. Representation by counsel furnished pursuant to a plan of a bar association in each county or
the city in which a county is wholly contained whereby the services of private counsel are
rotated and coordinated by an administrator, and such administrator may be compensated for
such service. Any plan of a bar association must receive the approval of the state administrator
before the plan is placed in operation. In the county of Hamilton, such representation may be by
counsel furnished by the Fulton county bar association pursuant to a plan of the Fulton county
bar association.
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4. Representation according to a plan containing a combination of any of the foregoing. Any
judge, justice or magistrate in assigning counsel pursuant to §§ 170.10, 180.10, 210.15 and
720.30 of the criminal procedure law, or in assigning counsel to a defendant when a hearing has
been ordered in a proceeding upon a motion, pursuant to article four hundred forty of the
criminal procedure law, to vacate a judgment or to set aside a sentence or on a motion for a writ
of error coram nobis, or in assigning counsel pursuant to the provisions of § 262 of the family
court act or § 407 of the surrogate's court procedure act, or in assigning counsel to a defendant
when a case has been calendared for consideration of resentencing pursuant to subdivision four
of § 601-d of the correction law or when a court is otherwise called upon to consider whether a
proper term of post-release supervision was imposed as part of a determinate sentence, shall
assign counsel furnished in accordance with a plan conforming to the requirements of this
section; provided, however, that when the county or the city in which a county is wholly
contained has not placed in operation a plan conforming to that prescribed in this subdivision or
subdivision three of this section and the judge, justice or magistrate is satisfied that a conflict of
interest prevents the assignment of counsel pursuant to the plan in operation, or when the county
or the city in which a county is wholly contained has not placed in operation any plan
conforming to that prescribed in this section, the judge, justice or magistrate may assign any
attorney in such county or city and, in such event, such attorney shall receive compensation and
reimbursement from such county or city which shall be at the same rate as is prescribed in §722b of this article. When a case has been calendared for consideration of resentencing pursuant to
subdivision four of § 601-d of the correction law or when a court is otherwise called upon to
consider whether a proper term of post-release supervision was imposed as part of a determinate
sentence, the attorney appointed should be the attorney who appeared for the defendant in
connection with the judgment or sentence or, if the defendant is currently represented concerning
his or her conviction or sentence or with respect to an appeal from his or her conviction or
sentence, such present counsel.
5. In classification proceedings under article six-C of the correction law or from an appeal
thereof, representation shall be according to a plan described in subdivisions one, two, three or
four of this section. If such plan includes representation by a private legal aid bureau or society,
such private legal aid bureau or society shall have been designated to give legal assistance and
representation to persons charged with a crime.
Upon an appeal in a criminal action, and on any appeal described in § 1120 of the family court
act, article six-C of the correction law or §407 of the surrogate's court procedure act, wherein the
party is financially unable to obtain counsel, the appellate court shall assign counsel furnished in
accordance with the plan, conforming to the requirements of this section, which is in operation in
the county or in the city in which a county is wholly contained wherein the judgment of
conviction, disposition, or order of the trial court was entered; provided, however, that when
such county or city has not placed in operation a plan conforming to that prescribed in
subdivision three or four of this section and such appellate court is satisfied that a conflict of
interest prevents the assignment of counsel pursuant to the plan in operation, or when such
county or city has not placed in operation any plan conforming to that prescribed in this section,
such appellate court may assign any attorney in such county or city and, in such event, such
attorney shall receive compensation and reimbursement from such county or city which shall be
at the same rate as is prescribed in § 722-b of this chapter.
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§ 722-a. Definition of crime
For the purposes of this article, the term "crime" shall mean a felony, misdemeanor, or the
breach of any law of this state or of any law, local law or ordinance of a political subdivision of
this state, other than one that defines a "traffic infraction," for which a sentence to a term of
imprisonment is authorized upon conviction thereof.
§ 722-b. Compensation and reimbursement for representation
1. All counsel assigned in accordance with a plan of a bar association conforming to the
requirements of § 722 of this article whereby the services of private counsel are rotated and
coordinated by an administrator shall at the conclusion of the representation receive:
(a) for representation of a person entitled to representation by law who is initially charged with a
misdemeanor or lesser offense and no felony, compensation for such misdemeanor or lesser
offense representation at a rate of sixty dollars per hour for time expended in court or before a
magistrate, judge or justice, and sixty dollars per hour for time reasonably expended out of court,
and shall receive reimbursement for expenses reasonably incurred; and
(b) for representation of a person in all other cases governed by this article, including all
representation in an appellate court, compensation at a rate of seventy-five dollars per hour for
time expended in court before a magistrate, judge or justice and seventy-five dollars per hour for
time reasonably expended out of court, and shall receive reimbursement for expenses reasonably
incurred.
2. Except as provided in this section, compensation for time expended in providing
representation:
(a) pursuant to paragraph (a) of subdivision one of this section shall not exceed two thousand
four hundred dollars; and
(b) pursuant to paragraph (b) of subdivision one of this section shall not exceed four thousand
four hundred dollars.
3. For representation on an appeal, compensation and reimbursement shall be fixed by the
appellate court. For all other representation, compensation and reimbursement shall be fixed by
the trial court judge. In extraordinary circumstances a trial or appellate court may provide for
compensation in excess of the foregoing limits and for payment of compensation and
reimbursement for expenses before the completion of the representation.
4. Each claim for compensation and reimbursement shall be supported by a sworn statement
specifying the time expended, services rendered, expenses incurred and reimbursement or
compensation applied for or received in the same case from any other source.
No counsel assigned hereunder shall seek or accept any fee for representing the party for whom
he or she is assigned without approval of the court as herein provided.
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§ 722-c. Services other than counsel
Upon a finding in an ex parte proceeding that investigative, expert or other services are
necessary and that the defendant or other person described in §249 or §262 of the family court
act, article six-C of the correction law or §407 of the surrogate's court procedure act, is
financially unable to obtain them, the court shall authorize counsel, whether or not assigned in
accordance with a plan, to obtain the services on behalf of the defendant or such other person.
The court upon a finding that timely procurement of necessary services could not await prior
authorization may authorize the services nunc pro tunc. The court shall determine reasonable
compensation for the services and direct payment to the person who rendered them or to the
person entitled to reimbursement. Only in extraordinary circumstances may the court provide for
compensation in excess of one thousand dollars per investigative, expert or other service
provider.
Each claim for compensation shall be supported by a sworn statement specifying the time
expended, services rendered, expenses incurred and reimbursement or compensation applied for
or received in the same case from any other source.
§ 722-d. Duration of assignment
Whenever it appears that the defendant is financially able to obtain counsel or to make partial
payment for the representation or other services, counsel may report this fact to the court and the
court may terminate the assignment of counsel or authorize payment, as the interests of justice
may dictate, to the public defender, private legal aid bureau or society, private attorney, or
otherwise.
§ 722-e. Expenses
All expenses for providing counsel and services other than counsel hereunder shall be a county
charge or in the case of a county wholly located within a city a city charge to be paid out of an
appropriation for such purposes.
15
D.
CIVIL PRACTICE LAW AND RULES
a.
Article 11
Poor Persons
§ 1101. Motion for permission to proceed as a poor person; affidavit; certificate; notice;
waiver of fee; when motion not required
(a) Motion; affidavit. Upon motion of any person, the court in which an action is triable, or to
which an appeal has been or will be taken, may grant permission to proceed as a poor person.
Where a motion for leave to appeal as a poor person is brought to the court in which an appeal
has been or will be taken, such court shall hear such motion on the merits and shall not remand
such motion to the trial court for consideration. The moving party shall file an affidavit setting
forth the amount and sources of his or her income and listing his or her property with its value;
that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the
action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the
merit of the contentions can be ascertained; and whether any other person is beneficially
interested in any recovery sought and, if so, whether every such person is unable to pay such
costs, fees and expenses. An executor, administrator or other representative may move for
permission on behalf of a deceased, infant or incompetent poor person.
(b) Certificate. The court may require the moving party to file with the affidavit a certificate of
an attorney stating that the attorney has examined the action and believes there is merit to the
moving party's contentions.
(c) Notice. Except as provided in subdivisions (d) and (e) of this section, if an action has already
been commenced, notice of the motion shall be served on all parties, and notice shall also be
given to the county attorney in the county in which the action is triable or the corporation
counsel if the action is triable in the city of New York.
(d) [Expires and repealed Sept 1, 2009] Waiver of fee in certain cases. Except as otherwise
provided in subdivision (f) of this section, if applicable, a plaintiff may seek to commence his or
her action without payment of the fee required by filing the form affidavit, attesting that such
plaintiff is unable to pay the costs, fees and expenses necessary to prosecute or defend the action,
which shall be available in the clerk's office along with the summons and complaint or summons
with notice or third-party summons and complaint. The case will be given an index number, or,
in courts other than the supreme or county courts, any necessary filing number and the
application will be submitted to a judge of the court. If the court approves the application, the
plaintiff will by written order be given notice that all fees and costs relating to the filing and
service shall be waived. If the court denies the application the plaintiff will by written order be
given notice that the case will be dismissed if the fee is not paid within one hundred twenty days
of the date of the order.
(e) When motion not required. Where a party is represented in a civil action by a legal aid
society or a legal services or other non-profit organization, which has as its primary purpose the
furnishing of legal services to indigent persons, or by private counsel working on behalf of or
under the auspices of such society or organization, all fees and costs relating to the filing and
service shall be waived without the necessity of a motion and the case shall be given an index
number, or, in a court other than the supreme or county court, an appropriate filing number,
provided that a determination has been made by such society, organization or attorney that such
16
party is unable to pay the costs, fees and expenses necessary to prosecute or defend the action,
and that an attorney's certification that such determination has been made is filed with the clerk
of the court along with the summons and complaint or summons with notice or third-party
summons and complaint or otherwise provided to the clerk of the court. Where an attorney
certifies, pursuant to §1118 of the family court act, and in accordance with procedures of the
appropriate appellate division, that a party or child who is the subject of an appeal has been
represented in the family court by assigned counsel or an attorney for the child or by a legal aid
society or a legal services or other non-profit organization, which has as its primary purpose the
furnishing of legal services to indigent persons, or by private counsel working on behalf of or
under the auspices of such society or organization, and, in the case of a counsel assigned to an
adult party, that the party continues to be indigent, the party or child shall be presumed eligible
for poor person relief pursuant to this section.
(f) [Expires Sept 1, 2009] Fees for inmates.
1. Notwithstanding any other provision of law to the contrary, a federal, state or local inmate
under sentence for conviction of a crime may seek to commence his or her action or proceeding
by paying a reduced filing fee as provided in paragraph two of this subdivision. Such inmate
shall file the form affidavit referred to in subdivision (d) of this section along with the summons
and complaint or summons with notice or third-party summons and complaint or petition or
notice of petition or order to show cause. As part of such application, the inmate shall indicate
the name and mailing address of the facility at which he or she is confined along with the name
and mailing address of any other federal, state or local facility at which he or she was confined
during the preceding six month period. The case will be given an index number if applicable, or,
in courts other than the supreme or county courts, any necessary filing number and the
application will be submitted to a judge of the court. Upon receipt of the application, the court
shall obtain from the appropriate official of the facility at which the inmate is confined a
certified copy of the inmate's trust fund account statement (or institutional equivalent) for the six
month period preceding filing of the inmate's application. If the inmate has been confined for
less than six months at such facility, the court shall obtain additional information as follows:
(i) in the case of a state inmate who has been transferred from another state correctional
facility, the court shall obtain a trust fund account statement for the six month period from the
central office of the department of correctional services in Albany; or
(ii) in the case of a state inmate who is newly transferred from a federal or local correctional
facility, the court shall obtain any trust fund account statement currently available from such
facility. The court may, in its discretion, seek further information from the prior or current facility.
2. If the court determines that the inmate has insufficient means to pay the full filing fee, the
court may permit the inmate to pay a reduced filing fee, the minimum of which shall not be less
than fifteen dollars and the maximum of which shall not be more than fifty dollars. The court
shall require an initial payment of such portion of the reduced filing fee as the inmate can
reasonably afford or shall authorize no initial payment of the fee if exceptional circumstances
render the inmate unable to pay any fee; provided however, that the difference between the
amount of the reduced filing fee and the amount paid by the inmate in the initial partial payment
shall be assessed against the inmate as an outstanding obligation to be collected either by the
superintendent or the municipal official of the facility at which the inmate is confined, as the
case may be, in the same manner that mandatory surcharges are collected as provided for in
subdivision five of § 60.35 of the penal law. The court shall notify the superintendent or the
17
municipal official of the facility where the inmate is housed of the amount of the reduced filing
fee that was not directed to be paid by the inmate. Thereafter, the superintendent or the
municipal official shall forward to the court any fee obligations that have been collected,
provided however, that:
(i) in no event shall the filing fee collected exceed the amount of fees required for the
commencement of an action or proceeding; and
(ii) in no event shall an inmate be prohibited from proceeding for the reason that the
inmate has no assets and no means by which to pay the initial partial filing fee.
3. The institution at which an inmate is confined, or the central office for the department of
correctional services, whichever is applicable, shall promptly provide the trust fund account
statement to the inmate as required by this subdivision.
4. Whenever any federal, state or local inmate obtains a judgment in connection with any action
or proceeding which exceeds the amount of the filing fee, paid in accordance with the provisions
of this subdivision for commencing such action or proceeding, the court shall award to the
prevailing inmate, as a taxable disbursement, the actual amount of any fee paid to commence the
action or proceeding.
5. The provisions of this subdivision shall not apply to a proceeding commenced pursuant to
article seventy-eight of this chapter which alleges a failure to correctly award or certify jail time
credit due an inmate, in violation of § 600-a of the correction law and § 70.30 of the penal law.
§ 1102. Privileges of poor person
(a) Attorney. The court in its order permitting a person to proceed as a poor person may assign
an attorney.
(b) Stenographic transcript. Where a party has been permitted by order to appeal as a poor
person, the court clerk, within two days after the filing of said order with him, shall so notify the
court stenographer, who, within twenty days of such notification shall make and certify two
typewritten transcripts of the stenographic minutes of said trial or hearing, and shall deliver one
of said transcripts to the poor person or his attorney, and file the other with the court clerk
together with an affidavit of the fact and date of such delivery and filing. The expense of such
transcripts shall be a county charge or, in the counties within the city of New York, a city charge,
as the case may be, payable to the stenographer out of the court fund upon the certificate of the
judge presiding at the trial or hearing. A poor person may be furnished with a stenographic
transcript without fee by order of the court in proceedings other than appeal, the fee therefor to
be paid by the county or, in the counties within the city of New York by the city, as the case may
be, in the same manner as is paid for transcripts on appeal. Notwithstanding this or any other
provision of law, fees paid for stenographic transcripts with respect to those proceedings
specified in paragraph (a) of subdivision one of § 35 of the judiciary law shall be paid by the
state in the manner prescribed by subdivision four of §35 of the judiciary law.
(c) Appeals. On an appeal or motion for permission to appeal a poor person may submit
typewritten briefs and appendices, furnishing one legible copy for each appellate justice.
(d) Costs and fees. A poor person shall not be liable for the payment of any costs or fees unless
18
a recovery by judgment or by settlement is had in his favor in which event the court may direct
him to pay out of the recovery all or part of the costs and fees, a reasonable sum for the services
and expenses of his attorney and any sum expended by the county or city under subdivision (b).
b.
Article 12
Infants, Incompetents and Conservatees
R 1202. Appointment of guardian ad litem
(a) By whom motion made. The court in which an action is triable may appoint a guardian ad
litem at any stage in the action upon its own initiative or upon the motion of:
1. an infant party if he is more than fourteen years of age; or
2. a relative, friend or a guardian, committee of the property, or conservator; or
3. any other party to the action if a motion has not been made under paragraph one or two within
ten days after completion of service.
(b) Notice of motion. Notice of a motion for appointment of a guardian ad litem for a person
shall be served upon the guardian of his property, upon his committee or upon his conservator,
or if he has no such guardian, committee, or conservator, upon the person with whom he resides.
Notice shall also be served upon the person who would be represented if he is more than
fourteen years of age and has not been judicially declared to be incompetent.
(c) Consent. No order appointing a guardian ad litem shall be effective until a written consent of
the proposed guardian has been submitted to the court together with an affidavit stating facts
showing his ability to answer for any damage sustained by his negligence or misconduct.
§ 1204. Compensation of guardian ad litem
A court may allow a guardian ad litem a reasonable compensation for his services to be paid in
whole or part by any other party or from any recovery had on behalf of the person whom such
guardian represents or from such person's other property. No order allowing compensation shall
be made except on an affidavit of the guardian or his attorney showing the services rendered.
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III.
NEW YORK CODE, RULES AND REGULATIONS
A.
RULES OF THE CHIEF ADMINISTRATOR OF THE COURTS
Part 127
Assignment and Compensation of Counsel, Psychiatrists, Psychologists and Physicians
§ 127.1 Assignment and compensation of counsel, psychiatrists, psychologists and
physicians
(a) Assignments and appointments of counsel, psychiatrists, psychologists, physicians and social
workers shall be made by the court in accordance with such rules as may be adopted by each
Appellate Division. Each Appellate Division may compile and maintain such lists of attorneys,
psychiatrists, psychologists, physicians and social workers as it shall deem appropriate for the
implementation of its rules. Such rules may provide that the appointment of psychiatrists,
psychologists, physicians and social workers shall be made after consultation with the Mental
Hygiene Legal Service.
(b) Each claim by assigned counsel, psychiatrist, psychologist or physician or social worker
payable from State funds for services rendered to indigent persons, pursuant to § 35 of the
Judiciary Law, shall be submitted on forms authorized by the Chief Administrator of the Courts
for approval within 45 days after completion of service to the court which made assignment.
Upon approval, the court shall thereupon, within 15 days after receipt, forward such claims to
the appropriate Appellate Division for certification to the Comptroller for payment. If the initial
assignment is made by either an Appellate Division or the Court of Appeals, the claim shall be
submitted on a form promulgated by the Chief Administrator for approval to the Appellate
Division or Court of Appeals, and thereafter, upon receipt of such approval, it shall be certified
to the Comptroller for payment.
§ 127.2 Compensation of counsel and other providers in extraordinary circumstances
(a) Whenever an attorney, psychiatrist, psychologist, physician, or a person providing
investigative, expert or other services, seeks compensation in excess of the statutory limits
prescribed by Article 18-B of the County Law or § 35 of the Judiciary Law, because of
extraordinary circumstances, he or she shall submit with his or her claim a detailed affidavit
stating the nature of the proceeding, the manner in which the time was expended, the necessity
therefor, and all other facts that demonstrate extraordinary circumstances. If the claim is by an
attorney, the attorney shall state the disposition of the matter.
(b) The order of the trial judge with respect to a claim for compensation in excess of the
statutory limits may be reviewed by the appropriate administrative judge, with or without
application, who may modify the award if it is found that the award reflects an abuse of
discretion by the trial judge. Any order modifying a trial judge's award shall be in writing.
(c) An application for review may be made by any person or governmental body affected by the order.
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§ 127.4 Compensation of attorneys for children
Claims by attorneys for children for compensation, expenses and disbursements pursuant to §
245 of the Family Court Act and § 35 of the Judiciary Law shall be determined pursuant to the
rules of the appropriate Appellate Division.
§ 127.5 Workload of the attorney for the child
(a) Subject to adjustment based on the factors set forth in subdivision (b), the number of children
represented at any given time by an attorney appointed pursuant to § 249 of the Family Court
Act shall not exceed 150.
(b) For representation provided under an agreement pursuant to § 243(a) and (b) of the Family
Court Act, the workload standards set forth in subdivision (a) may be adjusted based on such
factors as:
(1) Differences among categories of cases that comprise the workload of the office covered by
the agreement;
(2) The level of activity required at different phases of the proceeding;
(3) The weighting of different categories and phases of cases;
(4) Availability and use of support staff;
(5) The representation of multiple children in a case;
(6) Local court practice, including the duration of a case;
(7) Other relevant considerations.
(c) The administrators of offices pursuant to such agreements shall be responsible for managing
resources and for allocating cases among staff attorneys to promote the effective representation
of children and to ensure that the average workload of the attorneys for children in the office
complies with the standards set forth in subdivision (a) as modified by subdivision (b).
(d) For representation provided by a panel of attorneys for children pursuant to § 243(c) of the
Family Court Act, the Appellate Division may adjust the workload standards of subdivision (a)
to ensure the effective representation of children.
(e) The Chief Administrator of the Courts, with respect to representation pursuant to § 243(a) of
the Family Court Act, and the Appellate Divisions, with respect to representation pursuant to
§243(b) and (c) of the Family Court Act, shall annually, at the time of the preparation and
submission of the judiciary budget, review the workload of such offices and panels, and shall
take action to assure compliance with this rule.
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B.
RULES OF THE CHIEF JUDGE
Part 36
Appointments by the Court
A member of the Panel of Attorneys for Children MUST register with the Office of Court
Administration pursuant to Rule 36 of the Rules of the Chief Judge in order to be eligible to
accept assignment as Counsel for the Child where private parties will pay for the representation.
Applications for appointment can be found at www.nycourts.gov/ip/gfs.
§ 36.0 Preamble
Public trust in the judicial process demands that appointments by judges be fair, impartial and
beyond reproach. Accordingly, these rules are intended to ensure that appointees are selected on
the basis of merit, without favoritism, nepotism, politics or other factors unrelated to the
qualifications of the appointee or the requirements of the case.
The rules cannot be written in a way that foresees every situation in which they should be
applied. Therefore, the appointment of trained and competent persons, and the avoidance of
factors unrelated to the merit of the appointments or the value of the work performed are the
fundamental objectives that should guide all appointments made, and orders issued, pursuant to
this Part.
§ 36.1 Application
(a) Except as set forth in subdivision (b), this Part shall apply to the following appointments
made by any judge or justice of the Unified Court System:
(1) guardians;
(2) guardians ad litem, including guardians ad litem appointed to investigate and report to the
court on particular issues, and their counsel and assistants;
(3) attorneys for children who are not paid from public funds, in those judicial departments
where their appointments are authorized;
(4) court evaluators;
(5) attorneys for alleged incapacitated persons;
(6) court examiners;
(7) supplemental needs trustees;
(8) receivers;
22
(9) referees (other than special masters and those otherwise performing judicial functions in a
quasi-judicial capacity);
(10) the following persons or entities performing services for guardians or receivers:
(i) counsel
(ii) accountants
(iii) auctioneers
(iv) appraisers
(v) property managers
(vi) real estate brokers
(11) a public administrator within the City of New York and for the counties of Westchester,
Onondaga, Erie, Monroe, Suffolk and Nassau and counsel to the public administrator, except
that only §§ 36.2 (c) and 36.4(e) of this Part shall apply, and that § 36.2 (c) shall not apply to
incumbents in these positions until one year after the effective date of this paragraph.
(b) Except for §§ 36.2(c)(6) and 36.2(c)(7), this Part shall not apply to:
(1) appointments of attorneys for children pursuant to § 243 of the Family Court Act, guardians
ad litem pursuant to § 403-a of the Surrogate's Court Procedure Act, or the Mental Hygiene
Legal Service;
(2) the appointment of, or the appointment of any persons or entities performing services for, any
of the following:
(i) a guardian who is a relative of (A) the subject of the guardianship proceeding or (B)
the beneficiary of a proceeding to create a supplemental needs trust; a person or entity
nominated as guardian by the subject of the proceeding or proposed as guardian by a
party to the proceeding; a supplemental needs trustee nominated by the beneficiary of a
supplemental needs trust or proposed by a proponent of the trust; or a person or entity
having a legally recognized duty or interest with respect to the subject of the proceeding;
(ii) a guardian ad litem nominated by an infant of 14 years of age or over;
(iii) a non-profit institution performing property management or personal needs services,
or acting as court evaluator;
(iv) a bank or trust company as a depository for funds or as a supplemental needs trustee;
(v) except as set forth in § 36.1(a)(11), a public official vested with the powers of
an administrator;
(vi) a person or institution whose appointment is required by law;
(vii) a physician whose appointment as a guardian ad litem is necessary where
emergency medical or surgical procedures are required.
(3) an appointment other than above without compensation, except that the appointee must file a
notice of appointment pursuant to § 36.4(a) of this Part.
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§ 36.2 Appointments
(a) Appointments by the judge. All appointments of the persons or entities set forth in § 36.1,
including those persons or entities set forth in § 36.1(a)(10) who perform services for guardians
or receivers, shall be made by the judge authorized by law to make the appointment. In making
appointments of persons or entities to perform services for guardians or receivers, the appointing
judge may consider the recommendation of the guardian or receiver.
(b) Use of lists. (1) All appointments pursuant to this Part shall be made by the appointing judge
from the appropriate list of applicants established by the Chief Administrator of the Courts
pursuant to § 36.3 of this Part.
(2) An appointing judge may appoint a person or entity not on the appropriate list of applicants
upon a finding of good cause, which shall be set forth in writing and shall be filed with the
fiduciary clerk at the time of the making of the appointment. The appointing judge shall send a
copy of such writing to the Chief Administrator. A judge may not appoint a person or entity that
has been removed from a list pursuant to § 36.3(e).
(3) Appointments made from outside the lists shall remain subject to all of the requirements and
limitations set forth in this Part, except that the appointing judge may waive any education and
training requirements where completion of these requirements would be impractical.
(c) Disqualifications from appointment.
(1) No person shall be appointed who is a judge or housing judge of the Unified Court System of
the State of New York, or who is a relative of, or related by marriage to, a judge or housing
judge of the Unified Court System within the fourth degree of relationship.
(2) No person serving as a judicial hearing officer pursuant to Part 122 of the Rules of the Chief
Administrator shall be appointed in actions or proceedings in a court in a county where he or she
serves on a judicial hearing officer panel for such court.
(3) No person shall be appointed who is a full-time or part-time employee of the Unified Court
System. No person who is the spouse, sibling, parent or child of an employee who holds a
position at salary grade JG24 or above, or its equivalent, shall be appointed by a court within the
judicial district where the employee is employed or, with respect to an employee with statewide
responsibilities, by any court in the state.
(4)(i) No person who is the chair or executive director, or their equivalent, of a state or county
political party, or the spouse, sibling, parent or child of that official, shall be appointed while that
official serves in that position and for a period of two years after that official no longer holds that
position. This prohibition shall apply to the members, associates, counsel and employees of any
law firms or entities while the official is associated with that firm or entity.
(ii) No person who has served as a campaign chair, coordinator, manager, treasurer or finance
chair for a candidate for judicial office, or the spouse, sibling, parent or child of that person, or
anyone associated with the law firm of that person, shall be appointed by the judge for whom
that service was performed for a period of two years following the judicial election. If the
24
candidate is a sitting judge, the disqualifications shall apply as well from the time the person
assumes any of the above roles during the campaign for judicial office.
(5) No former judge or housing judge of the Unified Court System, or the spouse, sibling, parent
or child of such judge, shall be appointed, within two years from the date the judge left judicial
office, by a court within the jurisdiction where the judge served. Jurisdiction is defined as
follows:
(i) The jurisdiction of a judge of the Court of Appeals shall be statewide.
(ii) The jurisdiction of a justice of an Appellate Division shall be the judicial department
within which the justice served.
(iii) The jurisdiction of a justice of the Supreme Court and a judge of the Court of Claims
shall be the principal judicial district within which the justice or judge served.
(iv) With respect to all other judges, the jurisdiction shall be the principal county within
which the judge served.
(6) No attorney who has been disbarred or suspended from the practice of law shall be appointed
during the period of disbarment or suspension.
(7) No person convicted of a felony, or for five years following the date of sentencing after
conviction of a misdemeanor (unless otherwise waived by the Chief Administrator upon
application), shall be appointed unless that person receives a certificate of relief from disabilities.
(8) No receiver or guardian shall be appointed as his or her own counsel, and no person
associated with a law firm of that receiver or guardian shall be appointed as counsel to that
receiver or guardian, unless there is a compelling reason to do so.
(9) No attorney for an alleged incapacitated person shall be appointed as guardian to that person,
or as counsel to the guardian of that person.
(10) No person serving as a court evaluator shall be appointed as guardian for the incapacitated
person except under extenuating circumstances that are set forth in writing and filed with the
fiduciary clerk at the time of the appointment.
(d) Limitations on appointments based upon compensation. (1) No person or entity shall be
eligible to receive more than one appointment within a calendar year for which the compensation
anticipated to be awarded to the appointee in any calendar year exceeds the sum of $ 15,000.
(2) If a person or entity has been awarded more than an aggregate of $ 75,000 in compensation
by all courts during any calendar year, the person or entity shall not be eligible for compensated
appointments by any court during the next calendar year.
(3) For purposes of this Part, the term "compensation" shall mean awards by a court of fees,
commissions, allowances or other compensation, excluding costs and disbursements.
(4) These limitations shall not apply where the appointment is necessary to maintain continuity
of representation of or service to the same person or entity in further or subsequent proceedings.
25
§ 36.3 Procedure for appointment
(a) Application for appointment. The Chief Administrator shall provide for the application by
persons or entities seeking appointments pursuant to this Part on such forms as shall be
promulgated by the Chief Administrator. The forms shall contain such information as is
necessary to establish that the applicant meets the qualifications for the appointments covered by
this Part and to apprise the appointing judge of the applicant's background.
(b) Qualifications for appointment. The Chief Administrator shall establish requirements of
education and training for placement on the list of available applicants. These requirements shall
consist, as appropriate, of substantive issues pertaining to each category of appointment -including applicable law, procedures, and ethics -- as well as explications of the rules and
procedures implementing the process established by this Part. Education and training courses
and programs shall meet the requirements of these rules only if certified by the Chief
Administrator. Attorney participants in these education and training courses and programs may
be eligible for continuing legal education credit in accordance with the requirements of the
Continuing Legal Education Board.
(c) Establishment of lists. The Chief Administrator shall establish separate lists of qualified
applicants for each category of appointment, and shall make available such information as will
enable the appointing judge to be apprised of the background of each applicant. The Chief
Administrator may establish more than one list for the same appointment category where
appropriate to apprise the appointing judge of applicants who have substantial experience in that
category. Pursuant to § 81.32(b) of the Mental Hygiene Law, the Presiding Justice of the
appropriate Appellate Division shall designate the qualified applicants on the lists of court
examiners established by the Chief Administrator.
(d) Reregistration. The Chief Administrator shall establish a procedure requiring that each
person or entity on a list reregister every two years in order to remain on the list.
(e) Removal from list. The Chief Administrator may remove any person or entity from any list
for unsatisfactory performance or any conduct incompatible with appointment from that list, or if
disqualified from appointment pursuant to this Part. A person or entity may not be removed
except upon receipt of a written statement of reasons for the removal and an opportunity to
provide an explanation and to submit facts in opposition to the removal.
§ 36.4 Procedure after appointment
(a) Notice of appointment and certification of compliance. (1) Every person or entity appointed
pursuant to this Part shall file with the fiduciary clerk of the court from which the appointment is
made, within 30 days of the making of the appointment, (i) a notice of appointment and (ii) a
certification of compliance with this Part, on such form as promulgated by the Chief
Administrator. Copies of this form shall be made available at the office of the fiduciary clerk and
shall be transmitted by that clerk to the appointee immediately after the making of the
appointment by the appointing judge. An appointee who accepts an appointment without
compensation need not complete the certification of compliance portion of the form.
(2) The notice of appointment shall contain the date of the appointment and the nature of the appointment.
(3) The certification of compliance shall include: (i) a statement that the appointment is in
26
compliance with §§36.2 (c) and (d); and (ii) a list of all appointments received, or for which
compensation has been awarded, during the current calendar year and the year immediately
preceding the current calendar year, which shall contain (A) the name of the judge who made
each appointment, (B) the compensation awarded, and (c) where compensation remains to be
awarded, (i) the compensation anticipated to be awarded and (ii) separate identification of those
appointments for which compensation of $ 15,000 or more is anticipated to be awarded during
any calendar year. The list shall include the appointment for which the filing is made.
(4) A person or entity who is required to complete the certification of compliance, but who is
unable to certify that the appointment is in compliance with this Part, shall immediately so
inform the appointing judge.
(b) Approval of compensation. (1) Upon seeking approval of compensation of more than $ 500,
an appointee must file with the fiduciary clerk, on such form as is promulgated by the Chief
Administrator, a statement of approval of compensation, which shall contain a confirmation to
be signed by the fiduciary clerk that the appointee has filed the notice of appointment and
certification of compliance.
(2) A judge shall not approve compensation of more than $ 500, and no compensation shall be
awarded, unless the appointee has filed the notice of appointment and certification of compliance
form required by this Part and the fiduciary clerk has confirmed to the appointing judge the
filing of that form.
(3) Each approval of compensation of $ 5,000 or more to appointees pursuant to this section
shall be accompanied by a statement, in writing, of the reasons therefor by the judge. The judge
shall file a copy of the order approving compensation and the statement with the fiduciary clerk
at the time of the signing of the order.
(4) Compensation to appointees shall not exceed the fair value of services rendered. Appointees
who serve as counsel to a guardian or receiver shall not be compensated as counsel for services
that should have been performed by the guardian or receiver.
(c) Reporting of compensation received by law firms. A law firm whose members, associates
and employees have had a total of $ 50,000 or more in compensation approved in a single
calendar year for appointments made pursuant to this Part shall report such amounts on a form
promulgated by the Chief Administrator.
(d) Exception. The procedure set forth in this section shall not apply to the appointment of a
referee to sell real property and a referee to compute whose compensation for such appointments
is not anticipated to exceed $ 750.
(e) Approval and reporting of compensation received by counsel to the public administrator.
(1) A judge shall not approve compensation to counsel to the public administrator in excess of
the fee schedule promulgated by the administrative board of the public administrator under
SCPA 1128 unless accompanied by the judge's statement, in writing, of the reasons therefor, and
by the appointee's affidavit of legal services under SCPA 1108 setting forth in detail the services
rendered, the time spent, and the method or basis by which the requested compensation was determined.
(2) Any approval of compensation in excess of the fee schedule promulgated by the
administrative board of the public administrator shall be reported to the Office of Court
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Administration on a form promulgated by the Chief Administrator and shall be accompanied by
a copy of the order approving compensation, the judge's written statement, and the counsel's
affidavit of legal services, which records shall be published as determined by the Chief Administrator.
(3) Each approval of compensation of $ 5,000 or more to counsel shall be reported to the Office
of Court Administration on a form promulgated by the Chief Administrator and shall be
published as determined by the Chief Administrator.
§ 36.5 Publication of appointments
(a) All forms filed pursuant to § 36.4 shall be public records.
(b) The Chief Administrator shall arrange for the periodic publication of the names of all persons
and entities appointed by each appointing judge, and the compensation approved for each
appointee.
C.
a.
RULES OF THE APPELLATE DIVISION, FIRST DEPARTMENT
Part 611
Attorneys for Children Plan
§ 611.1 Introduction
(a)(1) The Family Court panels now established in the First Judicial Department pursuant to
article 18-B of the County Law and pertinent provisions of the Family Court Act, shall continue
in effect and shall constitute the Family Court Panel Plan in the First Judicial Department.
(2) The roster of attorneys for children certified pursuant to the Rules of the Chief Administrator
Part 36 and the former Rules of the Court Part 614, to accept appointment as an attorney for a
child pursuant to Family Court § 249(a), Civil Practice Law and Rules § 1202, or Uniform Rules
of the Trial Court § 202.16(f)(3), shall continue in effect in this department as part of the
Attorneys for Children Plan.
(3) The Family Court Panel Plan and the attorneys for children roster are merged to form the
Attorneys for Children Plan. An attorney certified for appointment in one capacity shall be
deemed certified for appointment in the other capacity and by virtue of the certification agrees to
accept assignments and appointments in Supreme Court or Family Court.
(b) The Director of the Office of Attorneys for Children, appointed by the Presiding Justice of the
Appellate Division, First Department, shall administer the Attorneys for Children Plan.
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§ 611.2 Assignment of counsel in Family Court
Counsel to be assigned pursuant to the Family Court Act, § 262, shall be selected from such
panels as have been established by the assigned counsel plan in the First Judicial Department.
§ 611.3 Appointment of Attorneys for Children in Family Court
Where for sufficient reason attorneys for children to be appointed pursuant to the Family Court
Act, §249, cannot otherwise be designated as provided in § 243(a) of such act, the court may
draw upon such panels as have been established by the assigned counsel plan for the First Judicial
Department as if such panels had been separately established pursuant to § 243 (c) of such act.
§ 611.4 Certification of attorneys
Certification of an attorney as a member of any panel of the Attorneys for Children Plan shall be
for a one-year term subject to:
(a) annual redesignation pursuant to Family Court Act, § 244(b); and
(b) recertification as directed by the justices of the Appellate Division, First Department.
§ 611.5 Departmental Advisory Committee
Commencing January 1, 1980, the justices of the Appellate Division, First Department
established a Departmental Advisory Committee. This committee shall remain in operation and
have the authority and responsibility to oversee the operation of the Attorneys for Children Plan
and to consider all matters that pertain to the qualifications, performance and professional
conduct of individual plan attorneys in their assignments and appointments as plan attorneys, and
the representation of indigent parties in Family Court proceedings.
§ 611.6 Composition of the Departmental Advisory Committee
(a) The committee shall be composed of no fewer than 15 attorneys who shall be experienced in
Family Court and domestic relations proceedings, three Family Court Judges, one mental health
expert, one representative from each of the three bar associations designated in § 612.3 of this
Title, one faculty member of an accredited law school in the First Judicial Department, the
Director of the Office of Attorneys for Children and the Assigned Counsel Plan Administrator.
(b) The justices of the Appellate Division, First Department shall nominate all committee
members, except the representatives of the three bar associations, who shall be nominated by the
respective presidents of those associations. The presiding Justice may appoint such additional
members to the committee as will facilitate its operation. The term of appointment for each
committee member, except the Director of the Office of Attorneys for Children and Assigned
Counsel Plan Administrator, shall be staggered and for a period of three years subject to
renomination by the justices of the Appellate Division. The term of appointment for the Director
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of the Office of Attorneys for Children and the Assigned Counsel Plan Administrator shall be
coextensive with the term of their respective positions.
(c) The Presiding Justice shall designate a chair and vice-chair of the committee.
§ 611.7 Duties of the Departmental Advisory Committee
The Departmental Advisory Committee shall conduct its activities and carry out the duties
enumerated in this Part pursuant to the bylaws of the Assigned Counsel Plan Central Screening
Committee, set forth in Part 612 of this Title. The Director of the Office of Attorneys for Children
shall be substituted where reference in the bylaws is made to the administrator.
§ 611.8 Screening process
(a) All applicants for plan membership shall be screened by the Departmental Advisory Committee.
(b) The committee, in accordance with standards for admission to the panels, entitled "General
Requirements for All Applicants to the Family Court Panels" and "General Requirements for
Attorneys for Children to Qualify for Appointment in Domestic Relations Matters", shall make a
determination as to whether an attorney is qualified for membership on any of the panels.
§ 611.9 Continuing legal education
(a) The Departmental Advisory Committee, in cooperation with the Assigned Counsel Plan, the
Continuing Legal Education Office and the three bar associations designated in § 612.3 of this
Title, shall:
(1) on a continuing basis, develop and conduct training and education programs that focus on
Domestic Relations Law and Practice before the Family Court;
(2) annually promulgate a list of recommended training and education programs pertaining to
domestic relations and family law sponsored by independent providers of legal education; and
(3) organize and operate a co-counsel program.
(b) Members of the Attorneys for Children Plan biennially must complete at least eight hours of
training and education programs that are either sponsored by the Departmental Advisory
Committee or included on the list of recommended programs referred to in subdivision (a) of this section.
§ 611.10 Annual report
(a) No later than September 30th of each calendar year the Departmental Advisory Committee
shall file with the Appellate Division a written evaluation of the panels and the panel attorneys,
setting forth information regarding: the performance of plan attorneys, efficiency of the panels as
a means of representing indigent parties, the training and education programs sponsored and
30
recommended by the committee, and proposals for improving the operation of the Attorneys for
Children Plan. In preparing the written evaluation, the committee may consult with Family Court
judges and bar associations. Plan attorneys shall cooperate with the committee in preparing the evaluation.
(b) An annual report of the operation of the Family Court panels shall be filed by the Appellate
Division with the Chief Administrator of the Unified Court System no later than January 31st of
each calendar year.
§ 611.11 Continuity of powers
Nothing contained in this Part shall be construed to limit the powers of the Appellate Division or
the presiding justice thereof or the administrator of the assigned counsel plan otherwise granted
pursuant to law.
§ 611.12 Members of the Departmental Advisory Committee as volunteers
The members of the Departmental Advisory Committee, as volunteers are expressly authorized to
participate in a State-sponsored volunteer program within the meaning of Public Officers Law, §
17(a).
b.
Part 612
Rules to Implement a Criminal Courts Plan
§ 612.13 Appendix A - central screening committee indigent defendants assigned counsel
plan
The Appellate Division, First Judicial Department, in furtherance of its obligation to provide
indigent criminal defendants with competent counsel, approves the bylaws contained herein.
Membership on all assigned counsel panels is a privilege granted to qualified attorneys by the
Appellate Division, First Judicial Department.
BYLAWS
1.
Quorum and Voting.
1.1
A quorum of a majority of the Committee is required for the conduct of business.
1.2
Final action on proposed guidelines, applications and complaints requires a majority vote
of a quorum.
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2.
Application for Certification or Recertification.
2.1
All applications for certification or recertification to the panels shall be addressed to the
Administrator. The provisions of this section shall apply to applications seeking initial
certification or recertification to the panels.
2.2
The Administrator shall examine each application for facial sufficiency. If it is found to be
insufficient, the Administrator shall return the application to the applicant.
2.3
The Administrator shall promptly assign every application not returned pursuant to 2.2 to
the Committee member for his or her review.
2.4
Within sixty days of receiving the application, the assigned committee member shall
contact two-thirds of the required references, at least two in each category (judges, adversaries
and colleagues) and shall recommend in writing, to the Chair, the action to be taken on the
application. A copy of the recommendation shall be submitted to the Administrator. Requests for
extension of the sixty day period shall be made in writing to the Administrator.
2.5
Upon receipt of the assigned committee member's recommendation, the Chair shall accept
the recommendation or refer the application to the Committee for review. When the Chair refers
an application to the Committee, the Chair shall invite the applicant to appear before the
Committee. Upon a review of the assigned committee member's recommendation, the application
and any other relevant material, the Committee shall vote on the application pursuant to § 1.2 of
these bylaws. The Chair or the Committee shall take the following action on an application:
1) Certify the applicant to the panel(s) for which he or she is qualified;
2) Deny certification of the applicant to any of the panels for which he or she is not qualified;
3) Set conditions that the applicant must meet to establish the necessary qualifications for
certification.
2.6
Applicants shall be advised by letter of the determination. In the event the applicant is
denied certification, the letter must specify the reasons therefor.
2.7
The Committee's action is appealable to the presiding justice of the Appellate Division,
First Judicial Department by the submission of a letter requesting review of the Committee's
determination. The presiding justice's review of the Committee's determination is final and non-appealable.
2.8
An applicant denied certification to any panel may reapply for that panel one year after the
date of the letter denying certification unless a shorter time or other conditions are set by the
Chair or the Committee pursuant to § 2.5.
3.
Complaints and Sanctions.
3.1
The Administrator, in consultation with the Chair, shall accept and keep records of written
complaints concerning the competence and conduct of panel attorneys. Complaints made to the
Administrator shall be forwarded to the Chair.
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3.2
The Chair, in consultation with the Administrator, may dismiss complaints. Complaints
not dismissed shall be referred to a committee member designated by the Chair for further
investigation within thirty days of receipt of the complaint.
3.3
Once a complaint has been referred for further investigation, a subcommittee consisting of
the Chair, the Administrator, and two additional committee members shall vote as to whether the
attorney should be suspended. Suspension shall be imposed upon a majority vote of the
subcommittee. The suspension shall continue pending a resolution of the complaint.
3.4
A panel member who is the subject of a complaint shall receive notice of the substance of
the complaint. The notice shall advise the attorney that he or she may respond in writing.
3.5
Investigation by the designated subcommittee member shall be completed within ninety
days. Extension of time to investigate a complaint may be granted by the Chair. Upon the
completion of an investigation, the designated committee member shall make a report, with
findings and recommendations, to the Committee.
3.6
The Committee shall, upon receipt of the report, invite the attorney to appear before the
Committee, and upon having duly considered the attorney's statements and other relevant
submissions, shall take one or more of the following actions, as shall be appropriate:
1) Dismiss the complaint;
2) Adopt the recommendation;
3) Reject the recommendation;
4) Suspend the panel attorney from any or all panels to which the attorney is certified and
impose conditions upon the attorney's restoration to the panel;
5) Recommend the substitution of the panel attorney on some or all of the cases to which the
attorney is currently assigned by notification to the trial court where the cases are pending;
6) Remove the attorney from any or all panels to which the attorney is certified.
3.7
At any time the Committee or subcommittee may vote to transmit the information it has
developed to the District Attorney or the Department Disciplinary Committee.
3.8
The Chair shall promptly notify the attorney in writing of the Committee's action. In the
event the determination imposes a restriction on the attorney's panel membership, the letter shall
set forth the reasons therefor.
3.9
The determination of the Committee is appealable to the presiding justice of the Appellate
Division, First Judicial Department by the submission of a letter requesting review of the
Committee's determination. The presiding justice's review of the Committee's determination is
final and non-appealable. 3.10 Nothing contained in these bylaws limits the authority of the
Appellate Division to suspend or remove an attorney from the panels.
4.
Responsibilities of Committee Members.
4.1
Committee members shall act expeditiously on applications and complaints referred to
them. Any Committee member who fails to take timely action twice during any twelve month
period shall be removed by the Presiding Justice.
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5.
Responsibilities of Officers.
5.1
An executive committee shall be formed, consisting of the Chair, the Vice-chair,
Administrator and three members designated by the Chair. One of the three designees shall serve
as Secretary.
5.2
The executive committee may act in place of the Committee in any matter that requires
action by the Committee during a period in which the Committee is not scheduled to meet for
more than thirty days. Any action taken by the executive committee shall be ratified by the
Committee at its next meeting.
5.3
The Chair may designate subcommittees and may designate committee members to serve
as chairs therefor.
5.4
All officers and executive committee members shall serve in their respective capacities for
three years and may be reappointed by the Appellate Division.
D.
RULES OF THE APPELLATE DIVISION, FIRST DEPARTMENT
Part 623
Mental Health Professionals Panel
§ 623.1 Access to mental health professionals
In custody and visitation, delinquency, persons in need of supervision, child abuse and neglect,
termination of parental rights, family offense, and adoption cases, an evaluation of the parties by
a mental health professional is often necessary to assist the court in reaching an appropriate
decision. To assure that the court and the parties have access to qualified mental health
professionals, a panel of social workers, psychologists and psychiatrists shall be established in the
First and Second Judicial Departments in accordance with this Part and Part 680 of this Title.
§ 623.2 Mental health professionals certification committee
(a) A mental health professionals certification committee shall be established for the First and
Second Judicial Departments.
(b) The committee shall be composed of no fewer than two justices of the Supreme Court, two
judges of the Family Court, two lawyers, two social workers, two psychologists, and two
psychiatrists. Half of the members in each class shall be appointed by the Presiding Justices of the
First and Second Departments of the Appellate Division, respectively, for three-year terms.
Committee members shall be eligible for reappointment for additional terms. The Directors of the
Office of Attorneys for Children for the Appellate Division in the First and Second Judicial
Departments, respectively, or their designees, shall be ex-officio members.
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(c) The members of the committee shall serve as volunteers, authorized to participate in a Statesponsored volunteer program within the meaning of the Public Officers Law, §17.
§ 623.3 Duties of mental health professionals certification committee
Subject to the supervision of the Presiding Justices of the Appellate Division of the First and
Second Judicial Departments, the mental health professionals certification committee shall
establish procedures for:
(a) the appointment of applicants for membership on the panel of mental health professionals;
(b) periodic evaluation of panel members;
(c) training of panel members;
(d) investigating complaints made against panel members; and
(e) removal of mental health professionals from the panel.
§ 623.4 Establishment of mental health professionals panel
(a) Eligibility requirements. A member of the mental health professionals panel shall:
(1) be a social worker, psychologist, or psychiatrist licensed by the State of New York;
(2) complete six hours of introductory training approved by the Presiding Justices of the
Appellate Division of the First and Second Judicial Departments;
(3) demonstrate that he or she has forensic experience, including having testified as an expert
and/or having submitted a clinical report in connection with one or more of the following types of
court proceedings: custody and visitation, delinquency, persons in need of supervision, child
abuse and neglect, termination of parental rights, family offense, and adoption;
(4) maintain professional malpractice insurance; and
(5) meet such additional requirements as shall be established by the mental health professionals
certification committee with the approval of the Presiding Justices of the Appellate Divisions of
the First and Second Judicial Departments.
(b) Application. Licensed social workers, psychologists, and psychiatrists may apply for
membership on the mental health professionals panel for the First and Second Judicial
Departments by completing a questionnaire in the form prescribed by the mental health
professionals certification committee.
(c) Appointments to panel. (1)The mental health professionals committee shall review
applications and identify those mental health professionals who meet the eligibility requirements.
35
(2) The Presiding Justices of the Appellate Division in the First and Second Judicial Departments
shall, by joint order, appoint the members of the mental health professionals panel from among
those social workers, psychologists and psychiatrists recommended by the committee.
(3) Appointments to the panel shall be for a term of three years. Panel members may be
reappointed to successive terms. Any panel member may be removed prior to the expiration of his
or her term by the joint order of the Presiding Justices of the Appellate Divisions of the First and
Second Judicial Departments upon the recommendation of the committee.
§ 623.5 Appointment of mental health professionals from panel
(a) Appointment. A court may appoint a mental health professional or professionals to evaluate
adults and children in any case involving custody and visitation, delinquency, persons in need of
supervision, child abuse and neglect, termination of parental rights, family offense, and adoption
wherein compensation is paid privately or pursuant to Judiciary Law, §35 or County Law, article
18-B. Such appointments shall be from the mental health professionals panel promulgated
pursuant to these rules. A court, upon a finding of good cause, may appoint a mental health
professional who is not a member of the mental health professionals panel. The court's finding
shall be set forth in order of appointment. This section shall not apply to providers of mental
health services pursuant to a governmental contract.
(b) Order of appointment. The court appointing a mental health professional shall issue a written
order setting forth the terms and conditions of the appointment including the method and rate of
compensation and by whom such compensation is to be paid. A copy of the order shall be
provided to the mental health professional and to every party to the case, including the attorney, if
any, for each child.
§ 623.6 Compensation of mental health professionals
(a) The compensation for mental health professionals appointed pursuant to Judiciary Law,§35 or
County Law, article 18-B shall be at rates prescribed by the Chief Administrator of the Courts.
Applications for payment for services rendered pursuant to those sections shall be submitted for
approval to the court that appointed the panel member on forms authorized by the Chief
Administrator of the Courts or by the appropriate local fiscal authority.
(b) The compensation of mental health professionals appointed in cases in which their fees shall
be borne in whole or in part by the parties shall be at rates fixed by the court in accordance with
the charge for such services prevailing in the community and the financial circumstances of the
parties. Such compensation shall not exceed a sum certain to be set forth in the order of
appointment, which sum shall be based on the selected rate and the estimated number of hours
required to perform the necessary services. In the event that a greater expenditure of time is
required than originally estimated, the mental health professional may apply to the court for
additional fees in excess of the sum set forth in the order. The application shall be made by letter,
a copy of which shall be forwarded to the party or parties responsible for the payment of the fee.
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§ 623.7 Training and education
The mental health professionals certification committee shall establish a training and education
program for members of the mental health professionals panel. The program may be established
in cooperation with relevant professional organizations. The committee may make attendance at
training sessions a requirement for continued membership on the panel of mental health
professionals.
§ 623.8 Periodic evaluation of panel members
The mental health professionals certification committee shall establish procedures by which it
shall periodically evaluate the work performed by each member of the panel of mental health
professionals. In conducting its evaluation the committee shall seek information from judges and
other appropriate and knowledgeable persons. The committee shall not recommend for
reappointment to the panel any member whose performance has been determined to be unsatisfactory.
§ 623.9 Recommendation for removal
The Presiding Justices of the Appellate Division of the First and Second Judicial Departments
may, by joint order, remove members of the mental health professionals panel. The mental health
professionals certification committee may, at any time, recommend to the Presiding Justices that
a mental health professional be removed from the panel.
§ 623.10 Annual report of the mental health professionals certification committee
On June 1st of each year the mental health professionals certification committee shall submit to
the Presiding Justices of the Appellate Division in the First and Second Judicial Departments an
annual report containing an evaluation of the operation of the mental health professionals panel
and the training program and any recommendations concerning measures that should be adopted
to improve the performance of the panel and the training program. A copy of that report shall be
forwarded to the Chief Administrator of the Courts.
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IV.
PROGRAM COMPONENTS
OFFICE OF ATTORNEYS FOR CHILDREN
APPELLATE DIVISION, FIRST DEPARTMENT
ADMINISTRATIVE OFFICES
Address
Telephone Numbers
(all numbers are 212 area code)
41 Madison Avenue - 39th Floor
New York, NY 10010
Jane Schreiber, Esq.
Director
340-0514
Caroline Diaz
Voucher/Payment Coordinator
340-0595
Deborah Ramilo
Administrative Assistant
340-0540
Cheng Cheng Gong
Voucher Analyst/Payment Clerk
340-0596
Amy Ostrau
Continuing Legal Education
340-0558
Fax
779-1891
Clerk’s Office/Main Number
27 Madison Avenue
New York, NY 10010
340-0400
38
ASSIGNED COUNSEL PROGRAM
OFFICE TELEPHONE DIRECTORY
Address Telephone Numbers
(all numbers are 212 area code)
253 Broadway - 2nd Floor
New York, NY 10007
676-0066 (main number)
First Department Assignments
Jacqueline Flug 676-0061
Lorraine Watson 676-0081
Second Department Assignments
Barbara DiFiore 676-0055
Jennifer Regis 676-0099
Background Unit
Kate Doherty 676-0418
Payment Department
Mimi Shui - Co-Director 676-0057
Larry Parkins - Co-Director 676-0093
Krisette Alexander 676-1469
Derek Denny 676-0090
Denise Jackson 676-0095
Alberto Guttierrez 676-0093
Deborah Howell 676-0091
Vanessa Jenkins 676-0094
Mark McCullough 676-0086
Angelina Morcelo 676-0063
Any Stanciu 676-0087
Lianne Quinones 676-0059
39
OFFICE OF ATTORNEYS FOR CHILDREN
APPELLATE DIVISION, FIRST DEPARTMENT
DEPARTMENTAL ADVISORY COMMITTEE
Elisa Barnes, Esq.
419 Park Avenue South - 18th Floor
New York, NY 10013
Kenneth Burrows, Esq.
Bender, Burrows & Rosenthal LLP
950 Third Avenue - Suite 3200
New York, NY 10022
Laurence Busching, Esq.
Executive Deputy Commissioner
ACS Division of Youth and Family Justice
110 William Street - 14th Floor
New York, NY 10038
Honorable Douglas Hoffman
New York Family Court
60 Lafayette Street
New York, NY 10013
Susan L. Jacobs, Esq.
The Center for Family Representation
116 John Street - 19th Floor
New York, NY 10038
Glenn Metch-Ampel, Esq.
Deputy Executive Director
Lawyers for Children
110 Lafayette Street
New York, NY 10013
Melinda Oliver, Esq.
910 Grand Concourse - Suite 1C
Bronx, NY 10451
Honorable Ronald E. Richter
Commissioner
New York City Administration for Children’s Services
150 William Street - 18th Floor
New York, NY 10038
40
Rosemary Rivieccio, Esq.
299 Broadway, Suite 1415
New York, NY 10007
Frederic Schneider, Esq.
Gilman & Schneider
40 Wall Street, 28th Floor
New York, NY 10005
Jane Schreiber, Esq.
Director of the Office of Attorneys for Children
Appellate Division, First Department
41 Madison Avenue, 39th Floor
New York, NY 10010
Hon. Fernando H. Silva
Bronx County Family Court
900 Sheridan Avenue - 9th Floor
Bronx, NY 10451
Honorable Gloria Sosa-Lintner
New York County Family Court
60 Lafayette Street
New York, NY 10013
Karen Steinberg, Esq.
31 East 32nd Street - Suite 300
New York, NY 10016
Gilbert Taylor, Esq.
Deputy Commissioner Division of Family Legal Services
New York City Administration for Children’s Services
150 William Street - 15th Floor
New York, NY 10038
Marcia Werchol, M.D.
Senior Director
Family Court Mental Health Services
60 Lafayette Street - 6th Floor
New York, NY 10013
Hon. Amanda White
Kings Family Court
330 Jay Street
Brooklyn, NY 11201
41
V.
ADMINISTRATIVE POLICIES AND PROCEDURES
A.
General Requirements for All Applicants to the Panel of Attorneys for Children
Click here to download Application
Attorneys apply to serve on the family court trial, supreme and appellate panels by completing an
application form and submitting references [three from judges, two from opposing counsel and
two additional references from other attorneys] and writing samples to the Office of Attorneys for
Children. Applicants must be in good standing, admitted to the bar for at least three years, and
committed to representing indigent parents and children in family and supreme court. Applicants
must be highly competent and demonstrate a familiarity with an area of family law, including
child protective proceedings [child abuse and neglect, extensions of placement, foster care
review, permanency hearings and termination of parental rights, adoption], juvenile delinquency,
PINS, paternity, child support, custody and visitation and family offenses. Applicants who are not
experienced in the full range of proceedings may be partially certified and authorized to accept
assignments only in their areas of expertise.
Once an application is complete and all of the supporting documentation received, it is forwarded
to a member of the Departmental Advisory Committee, who contacts the applicant’s references,
conducts an interview, reviews the written submissions and submits a recommendation to the full
Committee. The full Committee then determines whether the applicant is qualified for panel
membership.
An attorney who is partially certified may apply for full certification when they have gained
experience and competence in the full range of proceedings. This may be done through second
seating, attendance at training programs, co-counseling with senior experienced counsel and
representation on privately retained matters.
When the partially certified attorney believes they are ready, they may submit an affirmation
seeking full certification. The affirmation must describe in detail the nature of the cases on which
the attorney worked, or observed, the substance of the work done and the case disposition. The
affirmation should provide sufficient information to enable the Committee to understand what the
partially certified attorney learned from the case. For example, rather than simply state that he or
she watched a fact-finding hearing, it should indicate exactly what was observed, e.g., in this
neglect case based on allegations of parental drug use, I helped senior counsel prepare for and
then observed the cross-examination of the agency caseworker to establish that the parent was
regularly participating in a drug treatment program. A detailed description of training programs
attended should also be included.
Upon receipt of the affirmation, the candidate’s qualifications for panel service are re-evaluated
by the Committee. The Committee will determine whether another interview will be required,
whether additional references are needed and, ultimately, whether the applicant should be fully
certified or deferred until such time that they have received additional experience.
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Service on the Panel of Attorneys for Children is a privilege, not a right, and the final
determination of qualification for panel membership is at the discretion of the Presiding Justice of
the Appellate Division, First Department.
B.
General Requirements for all Applicants for Recertification
Click HERE to Download Recertification Application
RECERTIFICATION FOR THE PANEL OF ATTORNEYS FOR CHILDREN
Type or print answers to all questions and attach your answers to the application along with the
requested documents. You must sign the affirmation as well as the consent and authorization
form.
If we do not receive your application by the recertification deadline, it will be assumed that you
no longer wish to serve on the panel and your name will be removed from the roster and the
Courts will be notified that you may no longer accept assignments.
When the review process is underway, we may request attorneys to bring files to our office.
In addition to the application, Appellate Panel members must complete the “Additional
Questions” at the end of the application.
C.
COMPENSATION AND REIMBURSEMENT POLICIES
a.
Panel Membership Required
An attorney must be a member of the Appellate Division First Department’s Panel of Attorneys
for Children to be compensated by this office at state expense.
b.
Compensation Rates
1.
The compensation rate for both trial and appellate court proceedings is $75 per hour for
both in-court and out-of-court time.
2.
Compensation Rates in Excess of the Statutory Limits
Claims for compensation in excess of the statutory limits require an affirmation of “extraordinary
circumstances.” The threshold for documenting “extraordinary circumstances” is $4,400 for
Attorney for the Child compensation claims and $1,000 for expenses of representation. The
affirmation should set forth the specifics of the “extraordinary circumstances” that required the
expenditure of time. The following, which must be described in detail, are among the factors
which may be considered by the court in determining whether “extraordinary circumstances”
exist justifying a fee in excess of statutory limits: unusually complex factual or legal issues;
novel issues of law requiring extensive legal research; lengthy trial or other in-court proceedings
which alone raise the compensation claim above statutory limits. 22 NYCRR 127.2 will continue
to govern claims for compensation in excess of the statutory limits.
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c.
Compensation Guidelines
1.
In-Court and Out-of-Court Time
a) In-court time is time spent at court facilities in the presence of the judge, either in the
courtroom or in chambers, on a matter appearing on the court’s calendar for that day.
b) In-court time includes time spent in a court-ordered conference at court facilities in
conjunction with an appearance, whether or not the judge is present.
c) All other time expended in representing the child client, including time spent at court
facilities for purposes other than an appearance before a judge, e.g., reviewing files,
meeting with client, is out-of-court time.
2.
Representation in Collateral Matters
a) An attorney for the child may be compensated for representation of a client in a legal or
administrative matter collateral to the court proceeding for which the attorney for the child
was assigned when:
i. The collateral matter arises from the same circumstances as the assigned court
proceeding;
ii. Representation by the attorney for the child in the collateral matter is required to
assure the most favorable outcome for the client in the assigned court proceeding.
3.
Double-Billing Prohibited
Double-billing is the practice of rendering legal services on multiple cases in a given period, and
then requesting payment for the entire period on the voucher for each case. For example, waiting
at court one hour for two cases to be called, and then requesting payment for one hour for each
case, would be double-billing.
4.
Expenses of Representation
The Program will pay reasonable expenses of representation including out-of-pocket expenses
incurred on behalf of the client. Office overhead, however, will not be reimbursed. Accordingly,
the cost of computerized legal research, local telephone calls and facsimile transmissions,
considered “office overhead,” are not reimbursable. Long distance telephone and facsimile
charges will, however, be considered for reimbursement with appropriate documentation.
Complete documentation, including all receipts and an itemization of all expenses is required in
order to reimburse attorneys for expenditures. Legible receipts in the form of canceled checks, or
other documents that indicate that the bill was paid, must be submitted with the requests for
payment.
Faxes: only long distance facsimile transmissions may be reimbursed. A copy of the paid bill
must be submitted.
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Telephone Charges: only long distance telephone charges may be reimbursed. A copy of the
telephone bill must be submitted.
Photocopying: 15 cents per copy limit for copies produced outside of law office. The number of
copies must be indicated and when payment is sought for 50 pages or more, a receipt must be
submitted.
Postage: Federal Express, certified mail, etc., may be reimbursed. Receipts must be submitted.
Witness Fees & Process Service: May be reimbursed. A copy of the paid bill or the canceled
check must be submitted.
Travel Expenses:
- mileage: As of 7/1/11, the State will reimburse attorneys $.555 per mile for mileage
incurred traveling to or from a visit to a client, at a correctional or residential facility.
From 1/1/11 to 7/1/11, the rate was $.51 per mile. From 7/1/08 to 1/1/11, the rate was
$.585 per mile. Indicate number of miles traveled. Public transportation costs incurred to
or from a visit to a client may be reimbursed, e.g., to the home or residential facility;
-
subway/bus fare: reimbursable if Metro cards are given to a client when released from
detention or after Intake;
-
tolls: receipt required;
-
time spent traveling to and from court is not compensable.
Transcripts: are not paid on the web-voucher. Court reporters bill the Office on the “State of New
York Standard Voucher” together with the “New York State Family Court Minute Order Form
and Receipts.”
5.
Time Records
Panel members are expected to maintain case files containing, among other things,
contemporaneous time records for each of their clients separate from their bills. These records
should include a daily log or diary which records how much time was spent working on that case
that day, what work was performed and where the work was performed. Time records must
minimally include the date and time of the activity, client’s name, actual amount of time
expended and a description of the work performed.
All vouchers are subject to audit before and after payment. The time spent opening and closing a
file, and completing a voucher is not compensable.
d.
Voucher Preparation
1.
Submission of Web-Vouchers
To receive compensation for legal services to a client, Attorneys for the Child must file a webvoucher. For questions and/or problems relating to the web-voucher, Panel members should
contact Caroline Diaz at 212.340.0595 or [email protected]
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Please prepare a web-based voucher along with any supporting documentation. The voucher (and
all Assigned Counsel vouchers) must bear the original signature of the Attorney for the Child
and the judge who presided over the case. The Attorneys for the Child should retain a copy of
any vouchers and supporting documentation submitted.
When submitting a voucher for services rendered on an appeal, you must include a copy of your
brief together with copies of all motion papers. Please write “APPEAL” on the top of the
voucher.
A supplemental voucher may be filed when additional legal services are required after the
conclusion of a proceeding, such as monitoring implementation of the dispositional order.
The voucher should be submitted at the completion of the case. In the event special
circumstances exist that you believe justify the submission of an interim voucher, you must
obtain the permission of the Director.
2.
Time Period for Submission
The voucher should be submitted within 45 days of the date of the disposition of the case. If a
warrant is issued, and there is no return within 30 days, you should submit the voucher within 45
days after the expiration of the 30-day period. Vouchers more than 45 days old must be
accompanied by an affidavit explaining the reason for the delay.
3.
Family Court Appeals
Attorneys submitting a voucher for services rendered on an appeal must use the web-based
voucher. Be sure to include the order of assignment, copies of all briefs and motion papers filed
with the courts as well as copies of all court orders rendered in the case and receipts for expenses
incurred. Please write “APPEAL” at the top of the voucher form.
An appellate voucher should not be submitted before the Court has rendered a final decision in
the case and, in the event of an adverse judgment, a motion for leave to appeal to the Court of
Appeals has been filed. Interim payments will not be considered except in exceptional
circumstances. In the event that work must be done following submission of a final voucher, a
supplementary voucher may be submitted, e.g., to reflect work done on behalf of a respondent in
answering appellant’s motion to seek leave to appeal.
Work done on assigned appeals for adult litigants should be billed to the Assigned Counsel Plan,
on their forms for that purpose, and accompanied by an hourly “activity sheet” in which you
detail the date, hours, and nature of tasks performed. Vouchers for adult litigants should be
mailed to the Assigned Counsel Plan, 253 Broadway - 2nd Floor, New York, New York 10007.
The vouchers will be logged in and sent to the Clerk of the Court, Appellate Division, First
Department, 27 Madison Avenue, New York, New York 10010. The voucher will be reviewed
by the Presiding Justice, and forwarded to the Assigned Counsel Plan for payment by the City of
New York.
Work done on assigned appeals for juvenile clients should be billed to the Office of Attorneys for
Children on the web-based voucher and mailed, for review and payment by New York State to:
Office of Attorneys for Children, 41 Madison Avenue - 39th Floor, New York, NY 10010.
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Documentary proof of all expenses should accompany each voucher where reimbursement for
expenses is sought. Examples of reimbursable expenses are copying done outside of law office
and mailing costs and long-distance telephone calls.
You are responsible for submitting all appropriate forms and documentation in the case. Failure
to submit a necessary document, submitting a voucher on an inappropriate form, or misdirecting a
voucher for an adult litigant to the Office of Attorneys for Children, or for a child to the Assigned
Counsel Plan, will result in delays in payment. A request to notify you “if there is anything
wrong with the voucher” cannot substitute for a proper initial submission.
4. Who Pays and Where Do Vouchers Get Sent?
Payment for people determined by the Court to be unable to afford counsel:
Representation of Children:
Vouchers for representation of a child in any Court (Family, Supreme, Integrated Domestic
Violence) are to be sent to the Office of Attorneys for Children.
Representation of Adults:
In Family Court - Vouchers are to be sent to the Assigned Counsel Plan for the City of New York.
In Integrated Domestic Violence Court - Vouchers are to be sent to the Assigned Counsel Plan for
the City of New York.
Assigned Counsel Program is located at 253 Broadway, Suite 200, New York, NY 10007.
Where counsel is assigned pursuant to Judiciary Law 35(8) to represent an adult in Supreme
Court, the 35(8) voucher must be signed by the Judge and submitted to the Appellate Division,
First Department, Office of Attorneys for Children, 41 Madison Avenue, 39th Floor, New York,
NY 10010.
Appeals:
All vouchers pertaining to Family Court matters should be attached to briefs submitted to the
Appellate Division to the attention of Les Dickinson. Vouchers for the representation of children
will be paid by the Office of Attorneys for Children, and after approval by the Presiding Justice,
vouchers for the representation of adults will be forwarded for payment to the Assigned Counsel
Plan for the City.
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Intake Voucher Preparation:
1.
2.
3.
4.
5.
6.
7.
Prepare a State intake voucher in the web and print
Prepare a handwritten City voucher
Submit both vouchers to the Judge for signature
Make copies of both vouchers
Attach a copy of the City voucher to the original State voucher
Attach a copy of the State voucher to the original City voucher
Mail all vouchers to the Office of Attorneys for Children.
Vouchers will be reviewed by the Office of Attorneys for Children. We will process the State
voucher and forward the City voucher to the Assigned Counsel Plan.
D.
EXPERT SERVICES
1.
Compensation and Reimbursement Guidelines For Experts
a.
Professional Services where the Parties are Unable to Afford the Cost
Where the parties are represented by members of the Assigned Counsel Plan and the children are
represented by a member of the Panel, the cost of experts, investigators and interpreters in the
family and supreme courts is regulated by statute. In these cases, New York State, through the
Office of Attorneys for Children pays that portion of the fee which is attributable to the children
and New York City’s Assigned Counsel Plan pays that portion of the fee attributable to the
adults.1
In such cases, the professional must preliminarily inspect the court order authorizing services and
apportion the cost according to that order. For example, in a case where the court has ordered the
evaluation of the mother, the father and one child, the City would pay 2/3s of the total and the
State would pay the remaining 1/3 portion. Similarly, if there are two adults and three children,
the City pays two-fifths [40%] for the adults, and the State pays three-fifths [60%] for the
children.
b.
Costs Apportioned in Accordance with the Number of Parties Evaluated
1
If the parties are financially unable to obtain the cost of investigative, expert or other services
that the court finds necessary, it may order them, whether counsel is assigned in accordance with
the plan or not. Accordingly, a court order may direct the City and/or State to pay for the cost of
expert services even though the parties are appearing without counsel or with privately retained
counsel. In such cases, however, the order authorizing services should explicitly state that although
the parties have private counsel, they are nevertheless, financially unable to pay the expert’s costs.
48
There are instances where the number of parties being evaluated is not the same as the number of
parties involved in the litigation. Under these circumstances, it is the number of parties evaluated
that determines how the cost is apportioned. Thus, in a case where two parents are litigating the
custody of their three children, the court may want all five of them evaluated, as well two
grandparents who are living in one of the parents’ homes. In such a case, the order directing the
examination will include the names of all individuals to be evaluated and the costs should be
apportioned 4/7s to the City and 3/7s to the State.
c.
Professional Services where the Parties are able to Afford Some of the Costs In cases
involving parties who are financially able to afford some or all of the cost of expert services, the
order should name the parties, direct that they will bear their proportionate share and indicate the
extent to which each of them will also bear the cost of their child’s evaluation. For example, if
the father in a custody case with one child has been directed to pay for his part of a $900 fee, he
will be responsible for his 1/3 share [$300], the State will pay the 1/3 portion for the child [$300],
and the City will pay the remaining 1/3 [$300] for the mother’s costs. If the court determines that
the father is financially able, he will be directed to pay the cost of his own share as well as the
child’s share, with the City responsible for the remaining 1/3 portion. In such a case, the
professional will have to collect the portion of the fee payable by the father directly from him.
d.
Professional Services where the Child is Represented by a Legal Services
Organization
There are instances where the children (or one of the adult parties) are represented by counsel
who is neither a panel member nor a privately retained lawyer, for example, the children may be
represented by the Juvenile Rights Division of the Legal Aid Society, Lawyers for Children, or
the Children’s Law Center, which receive their own government funding for experts. In such
cases, the City will pay that portion of the cost attributable to the adults and the legal services
provider will be responsible for the portion of the cost attributable to the children. Where, for
example, a case involves two adults represented by Assigned Counsel, one child represented by
the Juvenile Rights Division and one child represented by a member of the panel, the cost should
be apportioned 50% percent to the City, 25% to the Juvenile Rights Division and 25% to the
State.
e.
Fees in Excess of $1,000 Require Documentation of “Extraordinary Circumstances”
The statute provides that only in “extraordinary circumstances” may the court provide for
compensation in excess of $1,000. Accordingly, vouchers submitted for fees in excess of that
amount must be supported by an affidavit from the expert or the attorney who retained the expert,
establishing “extraordinary circumstances.”
f.
Addresses and Telephone Numbers
The cost of the children’s fee must be billed on State voucher form JC - 2020. The cost of the
adult’s fee must be billed on the City form entitled “Assigned Counsel Plan 722-c ServicesExpert Voucher.” The State voucher must be sent to the Office of Attorneys for Children,
Appellate Division First Department, 41 Madison Avenue, 39th Floor New York, NY 10010
[212.340.0597] and the City voucher must be sent to the Assigned Counsel Plan, 253 Broadway,
2nd Floor, New York, NY 10007. State voucher forms can be obtained from the Family Court
Clerk’s Office or from the Office for Attorneys for Children at the Appellate Division at the
49
address/telephone number listed above. Assigned Counsel Plan vouchers and activity forms, can
be obtained from the Family Court Clerk’s Office or from the Assigned Counsel Plan office at the
address/ telephone number listed above. Click HERE to be directed to their webpage. City
expert vouchers must be notarized.
2.
Fee Guidelines for Expert Services
The Chief Administrator has adopted the following hourly rates as guidelines for payment of nonlawyer professionals under Judiciary Law § 35 and County Law § 722-c:
Physician/Pathologist
Psychiatrist
Certified Psychologist
Certified Social Worker
Licensed Investigator
Forensic Experts:
Arson Investigators
Ballistics
Fingerprints
Handwriting
Polygraph
Photography
Scientific Experts:
Chemists
Pharmacologists
Toxicologists, etc.
Interpreters/Translators
Accountants
Accident Reconstructionists
(M.D.)
$200.00
125.00
90.00
45.00
32.00
60.00 (or flat fee)
75.00 - 100.00
30.00 - 40.00
75.00 - 100.00
100.00
When an Attorney for the Child anticipates that the cost of an expert will exceed the sum of
$1,000 (“extraordinary circumstances”) he or she must obtain prior approval of the court where
the matter is pending. In order to obtain such approval, the attorney or the expert must submit an
affidavit of “extraordinary circumstances
The Program is not authorized to pay for expert services for services unrelated to the client’s
representation, such as treatment or counseling.
The attorney should not pay the expert directly.
3.
Submission of Expert Vouchers - JC-2020
Upon obtaining oral permission from the trial court judge for the appointment of an interpreter,
social worker, investigator, psychiatrist or psychologist and the assent of the expert, orders
pursuant to County Law § 722-c and Judiciary Law § 35, should be prepared by the expert or the
attorney who retained the expert, including the name and full address of the proposed expert, and
submitted to the court ex parte.
The expert should complete the following sections only:
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Box 3: Payee ID - Social Security or Federal Tax ID number.
Box 4: Payee Name block - Insert the name, address and telephone number of the expert.
Box 5: Ref/Inv. No. - Enter the full name of the client for whom services were rendered. Check
“other civil proceeding” and indicate the appropriate proceeding code and the “Jurisdiction of the
Court.” Indicate whether the services were provided for a case at the trial level (“original” for
Family, Supreme and Surrogate’s court cases) or at the appellate level (Appellate Division, First
Department).
Box 7: Required Billing Information - Fill in A-C with type of service rendered, Judge’s name,
and case docket number.
Box 8: Summary of Services Provided.: Indicate the name of the Attorneys for the Child/Parent
on the case and the number of adults and children for which services were rendered. All of the
work done on the case should be described in detail on the “Assigned Counsel Plan, Expert Case
Worksheet, Family Court.” The respondent’s name, the docket number, the date of assignment
(the date the judge signed the order of assignment), the name of the payee (expert), the payee’s
(expert’s) field of specialization and the date of disposition (the last day that the case was on
before the judge) must be listed. Under “Activity Log,” each section must be completed. The
date that the work was done, the start and finish time, the total number of hours spent and a
description of the activity must be indicated.
Box 9: Certification: Signature of the expert authorized to receive payment and date voucher is
prepared.
Box 10: Court Use - For the signature of the judge who presided over the case, the date, and the
county of origin.
E.
OBTAINING TRANSCRIPTS
If requesting transcripts from a proceeding that is not before the Appellate Division, counsel
should obtain a form entitled “New York State Family Court Minute Order Form and Receipts”
and, if representing an adult, another form entitled “Order Authorizing Services Other than
Counsel under Article 18-b of the County Law, § 722-c.” Both forms can be obtained from the
Family Court Clerk’s Office.
Counsel should complete the top of both forms, indicating on the “New York State Family Court
Minute Order Form and Receipts,” the number of copies requested and the date on which counsel
wishes to receive the completed transcripts. The form or forms should then be submitted to the
trial judge for signature. If the judge signs the form(s), the judge may retain a copy for the file
and counsel should deliver the remaining copies to the Supervising Court Reporter's Office.
If transcripts are being requested for a proceeding that is before the Appellate Division, counsel
should skip the above steps and, instead, attach a copy of the Appellate Division's “Order of
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Assignment” to the Supervising Court Reporter's Office. After submission of the appropriate
forms, the Supervising Court Reporter will direct the individual court reporters to transcribe the
minutes. Shortly thereafter, counsel will receive a list of the dates the proceeding was on before
the Family Court and the name of the court reporter transcribing the proceeding for each date.
If the original request for transcripts involved a proceeding pending before the trial court, then the
one original transcript when complete, will be provided directly to counsel. If the original request
for transcripts involved a case pending before the Appellate Division, then the original will be
sent to the Clerk’s Office where it will be forwarded to the Appellate Division. A copy will then
be provided to counsel.
After the minutes are completed and sent to or picked up by counsel, counsel will be asked to sign
the “New York State Family Court Minute Order Form and Receipts” in the space indicated. The
court reporter will then forward the “New York State Family Court Minute Order Form and
Receipts” and, if the case involves the representation of an adult, the “Order Authorizing Services
Other than Counsel under Article 18-b of the County Law, § 722-c,” to the Office of Attorneys
for Children or the Assigned Counsel Plan for payment.
Obtaining Transcripts of Mechanically Recorded Proceedings
If counsel is seeking transcripts from a proceeding that was mechanically recorded, counsel must
again complete the form “New York State Family Court Minute Order Form and Receipts” and, if
representing an adult, an “Order Authorizing Services Other than Counsel under Article 18-b of
the County Law, § 722-c” and submit the forms to the trial judge for signature. When the judge
signs the forms, counsel must submit the signed forms to the Family Court Clerk's Office. Again,
if the transcript is sought in connection with an appeal, counsel need only submit the Appellate
Division’s “Order of Assignment” to the Clerk's Office. If the case involves the representation of
a juvenile, counsel must also submit a “State of New York Standard Voucher.”
The Clerk's Office will process the forms, assemble the necessary tapes and send them to a
private service for transcription. The transcription service will forward the completed transcripts
to the Family Court Clerk's Office where counsel will obtain them and be asked to sign where
indicated. The service will then bill the Assigned Counsel Plan or the Office of Attorneys for
Children directly.
F.
TRAINING AND EDUCATION
NEW YORK CODE, RULES AND REGULATIONS
Part 1500
a.
Mandatory Continuing Legal Education Program for Attorneys in the State of New
York
52
§ 1500.1 Scope
There shall be a mandatory continuing legal education program in the State of New York
(hereinafter program) which shall include a transitional legal education program for newly
admitted attorneys, as set forth in subpart B of this Part, and a legal education program for all
other admitted attorneys, as set forth in subpart C of this Part. A Continuing Legal Education
Board shall accredit and oversee, as set forth in this Subpart, the courses, programs and other
educational activities that will satisfy the requirements of the program.
§ 1500.2 Definitions
(a) Accredited course or program is a continuing legal education course or program that has met
the standards set forth in § 1500.4(b) of this Part and has received advance accreditation approval
by the Continuing Legal Education Board.
(b) Accredited provider is a person or entity whose continuing legal education program has been
accredited by the Continuing Legal Education Board, and who has been certified by the
Continuing Legal Education Board as an accredited provider of continuing legal education
courses and programs in accordance with § 1500.4 (c)of this Part.
(c) Ethics and professionalism may include, among other things, the following: the norms relating
to lawyers' professional obligations to clients (including the obligation to provide legal assistance
to those in need, confidentiality, competence, conflicts of interest, the allocation of decisionmaking, and zealous advocacy and its limits); the norms relating to lawyers' professional relations
with prospective clients, courts and other legal institutions, and third parties (including the
lawyers' fiduciary, accounting and recordkeeping obligations when entrusted with law client and
escrow monies, as well as the norms relating to civility); the sources of lawyers' professional
obligations (including disciplinary rules, judicial decisions, and relevant constitutional and
statutory provisions); recognition and resolution of ethical dilemmas; the mechanisms for
enforcing professional norms; substance abuse control; and professional values (including
professional development, improving the profession, and the promotion of fairness, justice and morality).
(d) Skills must relate to the practice of law and may include, among other things, problem
solving, legal analysis and reasoning, legal research and writing, drafting documents, factual
investigation (as taught in courses on areas of professional practice), communication, counseling,
negotiation, mediation, arbitration, organization and trial advocacy.
(e) Law practice management must relate to the practice of law and may encompass, among other
things, office management, applications of technology, State and Federal court procedures, stress
management, management of legal work and avoiding malpractice and litigation.
(f) Areas of professional practice may include, among other things, corporations, wills/trusts,
elder law, estate planning/administration, real estate, commercial law, civil litigation, criminal
litigation, family law, labor and employment law, administrative law, securities, tort/insurance
practice, bankruptcy, taxation, compensation, intellectual property, municipal law, landlord/
tenant, environmental law, entertainment law, international law, social security and other
government benefits, and alternative dispute resolution procedures.
53
(g) Regulations and guidelines refers to the regulations and guidelines of the Continuing Legal
Education Board set forth in Part 7500 of this Title.
§ 1500.3 The Continuing Legal Education Board
(a) The Continuing Legal Education Board. The Continuing Legal Education Board (CLE board)
is hereby established.
(b) Board composition. The CLE board shall consist of 16 resident members of the bench and bar.
Three members shall be chosen by each of the presiding justices of the Appellate Divisions, and
four members shall be chosen by the Chief Judge of the State of New York. The Chief Judge shall
designate the chair. Board members shall serve at the pleasure of the Administrative Board of the
Courts.
(c) Quorum. Nine members shall constitute a quorum of the entire CLE board.
(d) Term of service. The term of board members shall be three years. Board members shall be
appointed for no more than one three-year term.
(e) Duties and responsibilities. The CLE board is authorized to: accredit providers of courses,
programs, and other educational activities that will satisfy the requirements of the program;
determine the number of credit hours for which continuing legal education credit will be given for
particular courses or programs; adopt or repeal regulations and forms consistent with these rules;
examine course materials and the qualifications of continuing legal education instructors; consult
and appoint committees in furtherance of its official duties as necessary; foster and encourage the
offering of accredited courses and programs, particularly in geographically isolated regions; and
report annually on its activities to the Chief Judge, the presiding justices of the Appellate
Divisions and the Chief Administrator of the Courts.
(f) Expenses. Members of the CLE board shall serve without compensation but shall be
reimbursed for their reasonable, actual and direct expenses incurred in furtherance of their official
duties.
(g) Confidentiality. The files, records and proceedings of the CLE board, as they relate to an
attorney's satisfying the requirements of this Part, shall be confidential and shall not be disclosed
except in furtherance of the duties of the board or upon the request of the attorney affected, or as
they may be introduced in evidence or otherwise produced in proceedings implementing this Part.
(h) Appeal of determinations. Any person or organization aggrieved by a determination pursuant
to this Part may seek administrative review of that determination pursuant to the regulations and
guidelines adopted by the CLE board.
§ 1500.4 Accreditation
(a) Procedure. Unless a provider has been granted accredited provider status pursuant to
subdivision ( c) of this section, accreditation of continuing legal education courses or programs
54
must be sought at least 60 days prior to the occurrence of the course or program, except in
extenuating circumstances and with prior permission of the CLE board.
(b) Standards. Continuing legal education courses or programs to be accredited shall comply with
the following guidelines:
(1) One hour of continuing legal education credit shall consist of at least 50 minutes of
instruction, exclusive of introductory remarks, meals, breaks, or other non-educational activities.
(2) The course or program must have significant intellectual or practical content and its primary
objective must be to increase the professional legal competency of the attorney in ethics and
professionalism, skills, practice management and/or areas of professional practice.
(3) The course or program shall be taught by instructors with expertise in the subject matter being
taught and shall be specifically tailored to attorneys.
(4) The faculty of the course or program shall include at least one attorney in good standing, who
shall actively participate in the course or program.
(5) The course or program shall not be taught by a disbarred attorney, whether the disbarred
attorney is the sole presenter or one of several instructors.
(6) The continuing legal education course or program must be offered by a provider that has
substantial, recent experience in offering continuing legal education to attorneys, or that has
demonstrated an ability to effectively organize and present continuing legal education to
attorneys.
(7) Thorough, high quality, readable and carefully pre-written materials must be made available
to all participants at or before the time the course or program is presented, unless the absence of
materials, or the provision of such materials shortly after the course or program, is pre-approved
by the CLE board. Written materials shall satisfy the criteria set forth in the regulations and
guidelines.
(8) The cost of continuing legal education courses or programs to the participating attorney shall
be reasonable.
(9) Providers must have a financial hardship policy as provided in the regulations and guidelines.
(10) The course or program must be conducted in a physical setting that is comfortable and
conducive to learning.
(11) At the conclusion of the course or program, each participant must be given the opportunity to
complete an evaluation questionnaire addressing the quality, effectiveness and usefulness of the
particular course or program. A summary of the results of the survey(s) must be submitted to the
CLE board at the end of the calendar year in which the course or program was given. Providers
must maintain the questionnaires for a period of four years following the course or program.
(12) Providers of continuing legal education courses or programs shall provide a certificate of
attendance to all persons completing the continuing legal education course or program.
55
(13) Providers of continuing legal education courses or programs must maintain an official
attendance list of participants in the program, and the time, date, location, title, speaker(s) and
amount of approved CLE credit for each course or program, for at least four years after the
completion date.
(14) Programs that satisfy these standards and that cross academic lines, such as accounting-tax
seminars, may be considered for approval by the CLE board.
(c) Accredited provider status.
(1) Procedure. Application may be made for accredited provider status by submitting the
appropriate forms and materials to the CLE board pursuant to CLE board regulations and
guidelines.
(2) Requirements. Accredited provider status may be granted at the discretion of the CLE board
to applicants satisfying the requirements of this section and, as well, the following requirements:
(I) the provider has presented, within the prior three years, separate programs of continuing legal
education that meet the standards set forth in subdivision (b) of this section and the regulations
and guidelines of the CLE board; or
(ii) the provider has demonstrated to the board that its CLE activities have consistently met the
standards set forth in subdivision (b) of this section and the regulations and guidelines of the CLE
board.
Providers that meet the foregoing requirements may include bar associations, law schools, law
firms and legal departments (including corporate, non-profit and municipal and State law
departments).
(3) Duration of accredited provider status. Once a provider has been granted accredited provider
status, the continuing legal education courses or programs sponsored by that provider are
presumptively approved for credit for a period of three years from the date of the grant of such
status.
(4) Accredited provider reports. Providers granted accredited provider status shall file a written
report with the CLE board each year at a time fixed by the board. The report shall describe the
continuing legal education activities conducted during the prior 12 months and shall be in such
detail and form as required by the board and by the regulations and guidelines. The accredited
status of a provider may be continued by filing an application for renewal with the board before
the end of the provider's accreditation period.
(5) Renewal of accredited provider status. Renewal of accredited provider status shall be for
periods of three years. The CLE board shall determine if there are pending or past breaches of
these rules or regulations and guidelines, and the board, in its discretion, may condition renewal
upon the provider meeting additional requirements specified by the board.
(i) If an application for renewal is timely filed, the accredited status shall continue until the board
acts on the application.
56
(ii) If an application for renewal is not filed before the end of the provider's accreditation period,
the provider's accredited status will terminate at the end of the period. Any application received
thereafter shall be considered by the board as an initial application for accredited provider status.
(6) Revocation. Accredited provider status may be revoked by the board if the reporting
requirements of these rules and regulations and guidelines are not met or, if upon review of the
provider's performance, the CLE board determines that the content of the course or program
materials, the quality of the CLE activities, or the provider' s performance does not meet the
standards set forth in these rules and regulations and guidelines. In such event, the CLE board
shall send the provider a 30-day notice of revocation by first class mail. The provider may request
a review of such revocation, and the CLE board shall determine the request within 90 days of
receipt of such request. The decision of the CLE board shall be final after such review.
(d) Provider list. A list of accredited providers whose continuing legal education courses or
activities have been presumptively approved for credit shall be compiled and published
periodically by the CLE board. Lists shall be made available at each of the appellate divisions and
at such other offices and electronic sites as the Chief Administrator of the Courts shall determine.
(e) Announcement. Providers who have received approval for continuing legal education courses
and programs may indicate that their course or program has received CLE board approval as follows:
"This (transitional) continuing legal education course (or program) has been approved in
accordance with the requirements of the Continuing Legal Education Board for a maximum of
_____ credit hours, of which _____ credit hours can be applied toward the __________
requirement, and _____ credit hours can be applied toward the __________ requirement."
Where a program or segment of a program might reasonably be used to satisfy more than one
category of instruction, e.g., either ethics or areas of professional practice, the approved provider
may so indicate, but must state that duplicate credit for the same hour of instruction is not
permitted; an election must be made by the attendee, and each hour may be counted as satisfying
only one category of instruction. The following language may be used:
and an aggregate of _____ credit hours can be applied toward the __________ requirement or the
__________ requirement.
§ 1500.5 Waivers, modifications and exemptions
(a) Waivers and modifications. The continuing legal education board may, in individual cases
involving undue hardship or extenuating circumstances, grant waivers and modifications of
program requirements to attorneys, upon written request, in accordance with the regulations and
guidelines established by the CLE board and this Part.
(b) Exemptions. The following persons shall be exempt from the requirements of New York's
continuing legal education program:
(1) subject to the requirements in §§ 1500.12(f) and 1500.22(n) of this Part, attorneys who do not
practice law in New York. Attorneys practice law pursuant to this section if, during the reporting
period, they give legal advice or counsel to, or provide legal representation for, a particular body
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or individual in a particular situation in either the public or private sector. The practice of law
does not include the performance of judicial or quasi-judicial (e.g., administrative law judge,
hearing officer) functions;
(2) full-time active members of the United States Armed Forces and members of the military
service of the State serving on active duty;
(3) attorneys with offices outside of New York who are temporarily admitted to practice in a
court within New York for a case or proceeding; and
(4) attorneys who certify that they are retired from the practice of law pursuant to § 468-a of the
Judiciary Law.
b.
Mandatory Continuing Legal Education for Newly Admitted Attorneys
§ 1500.10 Application
(a) The requirements of this subpart shall apply to all newly admitted attorneys, who are not
exempt from these requirements pursuant to § 1500.5(b) of this Part, during the first two years
after their admission to the Bar of the State of New York.
(b) A newly admitted attorney is an attorney who has successfully passed the New York State Bar
examination administered by the State Board of Law Examiners and who becomes duly admitted
to the practice of law in New York after October 1, 1997.
(c) Attorneys who have been engaged in the practice of law in another state, the District of
Columbia, any territory of the United States or any foreign jurisdiction, for at least five of the
seven years immediately preceding admission to the New York Bar, shall not be deemed newly
admitted attorneys for the purposes of this subpart, and shall be required to comply with the
requirements of subpart C of this Part to the extent they are applicable.
§ 1500.11 Statement of purpose
Mandatory continuing legal education for newly admitted attorneys in the State of New York is a
transitional continuing legal education program designed to help recent graduates and newly
admitted attorneys become competent to deliver legal services at an acceptable level of quality as
they enter practice and assume primary client service responsibilities. The program seeks to help
the newly admitted attorney establish a foundation in certain practical skills, techniques and
procedures, which are and can be essential to the practice of law, but may not have been
adequately addressed in law school. It includes courses targeting ethics and professionalism,
skills, practice management and areas of professional practice.
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§ 1500.12 Minimum requirements
(a) Credit hours. Each newly admitted attorney shall complete a minimum of 32 credit hours of
accredited transitional education within the first two years of the date of admission to the Bar.
Sixteen accredited hours shall be completed in each of the first two years of admission to the Bar
as follows:
(1) three hours of ethics and professionalism;
(2) six hours of skills; and
(3) seven hours of law practice management and areas of professional practice.
Ethics and professionalism, skills, law practice management and areas of professional practice are
defined in § 1500.2 of this Part. The ethics and professionalism and skills components may be
intertwined with other courses.
(b) Carry-over credit. Except as provided in § 1500.13(b)(2) of this Part, a newly admitted
attorney who accumulates more than the 16 hours of credit required in the first year of admission
to the Bar may carry over to the second year of admission to the Bar a maximum of eight credits.
Six credits in excess of the 16-hour requirement in the second year of admission to the Bar may
be carried over to the following biennial reporting cycle to fulfill the requirements of subpart C of
this Part. Ethics and professionalism credit may not be carried over.
(c) Accredited courses or programs only. Transitional continuing legal education credit will be
granted only for courses and programs approved as such by the CLE board, except as provided in
subdivision (d) of this section. No transitional continuing legal education course or program
consisting of non-traditional formats, such as self-study, correspondence work, videotapes,
audiotapes, motion picture presentations or on-line programs may be accepted for credit without
prior permission from the CLE board, except as provided in the regulations and guidelines.
(d) Other jurisdictions. Transitional continuing legal education courses approved by another state,
the District of Columbia, any territory of the United States or any foreign jurisdiction with
requirements meeting the standards adopted by the CLE board shall count toward the newly
admitted attorney's compliance with New York's transitional CLE program requirements in
accordance with the regulations and guidelines established by the CLE board and this Part.
(e) Post-graduation/pre-admission. A maximum of 16 credit hours of approved transitional CLE
courses taken from the date of graduation from law school up through the date of admission to the
New York Bar may be applied toward a newly admitted attorney's first-year CLE program
requirements. Credit hours in excess of 16 may not be carried over and applied toward the
second-year CLE requirement.
(f) Obligations of attorneys exempt from the program requirements.
59
(1) An attorney who is exempt from the requirements of this program and who is required to
comply with the continuing legal education requirements of another jurisdiction shall comply
with those requirements and shall certify to this compliance on the attorney's biennial attorney
registration statement.
(2) An attorney who is exempt from the requirements of this program and who is not required to
comply with the continuing legal education requirements of another jurisdiction shall so certify
on the attorney's biennial attorney registration statement.
(3) An attorney who is exempt from the requirements of this program and who thereafter ceases
to be exempt and commences the practice of law in New York during the first two years after
admission to the Bar shall be required to complete by the end of those two years 1.5 credit hours
of accredited continuing legal education as set forth in subdivision (a) of this section, in any
combination of categories set forth in said section, for each full month of the two-year period
during which the attorney practices law in New York.
(4) An attorney who permanently ceases to practice law in New York while commencing or
continuing the practice of law in another jurisdiction shall be exempt from the requirements of
this program for the year in which the permanent cessation from New York practice occurred, and
shall comply with the requirements of any jurisdiction in which the attorney practices law during
that year.
§ 1500.13 Reporting requirements
(a) Attorney obligations. Each newly admitted attorney subject to New York's transitional
continuing legal education requirements shall retain the certificate of attendance for each
approved transitional education course or program for at least four years from the date of the
course or program.
(b) Certification.
(1) Except as otherwise authorized by this Part, each newly admitted attorney subject to New
York's transitional continuing legal education requirements is required to certify along with the
submission of his or her biennial attorney registration statement that the attorney has satisfactorily
completed 32 credit hours of transitional continuing legal education (16 credit hours in the first
year of admission to the Bar, 16 credit hours in the second year of admission to the Bar) and that
the attorney has retained the certificates of attendance or other documentation required by the
CLE board for the accredited courses or programs.
(2) A newly admitted attorney who is required to file his or her biennial attorney registration
statement prior to completing the second year of admission to the Bar shall certify the actual
number of credit hours of transitional continuing legal education completed at the time the
statement is filed. The attorney shall remain responsible for completing the 16 second-year credit
60
hours of transitional continuing legal education by the end of that second year after admission,
but may apply 12 of the 16 credit hours to fulfilling the requirements of subpart C of this Part as
set forth in § 1500.22(b)(3) of this Part.
§ 1500.14 Waivers or modifications
(a) A newly admitted attorney may apply in writing to the CLE board for a waiver or
modification of program requirements based upon extenuating circumstances preventing the
newly admitted attorney from complying with the requirements, in accordance with the
regulations and guidelines established by the CLE board and this Part.
(b) Requests for extensions of time in which to complete program requirements based upon
extenuating circumstances shall be made pursuant to the procedures contained in the regulations
and guidelines and shall not be granted for a period of greater than 90 days absent special
circumstances. If an extension is granted, the period of time by which a newly admitted attorney
must complete the mandatory continuing legal education requirements applicable to all attorneys
as set forth in subpart C of this Part remains the same.
§ 1500.15 Non-compliance
The names of newly admitted attorneys who fail to comply with transitional continuing legal
education requirements will be submitted to the Appellate Division for appropriate action.
§ 1500.16 Effective date
Mandatory continuing legal education for newly admitted attorneys in the State of New York
shall become effective on October 1, 1997.
c.
Mandatory Continuing Legal Education for Attorneys other than Newly Admitted
Attorneys
§ 1500.20 Application
The requirements of this Subpart shall apply to all attorneys who have been duly admitted to the
practice of law in New York, are not exempt from these requirements pursuant to § 1500.5(b), and
are not newly admitted attorneys subject to the requirements of Subpart B of this Part.
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§ 1500.21 Statement of Purpose
It is of utmost importance to members of the Bar and to the public that attorneys maintain their
professional competence by continuing their legal education throughout the period of their active
practice of law. This Program establishes the minimum requirements for continuing legal
education for attorneys other than newly admitted attorneys in New York State.
§ 1500.22 Minimum Requirements
(a) Credit Hours. Each attorney shall complete a minimum of 24 credit hours of accredited
continuing legal education each biennial reporting cycle in ethics and professionalism, skills, law
practice management or areas of professional practice, at least four (4) credit hours of which shall
be in ethics and professionalism. Ethics and professionalism, skills, law practice management and
areas of professional practice are defined in § 1500.2. The ethics and professionalism components
may be intertwined with other courses.
(b) Biennial Reporting Cycle.
(1) The biennial reporting cycle shall be the two-year period between the dates of submission of
the attorney's biennial registration statement.
(2) An attorney shall comply with the requirements of this Subpart commencing from the time of
the filing of the attorney's biennial attorney registration statement in the second calendar year
following admission to the Bar.
(3) A newly admitted attorney whose transitional two year post-Bar admission period has not been
completed as of the last day the attorney registration statement in paragraph (2) is required to be
filed may apply 12 credit hours of the second-year accredited transitional education credits
required in § 1500.12(a) to fulfilling the requirements of this Subpart.
(c) Carry-Over Credit. An attorney who accumulates more than the 24 hours of credit in any one
biennial reporting cycle may carry over a maximum of six (6) credits to the next biennial reporting
cycle.
(d) Course or Program Formats. Continuing legal education courses or programs may include
traditional live classroom or audience settings; teleconferences; video conferences; satellite
transmissions; videotapes; audiotapes; motion picture presentations; interactive video instruction;
activities electronically transmitted from another location; self-study; correspondence work; and
on-line computer courses.
(e) Credit for Speaking and Teaching Activities. Credit may be earned through speaking, teaching
or participating in a panel in an accredited CLE program. Where teaching is done in tandem or by
panel, teaching credit shall be given to all participants.
(f) Credit for Teaching Law School Classes. Credit may be earned through teaching in an ABAaccredited law school as may be permitted pursuant to the Regulations and Guidelines of the CLE
Board.
(g) Credit for Attending Law School Courses. Credit may be earned for attending courses at an
ABA-accredited law school after admission to practice in New York provided (I) the attorney is
62
officially registered for the course, and (ii) the attorney completed the course as required by the
terms of registration.
(h) Credit for Judging Law Competitions. Credit may be earned for preparing students for and
judging law competitions, mock trials and moot court arguments, including those in high school,
pursuant to the Regulations and Guidelines of the CLE Board.
(I) Credit for Publications. Credit may be earned, as may be permitted pursuant to the Regulations
and Guidelines of the CLE Board, for legal research-based writing upon application to the CLE
Board, provided the activity (I) produced material published or to be published, in print or
electronically, in the form of an article, chapter or book written, in whole or in substantial part, by
the applicant, and (ii) contributed substantially to the continuing legal education of the applicant
and other attorneys.
(j) Credit for Performing Pro Bono Legal Services. Credit may be earned for performing
uncompensated legal services for clients unable to afford counsel pursuant to (a) assignment by a
court; or (b) a program, accredited by the CLE Board, of a bar association, legal services provider
or other entity. Credit shall be awarded pursuant to the Regulations and Guidelines of the CLE
Board, provided that no more than six hours of CLE credit may be awarded in a two-year reporting
period for performing pro bono legal services, and no more than one credit hour of CLE credit
may be awarded for every six hours of legal work performed.
(k) Accredited Courses, Programs and Activities Only. Continuing legal education credit will be
granted only for courses, programs and activities approved by the CLE Board, except where credit
is extended as provided in subdivision (m).
(l) Individual Course Approval. An attorney seeking approval of a course or program that has not
otherwise been approved shall apply to the CLE Board for approval in accordance with Board
procedures. Such approval must be sought at least 60 days prior to the occurrence of the course or
program, except in extenuating circumstances and only with prior permission of the Board.
(m) Other Jurisdictions. Continuing legal education courses approved by another state, the District
of Columbia, any territory of the United States or any foreign jurisdiction with requirements
meeting the standards adopted by the CLE Board shall count toward the attorney's compliance
with New York's CLE Program requirements in accordance with the Regulations and Guidelines
established by the CLE Board and this Part.
(n) Obligations of Attorneys exempt from the Program Requirements.
(1) An attorney who is exempt from the requirements of this Program and who is required to
comply with the continuing legal education requirements of another jurisdiction shall comply with
those requirements and shall certify this compliance on the attorney's biennial attorney registration
statement.
(2) An attorney who is exempt from the requirements of this Program and who is not required to
comply with the continuing legal education requirements of another jurisdiction shall so certify on
the attorney's biennial attorney registration statement.
63
(3) An attorney who is exempt from the requirements of this Program and who thereafter ceases to
be exempt and commences the practice of law in New York during a biennial reporting cycle shall
be required to complete by the end of the reporting cycle one credit hour of accredited continuing
legal education as set forth in § 1500.22(a), in any combination of categories set forth in said
section, for each full calendar month of the biennial reporting cycle during which the attorney
practices law in New York.
(4) An attorney who permanently ceases to practice law in New York while commencing or
continuing the practice of law in another jurisdiction shall be exempt from the requirements of this
Program for the reporting cycle in which the permanent cessation from New York practice
occurred, and shall comply with the requirements of the jurisdiction in which the attorney
practices law during that cycle.
§ 1500.23 Reporting Requirements
(a) Attorney Obligations. Each attorney subject to New York's continuing legal education
requirements shall retain the Certificate of Attendance or other documentation required by the
Board for each approved education course, program or activity for at least four (4) years from the
date of the course, program or activity.
(b) Certification. Except as otherwise authorized by this Part, each attorney subject to New York's
continuing legal education requirements is required to certify along with the submission of his or
her biennial attorney registration statement that the attorney has satisfactorily completed 24 credit
hours of continuing legal education for the current biennial reporting cycle and that the attorney
has retained the Certificates of Attendance or other documentation required by the CLE Board for
the accredited courses, programs or activities.
§ 1500.24 Waivers or Modifications
(a) An attorney may apply in writing to the CLE Board for a waiver or modification of Program
requirements based upon extenuating circumstances preventing the attorney from complying with
the requirements, in accordance with the Regulations and Guidelines established by the CLE
Board and this Part.
(b) Requests for extensions of time in which to complete Program requirements based upon
extenuating circumstances shall be made pursuant to the procedures contained in the Regulations
and Guidelines and shall not be granted for a period of greater than 90 days absent special
circumstances. If an extension is granted, the period of time by which the attorney must complete
the mandatory continuing legal education requirements of the next biennial reporting cycle
remains the same.
§ 1500.25. Non-compliance
The names of attorneys who fail to comply with continuing legal education requirements will be
submitted to the Appellate Division for appropriate action.
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§ 1500.26. Effective Date and Transition
The requirements of this Subpart shall become effective on December 31, 1998. Compliance with
the certification requirement shall commence with biennial attorney registration statements filed
on or after January 1, 2000, as follows:
(1) Attorneys who file their biennial registration statement in calendar year 2000 shall complete 12
credit hours of accredited continuing legal education as of the date of the filing in any combination
of the categories set forth in § 1500.22(a). Attorneys who accumulate more than 12 credit hours at
the time of this filing may carry over a maximum of six (6) credit hours to the next biennial cycle;
(2) Attorneys who file their biennial registration statement in calendar year 2001 must complete
the full 24 credit hours of accredited continuing legal education as set forth in § 1500.22(a).
Approved CLE credits earned from January 1, 1998, may be applied toward fulfilling the
requirements for the initial biennial reporting cycle.
G.
WEEKEND INTAKE ASSIGNMENTS
a.
Legal Authority and Judicial Order
Administrative Order
The court located at 100 Centre Street, New York, New York, Part 170, is hereby designated as a
Supreme Court part. Part 170 will be open to accept the filing of pre-petition detention
applications, filed under Family Court Act § 307.4, concerning juveniles who are arrested and
detained on weekends.
The justice that presides in Part 170 will conduct only hearings following detention pursuant to
Family Court Act § 307.4, which shall include the issuance of an order of detention, an order of
protection pursuant to Family Court Act § 304.2, as well as any and all appropriate orders pursuant
to these sections. Each case/application handled in Part 170 shall be subject to the same
substantive and procedural law as would have applied to it had the case/application commenced in
New York City Family Court.
This order shall in no way constitute an “opening” of the family court for any purpose.
b.
Weekend Arraignment Procedure
Juveniles arrested in all five boroughs will be produced at 100 Centre Street at 10 am each
weekend and Holiday. Panel attorneys, one from each Department, will appear 10 am to accept
assignment of any conflict cases. There is a Panel Office, Room 1401, in 100 Centre Street.
Attorneys will represent juveniles from their Department, and will keep those cases that are
assigned to their county. Cases from other counties will be assigned to the intake person assigned
on the day after weekend intake in the county where the case will be heard.
65
Attorneys interested in working weekend /Holiday intake must contact Caroline Diaz at (212) 3400595.
VI.
FORMS
! Membership Application for Panel of Attorneys for Children
!Application for Recertification
!Attorney for Child Voucher
!Holiday Intake Voucher
!Supreme Court Voucher for Representation of Adult Judiciary Law § 35 (8)
!State of New York Standard Voucher
!New York State Family Court Minute Order Form and Receipts
!Voucher for Court Reporter Services Rendered
!Voucher for Assigned Counsel, Psychiatrist or Physician
!Expert Services and Representation Expense Pre-Approval Form
!Request for Transcript from Mechanical Recording
!Affirmation of Services for Privately Paid Attorneys for Children
!Sample Court Order Appointing Privately Paid Attorney for the Child(ren)
!Sample Court Order Approving Attorney for the Child Compensation
!Sample Court Order Authorizing Transcript of Record
!Sample Order Authorizing Services other than Counsel Services
!Sample Court Order Appointing Mental Health Professional
!Order for Observation and Evaluation
!Substitute Form W-9 Request for Taxpayer Identification Number & Certification
!Attorney’s Certification of Appellant’s Continued Eligibility or Poor Person’s Relief and
Assignment of Counsel
!Sample Family Court Notices of Appeal
66
ETHICS - Role Of Child's Attorney
PATERNITY - Right To Counsel – Child
In this paternity proceeding in which the child was represented by an attorney in family court,
the mother moved to dismiss on the ground of equitable estoppel, and, after conducting a
hearing, the family court granted the motion and also dismissed a visitation petition. Petitioner
has appealed, and no appeal has been taken on behalf of the child. The child is represented by a
different attorney on appeal, who filed a brief in support of an affirmance, which is a position
counter to that taken by the attorney representing the child in family court. The child’s appellate
attorney appeared at oral argument and, in response to questions from the Court, revealed that he
had neither met nor spoken with the child. He stated that while he did not know the child’s
position on appeal, he determined his client’s position at the time of the trial from his review of
the record, and decided that supporting an affirmance would be in the 11½-year-old child’s best
interests.
While citing FCA § 241, the Rules of the Chief Judge (22 NYCRR § 7.2), New York State Bar
Association Standards, and the “Summary of Responsibilities of the Attorney for the Child”
issued by the Administrative Board of the Courts of New York, the Third Department concludes
that the child has not received the meaningful assistance of appellate counsel.
The child was entitled to consult with and be counseled by the attorney; to have the appellate
process explained; to have his questions answered; to have the opportunity to articulate a
position which, with the passage of time, may have changed; to explore whether to seek an
extension of time within which to bring his own appeal of the family court’s order; and to be
informed of the progress of the proceedings throughout. It appears that none of these services
was provided to the child.
Moreover, there is nothing in the record to indicate that the child suffered from any infirmity
which might limit his ability to make a reasoned decision as to what position his appellate
attorney should take on his behalf. Absent any of the extenuating circumstances set forth in 22
NYCRR § 7.2(d)(3), the appellate attorney should have met with the child and been directed by
his wishes even if the attorney believed that what the child wanted was not in the child’s best
interests. “By proceeding on the appeal without consulting and advising his client, appellate
counsel failed to fulfill his essential obligation. . . .”
The Court relieves the appellate attorney of his assignment and directs that a new appellate
attorney be assigned.
Matter of Mark T. v. Joyanna U.
(3rd Dept., 7/30/09)
http://courts.state.ny.us/Reporter/3dseries/2009/2009_06053.htm
Matter of Mark T. v Joyanna U.
2009 NY Slip Op 06053 [64 AD3d 1092]
July 30, 2009
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary
Law § 431.
As corrected through Wednesday, September 2, 2009
In the Matter of Mark T., Appellant, v Joyanna U. et al., Respondents.
(And Another Related Proceeding.)
—[*1] Christopher A. Pogson, Binghamton, for appellant.
John D. Cadore, Binghamton, for Joyanna U., respondent.
Teresa C. Mulliken, Harpersfield, for Paul V., respondent.
J. Mark McQuerrey, Law Guardian, Hoosick Falls.
Malone Jr., J. Appeal from an order of the Family Court of Broome County (Pines, J.), entered
March 27, 2008, which, among other things, in a proceeding pursuant to Family Ct Act article 5,
granted the motion of respondent Joyanna U. to dismiss the petition.
In December 1996, petitioner and respondent Joyanna U. (hereinafter the mother) engaged in a
sexual relationship. At that time, the mother was also engaged in a sexual relationship with
respondent Paul V. (hereinafter respondent). The following month, petitioner assaulted
respondent, was arrested and incarcerated. The mother and respondent were married several days
later and the subject child was born in October 1997. After respondent and the mother divorced
in 2007, petitioner commenced this paternity proceeding, seeking a DNA test to establish that he
was the biological father of the subject child and, in addition, petitioned for visitation. The
mother moved to dismiss the paternity petition based on the ground of equitable estoppel. After
conducting a hearing, Family Court granted the motion and also dismissed the visitation petition.
Petitioner appeals. No appeal has been taken on behalf of the child.
The child is represented by a different attorney on this appeal, who filed a brief in [*2]support of
an affirmance of Family Court's order, which is a position counter to that taken by the attorney
representing the child in Family Court. While taking a different position on behalf of a child on
appeal is not necessarily unusual, the child's appellate attorney appeared at oral argument and, in
response to questions from the court, revealed that he had neither met nor spoken with the child.
He explained that, while he did not know the child's position on this appeal, he was able to
determine his client's position at the time of the trial from his review of the record and decided
that supporting an affirmance would be in the 11½-year-old child's best interests.
In establishing a system for providing legal representation to children, the Family Ct Act
identifies, as one of the primary obligations of the attorney for the child, helping the child
articulate his or her position to the court (see Family Ct Act § 241). As with the representation of
any client, whether it be at the trial level or at the appellate level, this responsibility requires
consulting with and counseling the client. Moreover, expressing the child's position to the court,
once it has been determined with the advice of counsel, is generally a straightforward obligation,
regardless of the opinion of the attorney. The Rules of the Chief Judge (22 NYCRR 7.2) direct
that in all proceedings other than juvenile delinquency and person in need of supervision cases,
the child's attorney "must zealously advocate the child's position" (22 NYCRR 7.2 [d] [emphasis
added]) and that, in order to determine the child's position, the attorney "must consult with and
advise the child to the extent of and in a manner consistent with the child's capacities" (22
NYCRR 7.2 [d] [1]). The rule also states that "the attorney for the child should be directed by the
wishes of the child, even if the attorney for the child believes that what the child wants is not in
the child's best interests" and that the attorney "should explain fully the options available to the
child, and may recommend to the child a course of action that in the attorney's view would best
promote the child's interests" (22 NYCRR 7.2 [d] [2]). The rule further advises that the attorney
representing the child would be justified in advocating a position that is contrary to the child's
wishes when he or she "is convinced either that the child lacks the capacity for knowing,
voluntary and considered judgment, or that following the child's wishes is likely to result in a
substantial risk of imminent, serious harm to the child" (22 NYCRR 7.2 [d] [3]). In such
situations the attorney must still "inform the court of the child's articulated wishes if the child
wants the attorney to do so" (22 NYCRR 7.2 [d] [3]; see Matter of Carballeira v Shumway, 273
AD2d 753, 754-757 [2000], lv denied 95 NY2d 764 [2000]). The New York State Bar
Association Standards for representing children strike a similar theme in underscoring the ethical
responsibilities of attorneys representing children, including the obligation to consult with and
counsel the child and to provide client-directed representation (see generally NY St Bar Assn
Standards for Attorneys Representing Children in Custody, Visitation and Guardianship
Proceedings [June 2008]; NY St Bar Assn Standards for Attorneys Representing Children in
New York Child Protective, Foster Care, and Termination of Parental Rights Proceedings [June
2007]).
In October 2007, the Administrative Board of the Courts of New York issued a policy statement,
entitled "Summary of Responsibilities of the Attorney for the Child," which outlines the
necessary steps that form the core of effective representation of children. These enumerated
responsibilities, which apply equally to appellate counsel, include—but are not limited to—the
obligation to: "(1) [c]ommence representation of the child promptly upon being notified of the
appointment; (2) [c]ontact, interview and provide initial services to the child at the earliest
practical opportunity, and prior to the first court appearance when feasible; (3) [c]onsult with and
advise the child regularly concerning the course of the proceeding, maintain contact with the
child so as to be aware of and respond to the child's concerns and significant changes in the
[*3]child's circumstances, and remain accessible to the child."
Clearly, the child in this proceeding has not received meaningful assistance of appellate counsel
(see Matter of Dominique A.W., 17 AD3d 1038, 1040 [2005], lv denied 5 NY3d 706 [2005];
Matter of Jamie TT., 191 AD2d 132, 135-137 [1993]). He was, at the least, entitled to consult
with and be counseled by his assigned attorney, to have the appellate process explained, to have
his questions answered, to have the opportunity to articulate a position which—with the passage
of time—may have changed, and to explore whether to seek an extension of time within which to
bring his own appeal of Family Court's order. Likewise the child was entitled to be appraised of
the progress of the proceedings throughout. It appears that none of these services was provided to
the child (see Matter of Dominique A.W., 17 AD3d at 1040-1041).
Moreover, while the record reflects the position taken by the attorney for the child in Family
Court, there is nothing in the record to indicate that the child—who was 11½ years of age at the
time of the argument of the appeal—suffered from any infirmity which might limit his ability to
make a reasoned decision as to what position his appellate attorney should take on his behalf.
Indeed, absent any of the extenuating circumstances set forth in 22 NYCRR 7.2 (d) (3), the
appellate attorney herein should have met with the child and should have been directed by the
wishes of the child, even if he believed that what the child wanted was not in the child's best
interests (see 22 NYCRR 7.2 [d] [2]). By proceeding on the appeal without consulting and
advising his client, appellate counsel failed to fulfill his essential obligation (see Matter of Jamie
TT., 191 AD2d at 136-138).
Accordingly, the child's appellate counsel will be relieved of his assignment, a new appellate
attorney will be assigned to represent the child to address any issue that the record may disclose,
and the decision of this Court will be withheld.
Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the decision is withheld,
appellate counsel for the child is relieved of assignment and new counsel to be assigned to
represent the child on this appeal.
5/11/2015
The Role of the ARC in Alieanation
and High Conflict Custody and Visitation cases
Previously prepared for and delivered at a NYSBA Forum
1
5/11/2015
RoleoftheAFCinAlienationand
HighConflictCustodyandVisitationCases
The Children’s Law Center
New York
Fall 2010
2
5/11/2015
Goals
• Guidelines for how attorneys for children approach high conflict & alienation cases
• Shift from focusing on the parent (Gardner) to the alienated child (Johnston/Baker)
• Training will not solve all problems
• Provide a forum to discuss proposed strategies & implement solutions
3
5/11/2015
Who Is Involved?
• High‐conflict custody cases can emanate from any (or all) of the participants in a custody dispute: • Parents • Attorneys
• Mental Health Professionals
• Court System
•
(Child Custody Proceedings Reform, High‐Conflict Custody Cases: Reforming the System for Children Conference Report and Action Plan. Conference. Conference sponsored by the American Bar Association Family Law Section and The Johnson Foundation Wingspread Conference Center, Racine, Wisconsin, September 8‐10, 2000)
4
5/11/2015
Highconflictcasescanarisewhenparents,
attorneysormentalhealthprofessionals:
• Failtoactresponsiblyorbecomeinvestedinthe
conflict
• parentsareinadysfunctionalrelationship
• Parentshavepersonalitydisorders(i.e.,
antisocial,borderline,histrionic,ornarcissistic)
• areengagedincriminalorquasi‐criminal
conduct,substanceabuseorthereareallegations
ofdomesticviolence,orchildabuseorneglect
(ChildCustodyProceedingsReform,High‐ConflictCustodyCases:ReformingtheSystemforChildren
ConferenceReportandActionPlan.Conference.ConferencesponsoredbytheAmericanBar
AssociationFamilyLawSectionandTheJohnsonFoundationWingspreadConferenceCenter,
Racine,Wisconsin,September8‐10,2000)
5
5/11/2015
It Looks Like High Conflict – But Is it?
• TraumaticSeparation
Parentsmaynotbeprepared,skilledor
knowledgeableenoughtohandleachild’s
feelingstowardtherejectedparentwhileatthe
sametimedealingwiththeemotionaltrauma
connectedtotheseparation/divorce
Theseparentsareoftenopentoeducation,
changingtheirbehaviorsforthebenefitofthe
child,andengagingintherapy
6
5/11/2015
Alienation
Definition: A child who expresses unreasonable
negative feelings toward a parent that is
disproportionate to the child’s actual experience with
the parent
• John A. v. Bridget M., 16 AD3d 324 (1st Dep't ) In spite of custodial parent's interference in relationship between non‐
custodial parent and child, where child has positive feelings for non‐custodial parent, alienation does not exist. 7
5/11/2015
High Conflict vs. True Alienation
• Only 1% to 5% of children in alienation cases become fully "enmeshed" with the alienating parent; where a child has incorporated as his or her own, the extremely hostile feelings of the alienating parent for the target parent.
• it is impossible to encourage or even force the child to spend time with the target parent.
• No amount of evidence disproving the stated reasons for the hatred will serve to abate it. –
Clawar & Rivlin, page 142. Children Held Hostage: Dealing with programmed and brainwashed children. American Bar Association (1991).
8
5/11/2015
Alienated child vs.
other forms of discord
•
•
•
•
Coaching – telling a child what to say
Alignments – generally arise in older school children in response to the separation of parents
Traumatic separation
Realistic estrangement – Justified response to violence or parenting deficiencies. *Cases in which there exists some degree of alienation but also realistic estrangement
9
5/11/2015
Precursors of Alienation
• History of intense marital conflict
• Separation that was humiliating for alienating parent
• Conflict that is fueled by professionals/kin
10
5/11/2015
Strategies Alienators Use
•
Badmouthing
•
LimitingContact
•
Interferingwith
Communications
•
•
•
•
•
InterferingwithSymbolic
Communication
•
TellingChildTargetedParent
DoesnotLovethem
•
•
•
ForcingChildtoChoose
CreatingImpressionTargeted
ParentisDangerous
•
•
•
Dr.AmyJ.L.Baker,AdultChildrenofParental
AlienationSyndrome:BreakingtheTiesThatBind
(2007)
•
ConfidinginChild
AskingChildtoSpy
AskingChildtoKeepSecrets
ReferringtoTargetedParent
byFirstName
ReferringtoSMorSFasMom
orDad
Withholdingmedical,social
oracademicinformation
ChangingChild’sName
CultivatingDependency
11
5/11/2015
Strategies continued
• Bad mouthing/derogatory comments (factor in best interests analysis)
• Limiting contact – Alienating parent manipulates the child’s time to break the bond between the parent and child by scheduling events during other parent’s visitation, etc.
• Instilling fear that target parent is dangerous
• Withdrawing love/getting angry
12
5/11/2015
Strategies continued
• Telling child that target parent doesn’t love him/her
• Confiding in child about adult relationship
• Limiting mention/photos of parent
• Forcing child to reject parent
• Belittling parent in/f/o child
• Creating conflict b/t child and parent
• Cultivating dependency on alienating parent
13
5/11/2015
Strategies continued
• Having child refer to someone else as
mom/dad
• Not permitting child be alone with parent
• Telling child that someone else is
mom/dad
• Telling child he/she can’t visit
14
5/11/2015
Strategies continued
•
•
•
•
•
Discarding gifts/letters from parent
Interrogating child after visits
Imposing guilt on child
Having child spy on parent
Telling child that parent does not love
him/her
• Monitoring letters/phone calls
• Child calling parent by first name
15
5/11/2015
Strategies continued
• Alienator views his/her actions as being in
the child’s best interest and cannot accept
any other method of parenting
• Will never acknowledge or accept
responsibility for his/her actions or change
• Blind to the effects on the child, on target
parent, and extended family
• Self absorbed
16
5/11/2015
What Do Alienated Children Look Like?
Tell‐Tale Sings of Alienation – Baker/Johnston/Gartner
 Contradictory statements – hate/love messages
 Access to inappropriate info about target parent
 Character assaults (e.g., lazy, good for nothing, cheap, etc)
 Alliance with alienating parent (child uses “us” or “we”)
 Child spying on target parent
17
5/11/2015
What Do Alienated Children Look Like?





Using adult language
Black/White language
Child views alienating parent as victim
Fear of contact with target parent
Child exhibits anxiety re: target parent (what target parent will do to child)
 Child keeps secrets from the target parent
 Child mocks alienated parent
18
5/11/2015
What Do Alienated Children Look Like?
Confusion over significance of target parent (v. stepparent)
 Guilt over secrets kept from target parent
 Disregard for target parent’s authority
 Confusion over whether child is supposed to hate the parent
 Threatening target parent with court
 Fear of alienating parent
Presence of borrowed scenarios 19
5/11/2015
What Do Alienated Children Look Like?
 No independent memories
 Knowledge of events/ instances they didn’t witness and couldn’t possibly recall
 Things that happened while in “mommy’s belly”
 Frivolous things with undue importance
 Dated information that is repeated
 No positive memories or feelings
 Financial constraint
 Using non‐age appropriate or legal language
20
5/11/2015
Factors to Consider in Representing Children in Alienation Cases
. The Child’s Age and Cognitive Development
. Social Work Assessments
. Forensic Evaluations
21
5/11/2015
Age and Development
Children ages 2 – 4: Generally confused by
conflicts between parents
• Children ages 5 – 7: Capable of alignment with
one parent
• Children ages 7 – 10: May or may not be
already fully aligned/enmeshed
• Children ages 10 and up: May be completely
entrenched and have adopted parent’s position
as own
22
5/11/2015
Children Ages 4 - 8
•
•
•
•
•
•
Goal is to maintain contact with target parent and keep it from
moving backwards
Avoid supervised visitation unless real safety issue exists. If there
are child protective allegations regarding target parent, request an
O & E, therapeutic SV or SV exchange along with unsupervised
visits
Be ready to request forensics and schedule hearing dates early in
the case
Client counseling, to the extent possible, is important
Social work referral may be required to observe child with target
parent if child can tolerate contact
Substitution of judgment may be appropriate
23
5/11/2015
Children Ages 7 - 10
Input from MH professional/SW necessary before
substitution of judgment
Social work referral
Aggressive client counseling is important:
– Emphasize likelihood that judge will order visitation absent
good reason and strategize for alternative plan that client
can tolerate
– Discuss positive information/aspects about the target
parent that child may not be aware of
Request forensics and hearing as soon as possible
24
5/11/2015
Children Ages 10 and up
• Aggressive counseling appropriate, but be cautious of negatively impacting attorney‐
client relationship
• If client is entrenched with position – direct advocacy
Note: use caution in requesting an in camera proceeding in cases where a child is clearly coached • Prepare client for possibility that judge may order visitation
25
5/11/2015
Social Work Assessments
• Speak with collaterals
• Social work assessments may include:
1) Observation of child and target parent
2) Assessment of factors relevant to substitution of
judgment
3) Development of treatment plan
4) Recommendation for qualified evaluators and/or
therapists to conduct:
•
•
•
•
•
Forensic Evaluations
Observation & Evaluation Visits
Therapeutic Supervised Visitation
Individual Therapy
Family Therapy
26
5/11/2015
Substitution of Judgment:
Questions to Ask Yourself
• Isthereafindingbyaneutralandqualified
mentalhealthprofessionthatthechild
cannotmakeaknowing,voluntaryand
considereddecision?
Knowing:Wasmyclient’sdecisionconscious,
intentionalanddeliberate?
Voluntary:Wasmyclient’sdecisionbyhis/herfree
choice?
Considered:Wasmyclient’sdecisionmadewithcare
keepinginmindpossibleconsequences?
27
5/11/2015
Role of AFC in Parental Alienation Cases
• NoCaseLawIntheUSonthisIssue
– Guidedbystatestandardsandnational
organizations
• CompetingCaseLawinCanada
28
5/11/2015
Quebec Court of Appeals
• Onmotiontohavethechild’sattorneyremoved
aftertheattorneyrecommendedrenewalofthe
father’svisitationrightsratherthanadvocatingfor
thechildwhodidnotwishforthevisitationstobe
renewed.Heldthatcounsel,whenrepresentinga
childwhowas“capableofexpressinghiswishes
andcapableofinstructinganadvocate”must
advocatedirectlyforthechildandmaynot
substitutejudgment
•
F.(M.)c.L.(J.),211D.L.R.(4th)350(2002)
29
5/11/2015
Reasoning
“Ifthechildwassufficientlymaturetoexpresshiswishesand
instructcounsel,thencounselhadadutyasanadvocateto
listentothosewishesandtoputthemforward,bywayof
evidenceandadvocacy,beforetheCourt...[counsel]hadno
righttoexpressopinionsorrecommendationsbeforethe
Courtwhichwerecontrarytoherclient'swishes.Counsel
appointedtorepresentachildinacustodyoraccess
disputeisnottheretoactasajudgeofwhatisinhisbest
interests...Iftherehasbeenanyimpropermanipulationor
alienationofthechild,thejudgewillweighthewishes
expressedbythechildinthelightofanyevidenceofthat
manipulation.”
•
F.(M.)c.L.(J.),211D.L.R.(4th)350(2002)
30
5/11/2015
Ontario
•
•
•
Ontariocourtsviewtheroleofthechildren’sattorneyasprotectorofthechildren’s
interests
TheOntarioOfficeoftheChildren’sLawyer(OCL),apubliclyfundedlegaloffice
thatrepresentschildrenincustody,visitation,andwelfareproceedingshasissued
thefollowingPolicyStatementontheRoleofChild’sCounsel:
PositiononBehalfoftheChild
– Intakingapositiononbehalfofthechild,child’scounselwillascertainthe
viewsandpreferencesofthechild,ifany,andwillconsider:
– Theindependence,strength,andconsistencyofthechild’sviewsand
preferences,
– Thecircumstancessurroundingthechild’sviewsandpreferences,and
– Allotherrelevantevidenceaboutthechild’sinterests.
RachelBirnbaumandNicholasBala,TheChild’sperspectiveonLegalRepresentation:YoungAdultsReport
onTheirExperienceswithChildLawyers,25Can.J.Fam.L.11(2009).
31
5/11/2015
Reasoning
• “Itisforthechildren’scounsel,ultimately,to
presentwhateverevidencethatshehasor
toreviewtheevidenceandmake
submissionstoprotectthechildren’sbest
interests.”Wherethereisevidenceof
parentalalienation,itisnotuncommonfor
theOCLattorneytoadvocateaposition
againstthechild’sstatedwishes.
•
C.R.v.Children’sAidSocietyofHamilton,O.J.No.1251,4R.F.L.(6th)98(Ont.Sup.Ct.2004)
32
5/11/2015
Rule 7.2 Substitution of Judgment
• Is there a finding of moderate to severe
alienation by a neutral and qualified mental
health professional?
• How serious are the acts attributed to the
alienating parent?
• How entrenched is the child in his/her position?
• Do observations of the child and target parent
comport with what the child says his/her feelings
are?
• Does the child know all facts?
33
5/11/2015
Harm
• Whenisfollowingachild’swisheslikelyto
resultinasubstantialriskofimminent,
seriousharmtothechildunderRule7.2?
• ImminentHarm
• Likelytooccuratanymoment
• Impending
• Looktoabuseandneglectcaselaw
34
5/11/2015
Court Appearances
• When should you raise the issue of alienation in court (undermining client’s stated position)?
• Ways of raising the issue
– Avoid use of conclusory terms
– Describe behaviors
– Guide the Judge
35
5/11/2015
How to fast track an alienation case
• Avoid delays – if there is still a window in which the child can tolerate contact with the target parent, consistent contact must be established quickly because delays only cement the child’s position
• Forensic evaluator must be experienced in area
• Failure to order a forensic can be reversible error if the issue in the case is whether the child is being programmed by the alienating parent J.F. v. L.F., 181 Misc.2d 722 (Fam.Ct. Westchester County 1999); Schnee v. Schnee, 268 A.D.2d 392 (1st Dept. 2000).
• Orders for family therapy with a therapist experienced in alienation cases
• Orders for supervised visitation should only be therapeutic and should be a last resort
36
5/11/2015
Role of the Court in Managing Alienation Cases
Court orders related to services for child and parents
• Detailed and clear orders delineating parenting access, and mechanism for enforcement
• Temporary orders which avoid loopholes – M & F
• Final orders
•
•
•
•
•
Goals of services/Goals of professionals
Who will be seen in the sessions
Limits of confidentiality
Lines of communication
Dispute resolution
37
5/11/2015
Punitive Court Orders: alienating parent’s lack of compliance
Role of AFC in supporting or opposing:
• Fines against alienating parent
• Incarceration
• Suspension of Child Support
• Attorneys’ Fees
38
5/11/2015
Punitive Court Orders (contd)
Suspension of child support ‐ Lew v. Sobel, 46 A.D.3d 893 (2d Dept. 2007) court direct that the father pay 50% of his child support obligation to the mother’s attorney to be held in escrow until the mother demonstrated compliance with the visitation order. Court also stated that in light of the mother’s interference, the court should have reapportioned fees for the forensic evaluator and the LG. Attorney’s Fees
Incarceration – Lauren R. v. Ted R., 27 Misc.2d 1227(A) (2010) (plaintiff sentenced to 6 weekends of incarceration for violating order of visitation)
39
5/11/2015
Caselaw on Suspension of Child Support
•
Foster v. Daigle, 25 AD3d 1002 (3rd Dep't 2006) (custodial parent who actively obstructs the non‐custodial parent's right to visitation may lose his/her right to child support); Wiegert v. Wiegert, 267 AD2d 620 (3rd Dep't 1999) (the burden is on the parent to show that he/she has made reasonable efforts to repair the relationship or that breakdown in relationship is not the result of his/her conduct); Chestara v. Chestara, 47 AD3d 1046 (3d Dep't 2008) (parent's support obligation is reciprocal in that a child of employable age who refuses all contact forfeits the right to support); P.S.G. v. J.E.F., NYLJ 2008, (Fam. Ct. Nassau County 2008) (17 year old willing to see parent with third party present, did not abandon relationship); Tibaldi v. Meehan, 252 AD2d 588 (2d Dep’t 1998) (father had no contact with children, now teenagers, for more than ten years, and they “did not desire or intend to ever reestablish contact “ with him)
40
5/11/2015
Continued Child Support
• Usack v. Usack, 17 AD3d 736 (3rd Dep’t 2005) (suspending the mother’s support obligation pending further court order based upon a showing the father has made good faith efforts to encourage/restore relationship between mother and children; Celeste S. v. Jeremiah R., NYLJ (1991) (Where children were “extremely alienated,” the court ordered family therapy and suspended child support “until at least six months of meaningful visitation had taken place.
41
5/11/2015
When to Oppose a Change in Custody
• Child’ssenseofselfmaybedependentontherelationshipwith
thealienatingparentsothatseparationwouldcausethechildto
sufferanemotionalbreakdownofdevastatingproportions,if
custodywereawardedtothehatedtargetparent.
• Attemptstoswitchcustodywouldbefoughtagainstand
underminedbythechildtothechild’smaximumability
• Intheserarecases,thechildmuststaywiththealienating
parent,asitisnotpropertouseachildtopunishaparentfor
misbehavior.
–
Webbv.Knudson,133NH665,673(1990)."Childrenarenotchargeablewiththemisconductoftheirparents
andshouldnotbeuprootedfromtheirhomeinordertodisciplinearecalcitrantparent
42
5/11/2015
When to Request a Change of Custody?
Change of Custody – according to Johnston this
should be rare and not based solely on the
child’s rejection of a parent but on factors that
would typically lead to supervised contact with a
parent.
• Finding that alienating parent is psychotic/has
character disorder
43
5/11/2015
Change of Custody (contd)
• Alienating parent makes repeated
unsubstantiated allegations of abuse and
attempts to inculcate negative beliefs or
threatens child abduction
• Repeated refusal to comply with clearly specified
court orders and therapy
• Finding that child has psychological dysfunction,
antisocial development and evidence of
emotional trauma due to neglect and /or abuse
44
5/11/2015
Caselaw
Lew v. Sobel, 46 AD3d 893 (2d Dep't 2007) (despite alienating behavior on the part of the custodial parent, the court found that children’s bond to alienating parent is “so strong” that a change of custody would be harmful to the child); Young v. Young, 212 AD2d 114 (2d Dep’t 1995) (repeated uncorroborated and unfounded allegations of sexual abuse brought by the mother against father create serious doubt on her fitness to be the custodial parent); J.F. v. L.F. 181 Misc.2d722 (Misc 2d 1999); Mark L. v. Gail S. (NYLJ, 5/30/06) (denying change in custody after finding that children were so bonded to their mother that a change in custody “would serve to punish them for their mother’s transgressions against their father.”)
45
5/11/2015
Therapy and Treatment
• Childrenofhighconflictparentsare3times
morelikelytodeveloppsychological
problemsthanchildrenoflowconflict
parents
• Childrenofhighconflictparentsarealso
morelikelytosufferfrombehavioral
problemsastheyaregrowingup
•
Bala,N.andBailey,N.(2004).Enforcementofaccessandalienationofchildren:Conflictreduction
strategiesandlegalresponses.CanadianFamilyLawQuarterly, 23,1–61.
46
5/11/2015
What is the Right Therapy or Treatment
• TraditionalTherapy
– ValidateandEmpower
– TherapeuticAlliance
• FamilyTherapy
– Reconciliation
47
5/11/2015
Does alienation constitute emotional abuse? Statutes & Case Law
Federal Child Abuse Prevention and Treatment Act definition of emotional abuse: “a repeated pattern of caregiver behavior or extreme incidents that convey to children that they are worthless, flawed, unloved, unwanted, endangered or only of value in meeting another’s needs.”
Section on Article 10 filings based upon emotional abuse: In re Christine H, 13 AD3d 922 (3d Dep’t 2004) (finding of abuse based on the mother encouraging the child to fabricate abuse allegations against the father, and repeatedly urging the child to lie in order to advance her position regarding custody, etc. ); In re Ramazan U., Jr., 303 AD2d 516 (2d Dep’t 2003) (mother’s efforts to interfere with the father’s visitation and to alienate the child from him are sufficient to support a finding of neglect).
48
5/11/2015
Emotional Abuse Factors
•
•
•
•
•
•
•
Rejecting
Ignoring
Isolating
Corrupting//exploiting
Terrorizing
Verbally assaulting
Over‐pressuring
49
5/11/2015
Solutions
• Theearlieridentificationthe
better
• Preventit
• Educateeveryoneinthe
process
• Expeditedevaluation
• ClearanddirectedOrders
• Structuretominimizeparents
behaviors– ordersare
directivesandpenalties
• Considerhowthechildhandles
transitions(developmentand
temperament)
• Educatetheparents
• UnifiedCourt– 1Judge
• Specializednot
generalized
• Compulsorypre‐filing
disputeresolution
assessmentcomes
• Getalotofinformation
fromcollaterals
• Becautiouswiththerapy
referrals
50
5/11/2015
51
5/11/2015
Small Group Breakouts
Facilitated Discussion
1. Feedback regarding information/recommendation
2. Speaking in Court, Other Lawyers, Judges
3. Collaborating with Social Work
4. Questions/Suggestions/Recommendations for Group
52
In re Shyrelle F., Slip Copy (2011)
33 Misc.3d 1232(A), 2011 N.Y. Slip Op. 52193(U)
Unreported Disposition
Slip Copy, 33 Misc.3d 1232(A), 2011 WL
6141669 (Table), 2011 N.Y. Slip Op. 52193(U)
This opinion is uncorrected and will not be published in
the printed Official Reports.
In the Matter of Shyrelle F. Brandon S. Justin S.
Children under Eighteen Years of Age Alleged
to be Neglected by Wendell S., Respondent.
NN-1728 - 30/09
Family Court, Kings County
Decided on October 27, 2011
Digest-Index Classification:Parent and Child-Abused or Neglected Child-- Derivative Neglect
APPEARANCES OF COUNSEL
APPEARENCES:
Christine Waer, Esq.
Special Assistant Corporation Counsel
Administration for Children's Services
330 Jay Street
Brooklyn, New York 11201
Racquel Cousins, Esq.
For respondent father
299 Broadway, Suite 700
New York, New York 10007
Rhonda Weir, Esq.
For non respondent mother
869 East 12th Street
Brooklyn, New York 11230
Kim Ostheimer, Esq.
Attorney for the Child, Shyrelle F.
Legal Aid Society
Juvenile Rights Practice
111 Livingston Street
Brooklyn, New York 11201
Michael A. Fiechter, Esq.
Attorney for the Children, Brandon S. and Justin S.
P.O. Box 1107
Bellmore, New York 11710
OPINION OF THE COURT
Emily M. Olshansky, J.
After the conclusion of the fact-finding hearing in the above
child protective proceeding, the attorneys for the parties
and the Attorneys for the Children have submitted written
summations. In addition, the Attorney for the Children,
Brandon S. and Justin S., has moved by order to show cause
for the dismissal of the derivative neglect allegations. The
Administration for Children's Services is seeking a finding of
neglect against respondent based on inadequate guardianship
on behalf of respondent's stepdaughter, Shyrelle, and findings
of derivative neglect as to his biological children, Brandon
and Justin. Respondent opposes a finding of neglect or
derivative neglect and is seeking dismissal of the petitions.
The Attorney for the Children, Brandon S. and Justin S.,
seeks dismissal of the derivative neglect allegations and
the Attorney for the Child, Shyrelle, supports a finding of
neglect as to her client. For the reasons set forth herein, the
Court enters a finding of neglect against respondent based
on the inadequate guardianship of his stepdaughter, Shyrelle,
and dismisses the allegations of derivative neglect as to the
children, Brandon and Justin.
Factual Background
Respondent father and non-respondent mother are married
and the parents of two children, Justin, born on October 9,
2001 and Brandon, born on August 24, 2007. Non-respondent
mother is also the mother of Shyrelle, born on March 14,
1998. Shyrelle's father does not reside in the United States.
Prior to the commencement of this proceeding, respondent
father (hereinafter, the “respondent”) lived with his wife,
non-respondent mother, and the three subject children
in Brooklyn. The Administration for Children's Services
(hereinafter “ACS”) alleges and respondent does not
seriously dispute that he is a “person legally responsible” 1
for the care of Shyrelle. *2
On June 25, 2009, the Administration for Children's Services
(hereinafter, ” ACS“) filed the instant petitions against
respondent pursuant to Article 10 of the Family Court
Act. The petitions allege that respondent committed acts
against Shyrelle constituting neglect based on inadequate
guardianship. Specifically, the petitions allege that on one
occasion respondent inappropriately touched his stepdaughter
and on other occasions he insisted on having conversations
with her about sex which made her extremely uncomfortable.
There are no allegations of sexual contact or sexual abuse;
nor is there any allegation that respondent's actions were for
purposes of sexual gratification. The petitions also allege that
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
1
In re Shyrelle F., Slip Copy (2011)
33 Misc.3d 1232(A), 2011 N.Y. Slip Op. 52193(U)
as a result of respondent's actions with respect to Shyrelle,
Justin and Brandon are derivatively neglected children.
Upon the filing of the petitions, the children were temporarily
released to non-respondent mother under ACS supervision.
A temporary order of protection was entered on behalf of
the children against respondent excluding him from the case
address and directing that he stay away from them except for
agency supervised visitation with his two children.
A fact-finding hearing was conducted on January 11, 2010,
March 26, 2010, January 11, 2011 and February 25, 2011.
ACS called two witnesses, Shyrelle and the investigating
ACS caseworker. In addition, ACS introduced an oral report
transmission dated June 10, 2009. Respondent testified on his
own behalf.
After carefully evaluating the credibility of the witnesses
and considering the documentary evidence introduced, as
well as the relevant case and statutory law, the Court
finds that Shyrelle's testimony was sufficiently credible to
support a finding of neglect against respondent. The Court
rejects respondent's assertion that her testimony is unworthy
of belief. The Court has considered the inconsistencies in
her testimony and having had the opportunity to observe
her demeanor as she testified under oath found her to be
largely credible. 2 In contrast, the Court found respondent's
testimony denying the allegations of inappropriate touching
lacking in credulity. Accordingly, the Court has afforded his
testimony little weight. Nevertheless, the Court dismisses
the allegations of derivative neglect finding the evidence
insufficient to establish a fundamental defect in respondent's
*3 understanding of the duties of parenthood to the extent
that any child in his care would be at risk of neglect.
Procedural History
In early June 2009 respondent, non-respondent mother and
the three children were returning home from a shopping trip.
Respondent said that he wanted to make a bet and that he
would give a massage to anyone who could correctly name
the flower that grew in front of the family's house. Shyrelle
correctly named dandelions as the flower and won the bet.
Shyrelle thereafter asked respondent several times for her
massage. Initially, he refused saying that the bet had been
between him and non-respondent mother. Shyrelle continued
to ask and eventually respondent agreed.
Shyrelle said that on the day of the massage her mother was
not home and her two half brothers were in their rooms. She
said that it took place in the living room. She said that it
happened just before her prom around her mother's birthday.
At the beginning of the massage Shyrelle was lying on her
stomach. Respondent told her to tell him if he did anything
that made her uncomfortable. Shyrelle told him not to touch
her below her waist.
At first respondent massaged Shyrelle's back. According to
Shyrelle that felt good. Shyrelle had received massages from
other family members in the past and they had only massaged
her back. She said that her stepfather then began to massage
her legs. After that he told her to turn over. He again told her
to tell him if he did anything that made her uncomfortable.
Shyrelle again told him not to touch her below the waist.
According to Shyrelle's testimony respondent continued to
massage her legs. He then massaged her stomach. After that
Shyrelle said respondent moved ”lower and lower.“ At that
point Shyrelle again told respondent not to touch her below
the waist. He said, ”How do you expect me to give you a
massage if I don't touch you below the waist?“
During her testimony, Shyrelle was asked to explain where
respondent touched her when he moved ”lower and lower.“
She pointed to the parts of her body. The Court noted and
the attorneys agreed that Shyrelle was pointing to her pelvic
area and the top of her thigh. During the testimony of the
investigating caseworker she said that Shyrelle reported that
respondent massaged her on ”the outskirts of her groin area.“
According to Shyrelle she asked her stepfather not to touch
her below the waist three times. Nevertheless, she said that
he continued massaging her upper thigh and pelvic area. She
testified that she eventually turned over and then moved away
from him.
Shyrelle testified that the massage lasted between five and ten
minutes. When it was over, respondent told her not to tell her
mother. She testified that she did not tell her mother because
she was scared.
Shyrelle testified that she was completely shocked by what
her stepfather did. She said, ”I was just shocked; I couldn't
believe -- I didn't know what to feel. I was just shocked.“ She
said that it made her ”really sad“ and that she cried a lot. She
said that her teacher sent her to see her guidance counselor
about one week after the incident. Shyrelle told her guidance
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
2
In re Shyrelle F., Slip Copy (2011)
33 Misc.3d 1232(A), 2011 N.Y. Slip Op. 52193(U)
counselor about what happened. She also told her that she was
scared to go home because she was afraid that her stepfather
would touch her inappropriately again. Shyrelle's guidance
counselor called in a report of suspected child maltreatment
to the New York State Central Registry.
her brothers and that respondent treated her and the boys
the same way. She said that she and respondent occasionally
disagreed about homework or boyfriends and she described
the incident about the soup bowl stating that respondent gave
her the ”silent treatment“ for three days after it happened.
Shyrelle testified that prior to the massage she and respondent
had a good relationship. Nevertheless, Shyrelle testified about
a number of other interactions with her stepfather that upset
her. For example, she testified that respondent had initiated
a number of conversations with her *4 about sex when her
mother was not present. Shyrelle repeatedly told respondent
that she did not want to talk to him about sex, but he insisted.
Respondent testified and acknowledged that he and his
stepdaughter had engaged in a number of conversations about
sex. He said that he had informed non-respondent mother
about the conversations. He acknowledged that he did not
speak with Shyrelle for three days after discovering the dirty
soup bowl in the garbage. He denied that he ever gave
Shyrelle a massage.
According to Shyrelle, in early June 2009 respondent asked
her what she knew about the ”process of sex.“ Shyrelle
said she did not want to talk to him about it and that she
talked to her mother about those things. The conversation
stopped when Shyrelle's mother came home. Two days later,
however, respondent asked Shyrelle the same question. She
told respondent that she did not want to talk to him about it but
he insisted. She eventually told him about her understanding
of sexual intercourse. Respondent apparently understood her
description to be incorrect. He corrected her and explained.
Legal Analysis
In addition, she testified about a prior occasion when
respondent stopped speaking to her for several days after she
threw a dirty soup bowl in the garbage, instead of washing
it. She also described one incident when respondent kicked
her on her butt. She said that one day she had been walking
through the living room and tried to pass respondent who had
one leg resting on the arm of a chair. She said that when she
tried to pass he moved his leg and then kicked her in the
behind. She did not say that she was hurt or disturbed by that
incident.
The caseworker testified about the statements made by
Shyrelle during the interview she conducted with Detective
Wonsor on June 10, 2009 at the Child Advocacy Center.
The caseworker's testimony described the same sequence of
events that Shyrelle had described. The caseworker testified
that Shyrelle said that the massage took place around June 3.
The caseworker also testified that Shyrelle told her that she
kept a journal and that she had made two recent entries in
which she said that she wanted to die.
The caseworker testified that Shyrelle told her that prior to
the massage she and respondent had a good relationship. She
said they got along a lot of the time. She said that she loved
1. Respondent Failed to Exercise a Reasonable Degree of
Care and as a Result his Step-Daughter's Physical, Mental
or Emotional Condition was Impaired or Placed at Imminent
Risk of Impairment
Article 10 of the Family Court Act defines a ”neglected
child“ as a child less than 18 years of age ”whose physical,
mental or emotional condition has been impaired or is in
imminent danger of becoming impaired as a result of the
failure of h[er] parent or other person legally responsible
for h[er] care to exercise a minimum degree of care in
providing the child with proper supervision or guardianship,
by unreasonably inflicting or allowing to be inflicted harm or
a substantial risk thereof or by any other acts of a similarly
serious nature“ (Family Court Act § 1012 [f] [i] [B]).
Family Ct Act § 1012 (f) imposes two requirements for
a finding of neglect, which must be established by a
preponderance of the evidence (Family Ct Act § 1046 [b]
[i]). First, there must be a showing that a parent failed to
exercise a minimum degree of care. A ”minimum degree of
care“ is a ”baseline of proper care for children that all parents,
regardless of lifestyle or social or economic *5 position,
must meet.“ This is an objective test requiring the court to
determine whether ”a reasonable and prudent parent [would]
have so acted, or failed to act, under the circumstances then
and there existing “ (Nicholson v Scoppetta, 3 NY3d 357, 368
- 370 [2004]; Matter of Afton C., 17 NY3d 1 [2011]). The
statute provides that parents and persons legally responsible
for the care of a child exercise only a minimum degree of care
-- not maximum, not best, not ideal -- and the failure to do
so must be actual, not threatened (In Matter of Afton C., 17
NY3d at 9).
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
3
In re Shyrelle F., Slip Copy (2011)
33 Misc.3d 1232(A), 2011 N.Y. Slip Op. 52193(U)
Second, there must be proof of actual or imminent danger
of physical, emotional, or mental impairment to the child. 3
The drafters of article 10 were ”deeply concerned“ that
an imprecise definition of child neglect might result
in ”unwarranted state intervention into private family
life“ (Nicholson v Scoppetta, 3 NY3d 357, 368 -- 370 [2004];
Matter of Nassau County Dept. of Social Servs. [Dante M.] v
Denise J., 87 NY2d 73, 78-79 [1995]). This prerequisite to a
finding of neglect ensures that the Family Court, in deciding
whether to authorize state intervention will focus on serious
harm or potential harm to the child, not just on what might be
deemed undesirable parental behavior.
”Imminent danger“ reflects the Legislature's judgment that a
finding of neglect may be appropriate even when a child has
not actually been harmed. Imminent danger of impairment
to a child is an independent and separate ground on which
a neglect finding may be based. Imminent danger, however,
must be near or impending, not merely possible (Family Court
Act § 1012 [h]; Nicholson v Scoppetta, 3 NY3d 357, 368 -370 [2004]; Matter of Angelique L. v Tracy L., 42 AD3d 569
[2d Dept 2007]).
Additionally, in order to establish neglect, the ”impairment
must be clearly attributable to the unwillingness or inability of
the respondent to exercise a minimum degree of care toward
the child.“ In this regard, the Legislature recognized that the
source of emotional or mental impairment-unlike physical
injury-may be murky, and that it is unjust to fault a parent
too readily. The Legislature therefore specified that such
impairment be ”clearly attributable “ to the parent's failure to
exercise the requisite degree of care (Nicholson v Scoppetta,
3 NY3d 357 at 370).
In the instant case, respondent failed to exercise a minimum
degree of care when he gave his stepdaughter a massage on
”the outskirts of her groin, “ repeatedly touching her pelvic
area and the top of her thigh despite her three explicit requests
that he not do so. Applying an objective test, this is not how
a reasonable and prudent parent would have acted under the
circumstances.
The fact that respondent touched his stepdaughter
inappropriately on only one occasion does not require
a different result since the evidence establishes that
respondent's judgment was impaired and the child was
exposed to a risk of substantial harm (Matter of Jared S. v
Monet S., 78 AD3d 536 [1st Dept 2010] [a single incident of
domestic abuse is sufficient to support a finding of neglect
where the parent's judgment was strongly impaired and the
child was exposed to a risk of substantial harm]; In re Joseph
RR., 86 AD3d 723 [3d Dept 2011] [a finding of neglect does
not require actual injury or impairment but only an imminent
threat that such injury may result and such a threat may *6
result from a single incident]; Matter of Serenity P., 74 AD3d
1855 [4th Dept 2010] [where a mother left her two children,
ages one and three, unattended in a car for 15 minutes while
she went shopping she demonstrated that her judgment was
strongly impaired and her children were exposed to a risk of
substantial harm sufficient to support a finding of neglect];
In re Victoria CC., 256 AD2d 931, 932-933 [3d Dept 1998]
[a single incident may be sufficient to constitute neglect if
the parent was aware of the intrinsic danger of the situation
and leaving a nine-month-old child unattended in a bathtub
is intrinsically dangerous and manifests a lack of judgment
that placed the child in substantial risk of harm]; Matter of
Rachel H., 60 AD3d 1060, 1061 [2d Dept 2009] [one incident
of excessive corporal punishment was sufficient to establish
neglect where the mother threw a can of hairspray at her fouryear-old child]; Matter of Lester M., 44 AD3d 944 [2d Dept
2007] [a single incident may be sufficient to constitute neglect
if the parent was aware or should have been aware of the
intrinsic danger of the situation and the danger of using a
curling iron near a two-year-old child jumping on the bed
should have been apparent]; Matter of Padmine M., 84 AD3d
806 [2d Dept 2011] [a single incident of excessive corporal
punishment supported a finding of neglect where the father
hit his 15-year-old daughter several times with a pole, causing
bruises to her arm and back]).
The evidence establishes that Shyrell's physical, mental or
emotional condition was impaired or placed at substantial
risk of becoming impaired as a direct result of respondent's
actions. Shyrelle testified that she was completely shocked by
what her stepfather did. She said that it made her ” really sad“
and she cried a lot as a result. Although Shyrelle attempted
to keep the incident a secret she was unable to do so. Her
reaction was apparently sufficiently obvious to her teacher
that she sent her to see her guidance counselor.
Shyrelle felt betrayed by her stepfather. She was scared to go
home because she did not want to see him and she was afraid
that he would touch her inappropriately again.
She continued to express her feelings of sadness and
confusion during the months that followed. She talked about
how disappointed she was when she learned that her mother
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
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In re Shyrelle F., Slip Copy (2011)
33 Misc.3d 1232(A), 2011 N.Y. Slip Op. 52193(U)
continued to maintain contact with her stepfather. She wished
that her mother would divorce him. Later, she made entries in
her diary indicating that she wanted to die.
2. The Nature and Duration of the Underlying Neglect are
Insufficient to Establish a Fundamental Flaw in Respondent's
Understanding of the Duties of Parenthood Sufficient to
Create a Substantial Risk of Harm for any Child in his Care
Utilizing the concept of derivative neglect, the courts have
attempted to protect not only children who are the direct
victims of abuse or neglect, but also those who have a
probability of being subject to maltreatment because they
are in the care of a respondent who has been found to have
neglected another child. The concept of derivative neglect is
based on the assumption that a respondent who mistreats one
child is more likely to mistreat other children in his care.
Accordingly, Family Court Act § 1046 (a) (i) provides that
proof of the abuse or neglect of one child is admissible
evidence on the issue of the abuse or neglect of other children
of respondent (Matter of Jovann B., 153 AD2d 858 [2d
Dept 1989]; Matter of James P., 137 AD2d 461 [1st Dept
1988]). Nevertheless, there is no per se rule that the children
of a respondent who neglects one sibling are automatically
also neglected children. The mere admissibility of evidence
constitutes neither prima facie nor presumptive evidence of
abuse or neglect of that child's siblings (Dutchess County
Dept of Social Servs. on behalf of Douglas E., 191 AD2d
694 [2d Dept 1993]). Rather, the court must consider the
parent's role and nature of the underlying misconduct, notably
its duration, the circumstances surrounding its commission
and whether it can be said to evidence a fundamental flaw
in respondent's understanding of the duties of parenthood
sufficient to create a substantial risk *7 of impairment for
any child in his care (In re Andrew B.-L., 43 AD3d 1046,
1047-1048 [2d Dept 2007]; In re Jahyalle F., 66 AD3d 1019,
1019-1020 [2d Dept 2009] [where respondent put her son
in a hot oven as a form of punishment she demonstrated a
fundamental defect in her understanding of parental duties
relating to the care of children, sufficient to support a finding
of derivative neglect]; In re Ramsay M., 17 AD3d 678 [2d
Dept 2005] [the sexual abuse of one child was sufficient
to establish an impaired level of parental judgment creating
a substantial risk of harm for any child in his care]; In re
Cory S., 70 AD3d 1321 [4th Dept 2010] [by allowing her
daughter to be sexually abused by her adult son respondent
demonstrated a fundamental defect in her understanding of
the duties and obligations of parenthood sufficient to support
a finding of derivative neglect]).
In determining whether the abuse or neglect of one child is
sufficient to support a derivative finding as to other children
in a respondent's care the courts have generally considered
whether the direct abuse or neglect demonstrated such a
fundamental defect in respondent's understanding of the
duties and obligations of parenthood as to create a substantial
risk of harm to any child in his care. Numerous factors are
relevant to this determination including the following:
(i) whether the direct abuse or neglect was serious and/or
involved a course of abusive or neglectful behavior;
(ii) whether there is evidence of specific harm to the siblings
or whether the underlying abuse or neglect was of sufficient
magnitude to establish that the siblings' physical, mental or
emotional condition was in imminent danger of becoming
impaired in the absence of extraneous proof;
(iii) whether the direct abuse or neglect was sufficiently
proximate in time to reasonably support the conclusion that
the condition continues to exist.
A.The Seriousness of the Underlying Finding
In considering whether to enter a derivative finding the
courts have examined the nature and duration of the
underlying abuse or neglect. These factors are considered
since it is assumed that the more serious and longstanding
the underlying misconduct the more probative it is of
respondent's ability to provide adequate care to any children
in the home.
Where the underlying finding was based on acts of sexual
abuse by a respondent derivative findings are frequently
made (see Matter of Rasheda S., 183 AD2d 770 [2d
Dept 1992] [respondent's sexual abuse of his stepdaughter
supported a derivative finding of neglect as to his elevenyear-old daughter since the direct abuse demonstrated a
fundamental defect in respondent's understanding of the
duties of parenthood]; In re Vincent L., 46 AD3d 395 [1st
Dept 2007], lv denied 10 NY3d 706 [2008] [respondent's
sexual abuse of children under the age of 14 demonstrated
such an impaired level of parental judgment as to create a
substantial risk of harm to the remaining children in his care];
Matter of Jasmine A., 18 AD3d 546 [2d Dept 2005] [eviden
ce that one child was sexually and physically abused and
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
5
In re Shyrelle F., Slip Copy (2011)
33 Misc.3d 1232(A), 2011 N.Y. Slip Op. 52193(U)
that her brothers were physically abused, supported a finding
of derivative neglect as to the remaining children since
respondent's conduct demonstrated a fundamental defect in
his understanding of parental duties relating to any child in
his care]).
Similarly, where the underlying finding was based on
physical abuse by a respondent a derivative finding may be
warranted (see Matter of Dutchess County Dept. of Social
Servs. [Noreen K.], 242 AD2d 533 [2d Dept 1997] [derivative
finding entered based on three non-accidental bone fractures
suffered by a two-month-old infant since the injuries showed
such an impaired level of parental judgment as to create a
substantial risk of harm for any child in the parents' care];
In re Joshua R., 47 AD3d 465 [1st Dept 2008], lv denied
11 NY3d 703 [2008] [findings of derivative neglect entered
where respondent shoved food into the mouth of a child who
refused to eat and then *8 slapped him in the face causing
vomiting, a bloody nose and bruised eye]; Matter of Eli G.,
189 AD2d 764 [2d Dept 1993] [respondent's beating of his
son with an electrical cord resulting in bruises and lacerations
was sufficient to establish derivative abuse where the beating
was not an isolated incident but a pattern of discipline that
the respondent continued to feel was justified]; Matter of
Pierre M., 239 AD2d 262 [1st Dept 1997] [evidence that
respondent hit her 15-year-old daughter in the head with a
wooden table leg with a nail protruding causing lacerations
requiring stitches supported a derivative finding]; Matter of
Dareth O., 304 AD2d 667 [2d Dept 2003]).
Likewise, derivative neglect findings are often made in
cases where the underlying abuse or neglect was based on
a course of conduct rather than an isolated incident. This
factor is considered since it is presumed that the more
longstanding the underlying misconduct, the more probative
it is of respondent's ability to provide adequate care to any
child (compare Matter of Eli G., 189 AD2d 764 [2d Dept
1993] [respondent's abuse of his son by beating him with
an electrical cord was sufficient to establish derivative abuse
where the beating was not an isolated incident but a pattern
of discipline that respondent felt was justified]; Matter of
Andrew B., 49 AD3d 638 [2d Dept 2008], lv denied 10
NY3d 714 [2008] [respondent's repeated fabrications as to
the child's medical condition, which required unnecessary
medical treatments and the withdrawal of the child from
school, demonstrated fundamental flaws in her understanding
of the duties of parenthood sufficient to warrant a finding
of derivative neglect with respect to the other child in the
home], with Matter of Amanda R., 209 AD2d 702 [2d Dept
1994] [evidence of a single incident of abuse of a onemonth-old child did not make out a prima facie case of
derivative neglect as to respondent's 10-year old]; In re Keith
B., 306 AD2d 343 [2d Dept 2003] [evidence of a prior neglect
finding entered three months before the subject child was
born was an isolated incident which did not warrant a finding
of derivative neglect, although there were two other prior
findings, they were remote in time]; In re Samuel Y., 270
AD2d 531 [3d Dept 2000] [evidence of a single incident in
which the mother struck one of her children on the side of
the face was insufficient to prove such an impaired level of
parental judgment as to create a substantial risk of harm for
any child in her care]).
Moreover, where the underlying finding was based on
acts of a respondent perpetrated on multiple victims a
derivative finding may be warranted (Matter of Jasmine A.,
18 AD3d 546 [2d Dept 2005] [evidence that one child was
sexually and physically abused and that two of her brothers
were physically abused was sufficient to support a finding
of derivative neglect as to the remaining children since
respondent's conduct demonstrated a fundamental defect in
his understanding of parental duties relating to any other
children in his care]; In re Shaun X., 300 AD2d 772 [3d
Dept 2002] [evidence that the father abused and neglected his
daughter, that he repeatedly sexually abused his girlfriend's
son while he was entrusted with the care of his daughter
and that he left his daughter unattended while abusing
his girlfriend's son was sufficient to support a derivative
finding]).
Likewise, where a respondent commits acts of sexual or
physical abuse against one child while other children are
present a derivative finding may be warranted (see Matter
of Amanda LL., 195 AD2d 708, 710 [3d Dept 1993] [the
nature of the abuse and that it was perpetrated while another
child was in the same room demonstrated a total lack of
understanding of the parental role, which created a substantial
risk of physical injury likely to cause protracted impairment
of the non-target child's physical and emotional health, thus
supporting a finding of derivative abuse]; In re Joseph RR.,
86 AD3d 723 [3d Dept 2011] [evidence that respondent and
her paramour fought frequently, that he drank alcohol daily,
that during an argument, while three of the children were
present, he threatened respondent with a handgun, discharged
the weapon numerous times and that he grabbed *9 one
child's wrist, displayed his pocket knife and threatened to cut
her finger off for picking her nose, supported a derivative
finding for another child in the home]; In re A.J., 17 Misc
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6
In re Shyrelle F., Slip Copy (2011)
33 Misc.3d 1232(A), 2011 N.Y. Slip Op. 52193(U)
3d 631, 643-644 [Fam Ct, Queens County 2007] [evidence
that respondent abused one child while another child was in
the room created a substantial risk of physical injury likely to
cause protracted impairment of the non-target child's physical
or emotional health and supported a finding of derivative
abuse]; In re Ingrid R., 18 Misc 3d 1129A [Fam Ct, Queens
County 2008] [exposing a 10-year-old child to the sexual
abuse of two other children constituted derivative abuse]).
In such circumstances, the physical and emotional harm
inflicted on the ” target child“ is considered evidence that
the perpetrator lacks the capacity to care for and protect the
other children in his care (Matter of Melissa L., 276 AD2d
856 [3d Dept 2000], lv denied 96 NY2d 702 [2001] [the
repeated sexual abuse of one child evinced a lack of ability
to protect a child from harm, which created a substantial risk
to any child in respondent's care]; In re Christopher W., 299
AD2d 268 [1st Dept 2002] [the nature and severity of the
direct abuse, involving a bathtub scalding of a child resulting
in death, warranted a finding of derivative abuse]; Matter of
Jorge S., 211 AD2d 513 [1st Dept 1995], lv denied 85 NY2d
810 [1995] [an unexplained fracture sustained by one child
supported a finding of derivative neglect as to other children
in the home]; Matter of Christina Maria C., 89 AD2d 855
[2d Dept l982] [one-year-old was found to be derivatively
neglected based upon the physical abuse of the child's sevenyear-old half-brother]; Matter of Rasheda S., 183 AD2d 770
[2d Dept 1992] [the sexual abuse of a stepdaughter supported
a derivative finding as to an eleven-year-old daughter since
the direct abuse demonstrated a fundamental defect in
respondent's understanding of the duties of parenthood];
Matter of Dutchess County Department of Social Services o/
b/o Douglas E., 191 AD2d 694 [2d Dept 1993] [a derivative
neglect finding was entered as to respondent's son where he
repeatedly sexually abused his 10-year-old daughter]).
In the instant case, the underlying finding was not based
on acts of physical or sexual abuse. It was not based on
a course of conduct but on an isolated incident. It did not
involve multiple victims or acts of abuse or neglect against
one child while other children were present. Accordingly,
the underlying finding was not of sufficient duration or
magnitude to support the conclusion that respondent was
unable to provide adequate care to any children in the home.
B. Whether the Underlying Neglect was of Sufficient
Magnitude to Establish that the Siblings' Physical, Mental
or Emotional Condition is in Imminent Danger of Becoming
Impaired in the Absence of Extraneous Proof
In order to establish that respondent's actions against Shyrelle
are indicative of a fundamental flaw in his understanding
of the duties of parenthood sufficient to establish derivative
neglect ACS must introduce evidence of specific harm to
the siblings unless the underlying neglect is of sufficient
magnitude to support a finding in the absence of extraneous
proof (Nicholson v Scoppetta, 3 NY3d 357, 370 [2004];
Matter of Cadejah AA., 33 AD3d 1155 [3d Dept 2006]).
Absent evidence of actual harm, the underlying finding must
provide a reliable indicator that the siblings' physical, mental
or emotional condition is in imminent danger of becoming
impaired. Otherwise, a finding of derivative neglect cannot
stand (see e.g., In re Christina P., 275 AD2d 783 [2d Dept
2000] [although respondent knew or should have known that
allowing her daughter and her paramour to sleep together in
the same bed would not have been tolerated by a reasonably
prudent parent and thereby placed her daughter in imminent
danger of sexual abuse, there was insufficient evidence to
support a finding of derivative neglect with regard to her
son]; In re Ijeoma O., 271 AD2d 691 [2d Dept 2000] [where
respondent was aware that her daughter was emotionally
disturbed and needed mental health services that she failed
to obtain, she neglected the child; however, the evidence was
*10 insufficient to sustain the finding that she derivatively
neglected her other children]; Matter of Andrew B.-L., 43
AD3d 1046 [2d Dept 2007] [no derivative neglect in the
absence of evidence that respondent used excessive corporal
punishment against the other children]; In re Shawndel M., 33
AD3d 1006 [2d Dept 2006] [although respondent encouraged
the child to decline medical treatment and leave the hospital
thereby placing her in imminent danger of impairment, the
finding of derivative neglect was unsupported since there
was no showing that respondent's actions placed the sibling
at imminent risk]; In re Summer Y.-T., 32 AD3d 212 [1st
Dept 2006] [a derivative finding of neglect was not warranted
where the parents' conduct was not so egregious as to support
a conclusion that they lacked the requisite judgment to
function as adequate parents]; Matter of Justin O., 28 AD3d
877 [3d Dept 2006] [respondent's failure to protect one child
from excessive corporal punishment did not establish that
the other children were derivatively neglected since there
was no evidence that any other child was struck or that their
physical, mental or emotional condition was impaired or in
danger of becoming impaired as a result of the incident];
Matter of Daniella HH., 236 AD2d 715 [3d Dept 1997]
[where the underlying finding was based on the medical
neglect of an infant who had health problems since birth
and was admitted to the hospital suffering from failure to
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7
In re Shyrelle F., Slip Copy (2011)
33 Misc.3d 1232(A), 2011 N.Y. Slip Op. 52193(U)
thrive a finding of derivative neglect was unwarranted]; In
re Jocelyne J., 8 AD3d 978 [4th Dept 2004] [where the
underlying finding was based on the fact that respondents,
having raised a child as their own, sent her back to Haiti
without making arrangements for her to return, since those
actions did not provide a reliable indicator that the second
child was at substantial risk of harm, the child's attorney
opposed a derivative finding and respondents cared for the
second child appropriately]; In re Julia BB., 42 AD3d 208 [3d
Dept 2007], lv denied 9 NY3d 815 [2007] [even if the target
child had been abused no derivative finding should have been
entered where there was no evidence that the other children's
physical, mental or emotional well-being was impaired or in
danger of becoming impaired since the other children were
thriving in respondents' care and they were attentive and
loving parents who attended to all of the children's needs]).
In recent years the Court of Appeals has repeatedly
emphasized the need to prove the element of impairment or
risk of impairment stressing that presumptions, assumptions
suspicion and conjecture will not suffice (Nicholson v
Scoppetta, 3 NY3d 357, 370 [2004]; Matter of Afton C., 17
NY3d 1 [2011]; Nassau Co unty Dept. of Social Services on
Behalf of Dante M. v Denise J., 87 NY2d 73, 79 [1995] [the
Family Court erred in concluding that a positive toxicology
for a controlled substance alone was sufficient to support a
finding of neglect since the test alone does not prove that the
child has been physically, mentally or emotionally impaired
or is in imminent danger of being impaired; relying solely
on a positive toxicology for a neglect determination fails to
make the necessary causative connection to the surrounding
circumstances that may or may not produce impairment or
imminent risk of impairment in the newborn child]; see also
Matter of Cadejah AA., 33 AD3d 1155 [3d Dept 2006]).
Addressing this issue in Matter of Afton C. (17 NY3d 1
[2011]), the Court of Appeals vacated findings of neglect
that had been entered against a father on behalf of his five
children. In that case, the Court found that the nature of the
underlying misconduct was not of sufficient magnitude to
support a neglect finding in the absence of extraneous proof
of harm or risk of harm. Specifically, the Court held that the
father's plea of guilty to rape in the second degree, engaging
in sexual intercourse with a person less than 15 years of
age, patronizing a prostitute under 17 years of age and his
acknowledgement that he was an untreated level three sex
offender, without more, did not warrant a neglect finding
where there was no evidence that his actions inflicted harm
or a substantial risk of harm to his own children. *11
In Afton C., the Family Court had entered a finding of neglect.
It concluded that the father's behavior created a substantial
risk of harm to the children because he was a convicted sex
offender and that he, therefore, ”posed a risk of harm to
the public at large.“ Additionally, the court found that the
father's testimony demonstrated a ”lack of candor, a shortage
of insight into his own behavior and an attempt to avoid
responsibility for the illegal acts involving minors“ (Id., 17
NY3d at 8). Moreover, the court saw the father's failure
to obtain treatment as demonstrating an impaired level of
parental judgment sufficient to create a substantial risk of
harm to any child in his care.
The Appellate Division, Second Department reversed holding
that ”[t]he mere fact that a designated sex offender resides
in the home is not sufficient to establish neglect absent a
showing of actual danger to the subject children. “ The Court
added that although the trial court could properly consider
whether father's testimony was evasive the evidence remained
insufficient to establish that he posed an imminent danger to
the children.
The Court of Appeals agreed with the Appellate Division
rejecting the argument that the father's status as a sex
offender convicted of crimes involving minors was sufficient
to establish that he posed a danger to his own children. The
Court emphasized that a presumption of risk could not be used
as a substitute for evidence to establish the necessary causal
connection between parental misconduct and the alleged
harm or risk of harm to the children. The Court noted that
such bare allegations do not meet the Family Court Act's
requirement for proof by a preponderance of the evidence of
actual or imminent risk of harm as a result of the parent's
failure to exercise a minimum degree of care (Matter of Afton
C., 17 NY3d at 10, citing Nicholson, 3 NY3d at 370 -- 371).
The Court rejected the suggestion that an untreated sex
offender residing with his children is presumably a neglectful
parent. The Court stated that the Sex Offender Registration
Act (SORA) assessment was not designed to ascertain
whether the offender met the Family Court Act's definition of
parental neglect. The Court indicated that even if a level three
SORA assessment were evidence of likely recidivism, child
protective services failed to prove that the father's crimes
endangered his children. Accordingly, the likelihood of a
repeat offense -- which is what SORA purports to measure -is not directly relevant to whether respondent's own children
were at imminent risk.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
8
In re Shyrelle F., Slip Copy (2011)
33 Misc.3d 1232(A), 2011 N.Y. Slip Op. 52193(U)
The Court stressed that child protective services failed
to present evidence, expert or otherwise, explaining how
respondent's criminal conviction established that he posed a
risk of harm to his children (Matter of Afton C., 17 NY3d at
10 -- 13). The fact that respondent's crimes involved victims
younger than 18 was deemed insufficient to establish that he
breached a minimum duty of parental care or posed a danger
of near or impending harm to his children. The Court added
that although respondent was evasive and, in the Family
Court's view, lacked candor or insight into his behavior, that
was insufficient to fill the evidentiary gap (Id.).
Applying similar reasoning in Matter of Cadejah AA. (33
AD3d 1155 [3d Dept 2006]), the Appellate Division, Third
Department rejected a derivative finding although a parent
had neglected his teenage stepdaughter by spying on her
through a hole he made in her bedroom wall. The Court
explained that its decision was based on the failure of the child
protective agency to prove the element of impairment or risk
of impairment which was necessary to establish derivative
neglect.
The Court emphasized that there was no evidence establishing
that respondent's biological son was aware of his father's
behavior or that the behavior had any impact on him.
The Court concluded that there had been no actual harm
to the child and that the duration and seriousness of the
underlying neglect was not of sufficient magnitude to support
a derivative finding in the absence of extraneous proof. The
Court emphasized that differences in gender and parentage
between a child who had been directly neglected and children
alleged to be derivatively neglected would not *12 preclude
a derivative finding. Nevertheless, the Court indicated that
these factors could be considered in determining whether a
respondent's conduct placed his other children at risk of harm.
Aft er considering these factors, the Court found that a single
incident of inappropriate conduct by respondent establishing
neglect of the stepdaughter was insufficient to support a
derivative finding of neglect as to respondent's son.
Considering these principles in light of the facts at bar,
the Court concludes that a single incident of inappropriate
conduct by respondent as to his stepdaughter did not provide
a reliable indicator that his two biological children were
placed at a substantial risk of harm sufficient to support a
finding of derivative neglect. ACS introduced no evidence
establishing that respondent's biological children were aware
of their father's behavior or that his inappropriate behavior
had any impact on them. ACS introduced no evidence -expert or otherwise -- to establish that respondent's neglect of
his stepdaughter presented an imminent risk of harm to the
physical, mental or emotional condition of the two younger
children. Additionally, ACS failed to establish that the
duration and magnitude of the underlying neglect evidenced
a fundamental flaw in his understanding of the duties of
parenthood. Even though respondent's neglect of Shyrelle
involved a half-sibling of the younger children that alone did
not demonstrate that his actions inflicted harm or a substantial
risk of harm to the other children. Although respondent
denied the allegations of neglect and appeared to lack insight
into his behavior that was insufficient to fill the evidentiary
gap.
C. Proximity in Time
The third issue is whether the underlying incident is
sufficiently proximate in time to reasonably support the
conclusion that the condition continues to exist. This factor
is considered since it is presumed that the more recent
the underlying misconduct, the more probative it is of
respondent's current ability to provide adequate care to other
children in the home (compare Matter of Baby Boy W., 283
AD2d 584 [2d Dept 2001] [where the subject child was
born two months after the prior incident it was sufficiently
proximate in time to support a finding of derivative neglect];
In re Amber C., 38 AD3d 538 [2d Dept 2007], appeal
denied 8 NY3d 816 [2007] [where the parents admitted
neglecting four of their children and prior findings were
entered nine and seven months prior to the subject child's
birth, the prior incidents were sufficiently proximate in time
to support a finding of derivative neglect]; Matter of Tradale
CC., 52 AD3d 900 [3d Dept 2008] [a derivative finding was
entered where respondent continued to use excessive corporal
punishment to such a degree that her contact with the children
had to be supervised and she failed to cooperate with any of
the services or program that were ordered], with In re Dana
T., 71 AD3d 1376, 1376 - 1377 [4th Dept 2010] [the prior
adjudication of neglect was too remote in time to sustain
a derivative finding where respondent had consented to the
prior finding five years earlier as to her older children based
on the condition of her home and her failure to obtain medical
treatment since child protective authorities had virtually no
contact with respondent during the 2 1/2 years prior to the
birth of the child and were unable to provide testimony
regarding her current living situation or her understanding of
her parental duties and respondent presented witnesses who
testified that the home was clean and that she had attended all
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
9
In re Shyrelle F., Slip Copy (2011)
33 Misc.3d 1232(A), 2011 N.Y. Slip Op. 52193(U)
prenatal appointments for the child at issue]; In re Kadiatou
B., 52 AD3d 388 [1st Dept 2008], lv denied 12 NY3d 701
[2009] [dismissing derivative neglect allegations where the
prior abuse finding was entered six years earlier based on
res ipsa loquitur after the death of respondents' three-monthold baby and an injury to her twin sister nine years earlier
given the lack of proof of respondents' culpability, that it was
remote in time, that respondents complied with the service
plan and obtained services on their own, that respondents'
*13 interactions with children were positive and that the
agency discharged the twin from foster care to respondents'
without court permission]).
In the instant case, ACS alleges that the two younger siblings
were derivatively neglected by respondent during the same
period of time that the neglect of Shyrelle took place. Since
these events allegedly occurred contemporaneously there
is little issue regarding proximity in time. Nevertheless,
since ACS failed to establish a causal connection between
respondent's neglect of Shyrelle and the alleged risk of harm
to the younger children, proximity in time is not dispositive
of whether respondent was able to provide adequate care to
other children in the home.
In reaching this conclusion, the Court has considered that
the finding as to Shyrelle did not involve sexual abuse or a
course of abusive or neglectful behavior. It did not involve
violent acts or multiple victims or acts of maltreatment against
one child while other children were present. It was based an
isolated incident rather than a course of conduct.
In reaching this conclusion, the Court has also considered that
there was no evidence adduced suggesting that respondent's
biological sons were aware of their father's behavior or that
his behavior had any impact on them. Although differences
in gender and parentage between Shyrelle -- who was directly
neglected -- and the two boys -- who were alleged to be
derivatively neglected -- would not preclude a derivative
finding, such factors have been considered in evaluating
whether respondent's misconduct placed his other children at
risk of harm. Since the underlying finding does not provide
a reliable indicator that the half - siblings' physical, mental
or emotional condition was impaired or placed in imminent
danger of becoming impaired, a finding of derivative neglect
cannot stand.
Accordingly, it is
ORDERED, that the petition alleging neglect as to Shyrelle
F. is granted; and it is further
Conclusion
Based upon the nature and duration of respondent's neglect of
his stepdaughter, the Court rejects the assertion that he has a
fundamental defect in his understanding of his parental duties
and obligations, this Court finds that the conditions which led
to the neglect of Shyrelle do not establish imminent risk to
the physical, mental or emotional condition of respondent's
biological children.
In the instant case, there is no evidence of actual or imminent
danger of physical, emotional or mental impairment to
Brandon S. and Justin S. -- let alone an impairment that
was clearly attributable to respondent's unwillingness or
inability to exercise a minimum degree of care toward them.
The duration and magnitude of the original neglect against
Shyrelle, standing alone, does not support the conclusion that
the younger children were at risk.
ORDERED, that the motion is to dismiss the allegations of
neglect as to Brandon S. and Justin S. is granted; and it is
further
ORDERED, that a dispositional hearing shall be conducted
before the Court on November 9, 2011, at 3:30 PM.
DATED:E N T E R:
_________________________
EMILY OLSHANSKY, J.F.C.
FOOTNOTES
Copr. (c) 2015, Secretary of State, State of New York
Footnotes
The Family Court Act § 1012 (g) provides that a “person legally responsible” for a child includes the child's custodian,
1
guardian or any other person responsible for the child's care at the relevant time. Custodian may include any person
continually or at regular intervals found in the same household as the child when the conduct of such person causes
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
10
In re Shyrelle F., Slip Copy (2011)
33 Misc.3d 1232(A), 2011 N.Y. Slip Op. 52193(U)
2
3
or contributes to the abuse or neglect of the child.“ In determining whether a respondent is ”person legally responsible“
under the statute, the court must consider such factors as the frequency and nature of the contact between the child and
the respondent, the nature and extent of control exercised by the respondent over the child's environment, the duration
of respondent's contact with the child and respondent's relationship to the child's parent (In re Yolanda D., 88 NY2d 790
[1996]). A respondent will be deemed a ”person legally responsible“ where, as here, they resided in the same household
as the child at all relevant times and is involved in the child's ongoing care (People v Carroll, 244 AD2d 104 [1st Dept
1998], affd 93 NY2d 564 [1999]; Matter of Johnnie S., 272 AD2d 472 [2d Dept 2000]).
Where allegations of abuse or neglect are established by the testimony of a child, contradictions and inconsistencies
often occur. This fact must be viewed in the context of the entire record. The court must consider whether other evidence
sufficiently corroborates the original allegations. Undue emphasis should not be placed on minor inconsistencies between
the child's trial testimony and her prior statements if her testimony is largely consistent and corroborated by other evidence
(In re Melissa P., 261 AD2d 141 [1st Dept 1999], appeal dismissed 93 NY2d 1041 [1999]; Matter of Rubina A., 308 AD2d
537 [2d Dept 2003] [the child gave credible testimony regarding the abuse and the contradictions in her testimony were
attributable to familial pressure and a reluctance to testify]; In re Brandi U., 47 AD3d 1103 [3d Dept 2008] [the child's
testimony was properly credited despite minor inconsistencies since it corroborated her unsworn out-of-court statements
describing the abuse]; In re Heather S., 19 AD3d 606 [2d Dept 2005] [the child's testimony sufficiently corroborated her
out-of-court descriptions of abuse despite peripheral inconsistencies relating to time-frame]; Matter of Melissa M., 136
Misc 2d 773 [Fam Ct, Suffolk County 1987] [inconsistencies in the child's various out-of-court statements were minor
and did not undermine her credibility]; In re Ida EE., 31 AD3d 923 [3d Dept 2006] [the child's testimony was sufficient to
sustain the allegations of abuse and neglect despite the inconsistencies, where the court had the opportunity to observe
the child as she testified and found her to be credible]).
Family Court Act § 1012 (h) provides that ”impairment of emotional health“ and ”impairment of mental or emotional
condition“ include a ”state of substantially diminished psychological or intellectual functioning in relation to, but not limited
to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting
out or misbehavior, including incorrigibility, ungovernability or habitual truancy; provided, however, that such impairment
must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care
toward the child.“
End of Document
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
11
Matter of Janiyah T., 26 Misc.3d 1208(A) (2010)
906 N.Y.S.2d 780, 2010 N.Y. Slip Op. 50013(U)
Unreported Disposition
26 Misc.3d 1208(A), 906 N.Y.S.2d 780 (Table), 2010
WL 58323 (N.Y.Fam.Ct.), 2010 N.Y. Slip Op. 50013(U)
This opinion is uncorrected and will not be published in
the printed Official Reports.
In the Matter of Janiyah T. Kamiyah C. Children
under the age of Eighteen Alleged to be Neglected
and Abused by Lateek C. Amanda T., Respondents.
NA-00616-7/08
Family Court, Kings County
Decided on January 7, 2010
CITE TITLE AS: Matter of Janiyah T.
ABSTRACT
Parent, Child and Family
Abused or Neglected Child
Derivative Neglect
Janiyah T., Matter of, 2010 NY Slip Op 50013(U). Parent
and Child—Abused or Neglected Child—Derivative Neglect.
(Fam Ct, Kings County, Jan. 7, 2010, Olshansky, J.)
APPEARANCES OF COUNSEL
Kafui Bediako, Esq.
Special Assistant Corporation Counsel
New York City Children's Services
330 Jay Street (12th Floor)
Brooklyn, New York 11201
Heidi Connolly, Esq.
for respondent mother
419 Lafayette Street (3d floor)
New York, New York 10003
Cindy Mendelson, Esq.
for respondent father / person legally responsible
32 Court Street (Suite 1903)
Brooklyn, New York 11242 Laura Maslauskas, Esq.
Attorney for the Children
Legal Aid Society
Juvenile Rights Project
111 Livingston Street
Brooklyn, New York 11201
OPINION OF THE COURT
Emily M. Olshansky, J.
Amanda T. (hereinafter “respondent mother”) is the mother
of the two subject children, Janiyah T., born July 22, 2004 and
Kamiyah C., born September 27, 2007. Lateek C. (hereinafter
“respondent father”) is the father of Kamiyah and a person
legally responsible for Janiyah. On January 30, 2007, at
approximately 11:30 PM, New York City Children's Services
(hereinafter “NYCCS”) removed the subject children from
the care of the respondents without a court order pursuant to
Family Court Act § 1021.
On February 1, 2008, NYCCS filed abuse petitions against
both respondents. The petitions allege that, on or about
January 30, 2007, respondent father inflicted excessive
corporal punishment on Janiyah causing marks, bruises
and two black eyes. Further, the petitions allege that in
November 2007, respondent father hit Janiyah with a belt
in the face causing bruising. In addition, the petitions allege
that respondent mother failed to provide adequate care and
supervision for Janiyah by allowing respondent father to
remain in the home with the children after November 2007
when she learned that he had beaten Janiyah. Finally, the
petitions allege that Kamiyah is a derivatively abused and
neglected child by virtue of the abuse of Janiyah.
On the day the petitions were filed, this Court granted the
request of NYCCS for a remand of the children. Thereafter,
respondent mother requested a Family Court Act § 1028
hearing seeking the immediate return of the children. The
matter was resolved without a hearing by JHO Staton and the
children were paroled to respondent mother on the condition
that she comply with Family Preservation Program (FPP)
services, complete parenting skills and anger management
programs and enforce the temporary order of protection
entered against respondent father. The temporary order
of protection excluded respondent father from the home,
directed that he not commit any family offenses against either
child and that he stay away from Janiyah. He was granted
supervised visitation with Kamiyah.
LEGAL ANALYSIS
Respondent was a Person Legally Responsible for the Care
of the Child Janiyah
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
1
Matter of Janiyah T., 26 Misc.3d 1208(A) (2010)
906 N.Y.S.2d 780, 2010 N.Y. Slip Op. 50013(U)
The Family Court Act provides that a “person legally
responsible” for a child “includes the child's custodian,
guardian, or any other person responsible for the child's
care at the relevant time. Custodian may include any
person continually or at regular intervals found in the
same household as the child when the conduct of such
person causes or contributes to the abuse or neglect of the
child” (Family Ct Act § 1012 (g) ) . A “person legally
responsible” is a parent or one acting in *2 loco parentis
(Matter of Jessica C., 132 Misc 2d 596, 600 (Fam Court,
Queens County1986) ) .
1
In determining whether a respondent is “person legally
responsible” under the statute, the court must consider such
factors as the frequency and nature of the contact between
the child and the respondent, the nature and extent of control
exercised by the respondent over the child's environment,
the duration of the respondent's contact with the child, and
respondent's relationship to the child's parent (In re Yolanda
D., 88 NY2d 790 (1996) ) . A respondent will be deemed a
“person legally responsible” even if he is not a parent, where,
as here, he periodically resided in the same household as
the child and was otherwise found at regular intervals in the
same home and was involved in the ongoing care of the child
(Matter of Johnnie S., 272 AD2d 472 (2d Dept 1998) ; Matter
of Devon W., 9 AD3d 830 (4th Dept 2004) ) .
In the instant case, Janiyah resided with respondent father
for extended periods prior to the time the petitions were
filed. During those periods, he was repeatedly found in the
same household as the child and was involved in Janiyah's
daily care, supervision and discipline. He cared for her when
respondent mother was not home. She called him “Daddy.”
Respondent father testified that during 2007, the parties
resided together with both children at the homes of various
family members, including the maternal grandmother and the
paternal grandfather. The Court finds these facts sufficient
to establish that respondent father was a “person legally
responsible” for the care of Janiyah.
2.NYCCS has Established a Prima Facie Case of Neglect,
not Abuse, against Respondent Father / Person Legally
Responsible as to Janiyah
A parent or person legally responsible is liable for the abuse
of a child pursuant to Family Court Act § 1012 (e) (i) or (e)
(ii) , when either they inflict or allow to be inflicted upon
such *3 child, physical injury by other than accidental means
which causes or creates a substantial risk of death, or serious
or protracted disfigurement, or protracted impairment of
physical or emotional health or protracted loss or impairment
of the function of any bodily organ, or create or allow to
be created a substantial risk of physical injury to such child
by other than accidental means which would likely cause
death or serious or protracted disfigurement or the protracted
impairment of physical or emotional health or the protracted
loss or the impairment of the function of any bodily organ.
The Family Court Act defines a neglected child as “one whose
physical, mental or emotional condition has been impaired or
is in imminent danger of becoming impaired as a result of
the failure of (respondent) to exercise a minimum degree of
care” (Family Ct Act § 1012 (f) (i) ) . The physical impairment
referred to in FCA § 1012 (f) (i) involves a lower threshold
of resultant harm than the serious physical injury required in
abuse cases (In re Joshua R., 47 AD3d 465 (1st Dept 2008)
, lv denied 11 NY3d 703 (2008) (findings of abuse were not
supported by the evidence as respondent did not inflict an
injury to his son which caused or created a substantial risk
of death or protracted impairment of physical or emotional
health, however, neglect was established where, after the
child refused to eat, respondent shoved the food into his
mouth, causing him to vomit, and then slapped him in the face
with enough force to bloody his nose and bruise his eye) ;
Matter of Colleen P., 148 AD2d 782 (3d Dept 1985) ; Matter
of Maroney v Perales, 102 AD2d 487 (3d Dept 1984) ) .
The neglect statute establishes a minimum baseline of proper
care for children and under this standard parental behavior
is evaluated objectively according to how a reasonable and
prudent parent would have acted. A parent must exercise
this minimum degree of care so as not to place the child
at imminent risk of impairment (Matter of Jessica YY., 258
AD2d 743 (3d Dept 1999) ) . In order to establish neglect,
NYCCS must show by a preponderance of the credible
evidence that the child has been harmed or threatened with
harm. In the absence of such proof, the statutory requirement
of impairment or imminent danger of impairment will not be
satisfied and neglect will not be established (see Matter of
William EE., 157 AD2d 974 (3d Dept 1990) ) .
NYCCS is not required to prove a course of conduct. It
is well-settled that a single incident may be sufficient to
establish neglect where a parent fails to exercise reasonable
care and as a result the child's physical, mental or emotional
condition has been impaired or is in imminent danger of
becoming impaired (In re Pedro C., 1 AD3d 267 (1st Dept
2003) (rejecting respondent's contention that a single incident
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
2
Matter of Janiyah T., 26 Misc.3d 1208(A) (2010)
906 N.Y.S.2d 780, 2010 N.Y. Slip Op. 50013(U)
is insufficient to establish neglect where the parent's judgment
was impaired and the child was exposed to a risk of substantial
harm as a result) ; In re Sheneika V., 20 AD3d 541 (2d
Dept 2005) (although a single incident may suffice to sustain
a finding of neglect where the father choked the child in
response to a dispute over washing the dishes, here there was
proof of a pattern of the father's use of excessive corporal
punishment) ) .
This is particularly true where the parent was aware or should
have been aware of the intrinsic danger of their actions and
the situation (In re Lester M., 44 AD3d 944 (2d Dept 2007)
; Matter of Victoria CC., 256 AD2d 931 (3d Dept 1998) (a
single incident may be sufficient to constitute child neglect
and an isolated accidental injury may constitute neglect if
the parent was aware or should have been aware of the
intrinsic danger of the situation and leaving a nine-month-old
child unattended in a bathtub is intrinsically dangerous and
manifests an appalling lack of judgment that placed the child
in substantial risk of harm) ) .
Respondent Father Neglected Janiyah
In the instant case, the credible evidence adduced during
fact-finding established that respondent father hit Janiyah
on two separate occassions, twice leaving a bruise or other
marks on her face. Nevertheless, since the unimpeached
expert testimony of Dr. Hosneara Masub, M.D. established
that the dark marks around Janiyah's eyes were not the
result of inflicted trauma -- but instead an allergic reaction -NYCCS has failed to establish that respondent father inflicted
injuries which “created a substantial risk of death, or serious
or protracted disfigurement, or protracted impairment of
physical or emotional health or protracted loss or impairment
of the function of any bodily organ.” The evidence does,
however, establish the lower threshold of harm required to
sustain a finding of neglect.
It is undisputed that in November 2007, respondent father hit
Janiyah with a belt in the face causing bruising. According
to respondent father's testimony, the child, then three years
old, was disrespectful and unresponsive to his efforts to speak
with her. Nevertheless, he testified that he did not mean to
hit her in the face and that he only meant to hit her with the
belt on her hand. He stated that he hit her in the face with the
belt when she moved. Apparently, he did not expect that she
would move.
It is the view of this Court, that these actions were inconsistent
with how a reasonable and prudent parent would have acted
under the circumstances and that, as a result, the child's
physical, mental and emotional condition where impaired
or placed at imminent risk of impairment. A reasonably
prudent parent under these circumstances would not have
struck a three-year-old child with a belt with sufficient force
to leave marks. Even if the Court were to accept respondent's
assertions that he hit the child with the belt in the face by
accident and that he only meant to hit her on the hand, the
result would be the same since the force used was excessive
and it resulted in marks on the child's face and fear of
respondent father. In addition, the risk that a three year old
would move when she is threatened with a belt and therefore
sustain bruising on some other part of her body is something
that respondent knew or should have known was one of the
inherent dangers of hitting a small child with a belt.
Janiyah also described a second incident when respondent
father again hit her in the face. 2 Janiyah told the NYCCS
caseworker that the second incident occurred on January 30,
2008. She said that during the second incident, respondent
father hit her in the face, legs and back. The child's out of court
statements are adequately corroborated by the caseworker's
testimony describing the *4 bruise on the child's nose.
The statements are further corroborated by the caseworker's
testimony about the child's fearful and distressed reaction
when she realized that they were driving near respondent
father's home.
Janiyah's statements are also corroborated by the testimony
of Dr. Hosneara Masub, M.D. Dr. Masub was subpeoned
by NYCCS, however, after she appeared in court and was
interviewed by counsel, NYCCS decided not to actually call
her. Instead, Dr. Masub was called as respondent father's
witness and without objection was qualified as an expert in
pediatric medicine. She testified that she saw the child on
February 12, 2008. She testified that she observed the mark on
Janiyah's face as well as the dark circles around her eyes. She
testified, however, that in her opinion, within a reasonable
degree of medical certainty, the dark marks under the child's
eyes were the result of an allergic reaction -- not inflicted
trauma. According to Dr. Masub, the other mark on the child's
face was not the result of an allergic reaction. Her testimony
was unrebutted.
Respondent father asserts that Dr. Masub's testimony
undermines the child's credibility and supports his claim
that the second beating did not occur. The Court rejects
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3
Matter of Janiyah T., 26 Misc.3d 1208(A) (2010)
906 N.Y.S.2d 780, 2010 N.Y. Slip Op. 50013(U)
this assertion. Although Dr. Masub's testimony establishes
that the January 30, 2008 incident did not cause the dark
circles under the child's eyes, it did not establish that the
incident never occurred. In fact, the doctor's testimony
provides additional corroboration for the child's statement
that respondent father hit her and caused a mark on her face.
In the Court's view, these incidents are sufficient to establish
by a preponderance of the evidence that Janiyah's physical,
mental or emotional condition were impaired or placed at
imminent danger of impairment sufficient to establish neglect
based on excessive corporal punishment. Accordingly, the
allegations of abuse are dismissed and pursuant to Family
Court Act § 1051 (b) , 3 the Court amends the petitions to
conform to the proof and enters a finding of neglect pursuant
to Family Court Act § 1012 (f) (i) (B) .
Respondent Mother Neglected Janiyah
In the instant case, respondent mother was out of the home
in November 2007, when respondent father hit three-yearold Janiyah in the face with a belt leaving a mark. Upon
her return home, both respondent father and Janiyah told her
about what happened. Despite that knowledge, she failed to
take any action to protect Janiyah and ensure that respondent
father did not strike her again.
Furthermore, when respondent mother was first interviewed
by NYCCS, she denied that the 2007 incident had taken
place. Likewise, when Janiyah was first interviewed, she
was reluctant to reveal what had happened. She told the
caseworker that it was “a secret” and that “Mommy told me
not to tell the truth.” Respondent mother did not testify at
the fact-finding hearing. Accordingly, the Court draws the
strongest negative inference against her that the evidence will
permit, that is, that *5 she realized Janiyah was at risk when
she was with respondent father but failed to immediately take
the necessary steps to protect her (Matter of Cantina B., 26
AD3d 327 (2d Dept 2006) ) .
Since the allegations of abuse by respondent father have
been dismissed, the allegations that respondent mother
failed to protect Janiyah from abuse are likewise dismissed.
Nevertheless, pursuant to Family Court Act § 1051 (b) , the
Court amends the petitions to conform to the proof and enters
a finding of neglect against respondent mother pursuant to
Family Court Act § 1012 (f) (i) (B) based on her failure to
take appropriate steps after the November 2007 incident to
protect her daughter from future acts of excessive corporal
punishment inflicted by respondent father.
NYCCS has Established a Prima Facie Case of Derivative
Neglect against Respondent Father as to Kamiyah but not
against Respondent Mother
Family Court Act § 1046 (a) (i) provides that “proof of the
abuse or neglect of one child shall be admissible evidence
on the issue of the abuse or neglect of any other child of ...
the respondent.” Even in the absence of direct evidence of
actual abuse or neglect of a second child, a derivative finding
may be made where the evidence as to the directly abused
or neglected child demonstrates such an impaired level of
parental judgment as to create a substantial risk of harm for
any child in their care, thereby making such a child neglected
under Family Court Act § 1012 (f) (i) (B) (Matter of Christina
Maria C., 89 AD2d 855 (2d Dept 1982) ; Matter of Dutchess
County Dept. of Social Services on Behalf of Noreen K., 242
AD2d 533 (2d Dept 1997) ) .
Nevertheless, although the statute requires that evidence as
to the neglect of one child be considered on the issue of the
neglect of another child in the home, such evidence is not
conclusive and does not establish a prima facie case of neglect
of another child in the parent's care (In re Abigail S., 21 AD3d
380 (2d Dept 2005) ; Matter of Rasheda S., 183 AD2d 770
(2d Dept 1992) ) . In other words, the fact that one child has
been neglected, standing alone, is insufficient without more to
support a finding that the child's sibling is also neglected (see
e.g., Matter of Randy AA., 265 AD2d 690 (3d Dept 1999) ) .
The determinative factor is whether the nature of the neglect,
notably its duration and the circumstances surrounding
its commission evidences such a fundamental flaw in
respondent's understanding of the duties of parenthood that
it can reasonably be concluded that the condition still exists
(Matter of Dutchess County Dept. of Social Services on
Behalf of Noreen K., 242 AD2d 533, supra) . Unless
the underlying finding provides a reliable indicator that
the sibling's physical, mental or emotional condition is
in imminent danger of becoming impaired a finding of
derivative neglect cannot stand (Matter of Suzanne RR., 35
AD3d 1012 (3d Dept 2006) ) . In considering whether to
enter a derivative finding, the courts have considered and
attempted to balance a number of somewhat overlapping
factors. Included among them are the following:
Whether the Underlying Neglect was Based on a Single
Incident or a Course of Conduct
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Matter of Janiyah T., 26 Misc.3d 1208(A) (2010)
906 N.Y.S.2d 780, 2010 N.Y. Slip Op. 50013(U)
This factor is considered since it is presumed that the more
longstanding the underlying misconduct, the more probative
it is of respondent's ability to provide adequate care to any
child in *6 the home (compare Matter of Amanda R.,
209 AD2d 702 (2d Dept 1994) (no basis for a derivative
finding with respect to a sibling of the target child since
a single incident of child maltreatment standing alone does
not establish a prima facie case of derivative neglect) ; In
re Samuel Y., 270 AD2d 531 (3d Dept 2000) (no basis for
a derivative neglect finding with respect to a sibling of the
target child since the single incident when the parent struck
the target child in the face was insufficient to prove that the
parent manifested such an impaired level of judgment as to
create a substantial risk of harm for any child in respondent's
care) ) , with Matter of Eli G., 189 AD2d 764 (2d Dept
1993) (respondent's abuse of his son by beating him with
an electrical cord was sufficient to establish derivative abuse
where the beating was not an isolated incident but a pattern
of discipline that the respondent felt was justified) ; In re
Vincent L., 46 AD3d 395 (1st Dept 2007) , lv denied 10
NY3d 706 (2008) (respondent's sexual abuse of four children
under the age of 14 with whom he had a paternal relationship
over the course of three years demonstrated such an impaired
level of parental judgment as to create a substantial risk
of harm to the remaining children in his care) ; Matter of
Jasmine A., 18 AD3d 546 (2d Dept 2005) (evidence that
one child was sexually and physically abused and that two
of her brothers were physically abused constituted sufficient
evidence to support a finding of derivative neglect as to the
remaining children since respondent's conduct demonstrated
a fundamental defect in his understanding of parental duties
relating to any other children in his care) ; Matter of the
Dutchess County Department of Social Services o /b /o
Douglas E., 191 AD2d 694 (2d Dept 1993) (respondent's
admission that he repeatedly sexually abused his 10-yearold daughter over a period of five or six months supported
a derivative neglect finding as to respondent's son) ; Matter
of Andrew B., 49 AD3d 638 (2d Dept 2008) , lv denied
10 NY3d 714 (2008) (parent's repeated fabrications as to
the child's medical condition, which required unnecessary
medical treatments and the withdrawal of the child from
school, demonstrated fundamental flaws in her understanding
of the duties of parenthood sufficient to warrant a finding
of derivative neglect with respect to the other child in the
home) ) .
How Serious were the Underlying Acts of Abuse or Neglect
and what Role did the Respondent Play
This factor is considered since it is assumed that the more
serious the underlying misconduct, the more probative it is of
respondent's ability to provide adequate care to any child in
the home. Accordingly, where the underlying finding is based
on acts of physical or sexual abuse by the parent, derivative
findings are frequently made irrespective of whether or not
there is evidence of direct abuse or neglect of other children
in the home (see e.g., In re Christopher W., 299 AD2d 268
(1st Dept 2002) (the nature and severity of the direct abuse,
involving a bathtub scalding of a child resulting in death
warranted a finding of derivative abuse even absent evidence
of direct abuse of the other children) ; Matter of Jorge S., 211
AD2d 513 (1st Dept 1995) lv denied 85 NY2d 810 (1995)(an
unexplained fracture sustained by one child supported a
finding of derivative neglect as to other children in the
home) ; Matter of Christina Maria C., 89 AD2d 855 (2d Dept
l982) (one-year-old was found to be a derivatively neglected
based upon the physical abuse of the child's seven-year-old
half-brother) ; Matter of Rasheda S., 183 AD2d 770 (2d
Dept 1992) (the sexual abuse of a stepdaughter supported a
derivative finding of neglect as to an eleven-year-old daughter
since the direct abuse demonstrated a fundamental defect
in respondent's understanding of the duties of parenthood) ;
Matter of the Dutchess County Department of Social Services
o /b /o Douglas E., 191 AD2d 694 (2d Dept 1993) (direct
evidence is not necessary to sustain a derivative neglect *7
finding as to respondent's son where he admitted that he
repeatedly sexually abused his 10-year-old daughter) ) .
Where the underlying finding is based on excessive corporal
punishment, derivative findings are made if the duration
and seriousness of the original incident evidence such a
fundamental flaw in respondent's understanding of the duties
of parenthood that it can reasonably be concluded that the
condition still exists (In re Joshua R., 47 AD3d 465 (1st
Dept 2008) , lv denied 11 NY3d 703 (2008) (findings of
derivative neglect entered where, after the child refused to
eat, respondent father shoved the food into his mouth causing
vomiting and then slapped him in the face causing a bloody
nose and bruised eye) ; Matter of Eli G., 189 AD2d 764 (2d
Dept 1993) (respondent's beating of his son with an electrical
cord resulting in bruises and lacerations was sufficient to
establish derivative abuse where the beating was not an
isolated incident but a pattern of discipline that the respondent
felt was justified) ; Matter of Pierre M., 239 AD2d 262
(1st Dept 1997) (respondent hitting her 15-year-old daughter
in the head with a wooden table leg with a nail protruding
causing lacerations requiring stitches supported a derivative
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5
Matter of Janiyah T., 26 Misc.3d 1208(A) (2010)
906 N.Y.S.2d 780, 2010 N.Y. Slip Op. 50013(U)
finding) ; Matter of Dareth O., 304 AD2d 667 (2d Dept 2003)
).
4
Whether the Conditions Leading to the Underlying Finding
have Changed and Whether the Parent has Completed all
Recommended Services
Since the determinative factor is whether the underlying
abuse or neglect evidences a fundamental flaw in respondent's
understanding of the duties of parenthood sufficient to
support the conclusion that a risk to the other children
continues to exist, another factor the courts have *8
considered is whether the parent has suceeded in overcoming
the problems leading to the original finding (Matter of Jeremy
H., 193 AD2d 799 (2d Dept 1993) (a four-year-old sex abuse
finding justified a derivative finding where respondent had
still not addressed the original problem) ; In re Krystal J., 267
AD2d 1097 (4th Dept 1999) (a derivative finding of neglect
was proper where respondent failed to address the problems
that led to the original finding) ; Matter of Amber C., 38
AD3d 538 (2d Dept 2007) , appeal dismissed, 11 NY3d 728
(2008) (prior findings of neglect entered before the subject
child's birth supported a finding of derivative neglect since
the parents failed to complete the programs required by the
prior orders of disposition) ; Matter of Tradale CC., 52 AD3d
900 (3d Dept 2008) (a derivative finding was entered where
respondent continued to use excessive corporal punishment
to such a degree that her contact with the children had to be
supervised and she failed to obtain mental health counseling
or complete an alcohol treatment program or parenting classes
as ordered) ) .
In considering whether to enter a finding of derivative neglect
against a parent who failed to adequately protect a child from
another parent's use of corporal punishment, courts have also
considered whether the conditions leading to the underlying
finding have changed and whether the parent has completed
all recommended services (compare Matter of Nina A. M.,
189 AD2d 1010 (3d Dept 1993) (having taken appropriate
steps to protect the children from respondent father's abusive
behavior and rehabilitate herself by separating from him,
moving to a new city, starting a new life and undergoing
psychological counseling, respondent's conduct and actions
were those of a reasonable and prudent parent) , with Matter
of Brent HH., 309 AD2d 1016 (3d Dept 2003) , lv denied 1
NY3d 506 (2004) )
(where respondent grandmother's live-in boyfriend chased
one child from the home seriously injuring him by breaking
his arm and kicking the child's mother, a finding of derivative
neglect was made against respondent grandmother with
respect to other children in her care since she minimized the
boyfriend's conduct, took no steps to protect the children from
further violence and saw no need for services) ) .
Another related issue is whether the underlying incident
is proximate in time. This factor is considered since it is
presumed that the more recent the underlying misconduct,
the more probative it is of respondent's current ability to
provide adequate care to another child in the home (Matter
of Maureen G., 103 Misc 2d 109 (Fam Ct, Richmond County
1980) (proof of abuse or neglect must be so proximate in
time that it can reasonably be concluded that the condition
is a current one that still exists) ; Matter of Baby Boy W.,
283 AD2d 584 (2d Dept 2001) (a derivative finding was
made where the subject child was born two months after the
prior incident) ) . Nevertheless, the dispositive issue remains
the respondent's current parenting abilities. Accordingly,
proximity in time is less relevant than whether--during the
intervening period-- respondent has overcome the problems
leading to the underlying finding (In re Summer Y.-T., 32
AD3d 212 (1st Dept 2006) (a three-year-old finding did not
support a derivative neglect finding where the parents were
participating in mandated counseling services and adequately
preparing for the youngest child's birth) ; In re Kadiatou B., 52
AD3d 388 (1st Dept 2008) , lv denied 12 NY3d 701 (2009) )
(a seven-year-old finding based on the death of a threemonth-old did not support a derivative finding given the
length of time that had passed, the positive changes in the
parents' behavior observed by social workers and the agency
caseworker and NYCCS's discharge of one of the children
from foster care without a court order since that decision
“clearly manifest the Agency's *9 belief that the parents
have overcome whatever problems existed in the past, are
capable of caring for a child and are not exhibiting any
fundamental defect in judgment”) ) .
Whether there is Direct Evidence that the Other Children in
the Home were Actually Harmed or Placed at Imminent Risk
of Harm
Since the issue is whether a risk to the other children continues
to exist, another factor the courts have considered is whether
there is evidence that those children were actually harmed or
placed at imminent risk of harm. Addessing this question a
number of courts have declined to enter derivative findings
concluding that there was no evidence regarding the other
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Matter of Janiyah T., 26 Misc.3d 1208(A) (2010)
906 N.Y.S.2d 780, 2010 N.Y. Slip Op. 50013(U)
children and that the duration and seriousness of the original
neglect did not support the conclusion that they were at
risk (Matter of Justin O., 28 AD3d 877 (3d Dept 2006)
(mother's failure to protect one child from excessive corporal
punishment did not establish that the other children were
derivatively neglected since there was no evidence that any
other child was struck or that their physical, mental or
emotional condition was impaired or in danger of becoming
impaired as a result of the incident) ; Matter of Daniella HH.,
236 AD2d 715 (3d Dept 1997) (no derivative neglect where
the underlying finding was based on the medical neglect
of an infant who had health problems from birth and was
admitted to the hospital suffering from failure to thrive) ; In
re Jocelyne J., 8 AD3d 978 (4th Dept 2004) (no derivative
neglect where the underlying finding was based on the fact
that respondents, having raised a child as their own, sent her
back to Haiti without making arrangements for her to return
since those actions did not provide a reliable indicator that
the second child was at substantial risk of harm, the child's
attorney opposed a derivative finding and respondents cared
for the second child appropriately) ; In re Julia BB., 42 AD3d
208 (3d Dept 2007) , lv denied 9 NY3d 815 (2007) (even
if the “target” child had been abused no derivative finding
should have been entered where there was no evidence that
the other children's physical, mental or emotional well-being
was impaired or in danger of becoming impaired, the other
children thrived in respondents' care and respondents were
attentive and loving parents who attended all recommended
evaluations and examinations and ensured that the children's
immunizations were kept up to date) ; Matter of Andrew B.L., 43 AD3d 1046 (2d Dept 2007) (no derivative neglect
in the absence of evidence that the mother used excessive
corporal punishment against the other children) ; In re
Shawndel M., 33 AD3d 1006 (2d Dept 2006) (although the
mother's conduct in encouraging the child to decline medical
treatment and leave the hospital, placed the child in imminent
danger of impairment, the finding of derivative neglect was
unsupported since there was no showing that respondent's
actions placed the sibling at imminent risk) ) .
Other courts have concluded that a finding of derivative
abuse or neglect is warranted without direct evidence of
actual maltreatment of the other children in the home, finding
that the duration and circumstances surrounding the original
finding evidence such a fundamental flaw in respondent's
understanding of the duties of parenthood as to support the
conclusion that any child in their care would be at imminent
risk of harm (see e.g., In re Ramsay M., 17 AD3d 678 (2d
Dept 2005) (the sexual abuse of one child by respondent was
sufficient to establish that the other child was derivatively
neglected even in the absence of direct evidence of actual
abuse or neglect of the second child, since the evidence as
to the directly abused child demonstrated such an impaired
level of parental judgment as to create a substantial risk of
harm for any child in their care) ; In re Christopher W.,
299 AD2d 268 (1st Dept 2002) (the nature and severity
of the direct abuse--a bathtub scalding resulting in death-warranted a finding of derivative abuse, even absent evidence
*10 of direct abuse of the other children) ; Matter of
the Dutchess County Department of Social Services o /b /o
Douglas E., 191 AD2d 694 (2d Dept 1993) (direct evidence
is not necessary to sustain a derivative neglect finding as to
respondent's son where he repeatedly sexually abused and
sodomized his 10-year-old daughter) ; Matter of Eli G., 189
AD2d 764 (2d Dept 1993) (respondent's beating of his son
with an electrical cord causing bruises and lacerations was
sufficient to establish derivative abuse even in the absence
of direct evidence of abuse of the other children where the
beating was not an isolated incident and respondent felt his
actions were justified) ; In re Kristina R., 21 AD3d 560 (2d
Dept 2005) , lv denied 5 NY3d 717 (2005) (even in the
absence of direct evidence of neglect of the second child, a
derivative finding should be made where the evidence as to
the directly neglected child demonstrates such an impaired
level of parental judgment as to create a substantial risk of
harm for any child in their care) ) .
The Instant Case
Application of these factors to the case at bar, leads this Court
to conclude that respondent father derivatively neglected
Kamiyah, although respondent mother did not. In reaching
this conclusion, the Court has considered each of the factors
outlined above in light of the testimony and documentary
evidence introduced.
First, the Court has considered that the underlying neglect
is based on acts of commission by respondent father.
Second, the Court has considered that the excessive corporal
punishment inflicted by respondent father upon the threeyear-old subject child was fairly serious and in response to
minor infractions. Third, the Court has considered that the
punishment inflicted by respondent father was not an isolated
incident but a pattern that he believed was justified. During
the fact-finding, he testified that he struck the child because
“children should not be disrespectful of adults” and “that was
how I was brought up.” In the Court's view, he failed to
take full responsibility for his actions. Instead, he blamed the
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Matter of Janiyah T., 26 Misc.3d 1208(A) (2010)
906 N.Y.S.2d 780, 2010 N.Y. Slip Op. 50013(U)
child and continued to believe that his actions were justified.
Forth, although the underlying finding is based on incidents
that occurred in January 2008 and November 2007 -- 24
and 21 months prior to the conclusion of the fact-finding
hearing -- respondent father introduced no evidence of his
rehabilitation. Indeed, despite the passage of time, respondent
father still has not addressed -- let alone overcome -- the
problems that led to the filing of the original petition. In
fact, at the time that the fact-finding concluded, he had not
even started parenting skills or anger management -- let alone
completed them.
It is the view of this Court that the duration, seriousness
and other circumstances surrounding the original neglect
evidence a fundamental flaw in respondent father's
understanding of the duties of parenthood to the extent that
it can reasonably be infered that the conditions that led to
the underlying incident still exist. Accordingly, even without
direct evidence of neglect as to Kamiyah, the Court finds
that her physical, mental or emotional condition are at risk of
impairment while she is in the care of respondent father.
In contrast, NYCCS has failed to introduce sufficient
evidence to establish a prima facie case of derviative neglect
against respondent mother. In reaching this conclusion,
the Court has considered that the underlying neglect by
respondent mother is not based her physical or sexual abuse
of the child; nor is it based on her inflicting excessive corporal
punishment. *11
In addition, the Court has considered that the underlying
neglect finding against respondent mother is not based on a
course of conduct. Instead, it is based on a limited incident
when she failed protect Janiyah from further acts of corporal
punishment despite her knowledge of the November 2007
incident.
Moreover, the Court has considered that respondent mother
has fully cooperated with services. In fact, by April 2009, she
had completed a 12-week parenting skills program and a 12week anger management program at Community Counseling
and Mediation. On October 12, 2009, after respondent father
came to her home in violation of the Court's order, respondent
mother contacted the police and thereafter sought an order of
protection against him. By October 28, 2009, she had fully
complied with FPP services.
In other words, the circumstances surrounding the original
neglect do not evidence a fundamental flaw in respondent
mother's understanding of the duties of parenthood. Although
respondent mother's conduct toward her daughter Janiyah fell
below a minimum degree of care when she failed to take
action to protect her after the November 2007 incident, her
conduct on that occasion is not a reliable indicator that any
other child in her care is at imminent risk of impairment.
Indeed, the evidence adduced is to the contrary and the Law
Guardian supports the dismissal of the derivative allegations.
Finally, the Court rejects any suggestion that respondent
mother's failure to testify requires a different result. Although
her failure to testify warrants the drawing of the strongest
negative inference that the evidence will allow (Matter of
Antonio NN., 28 AD3d 826 (3d Dept 2006) ; Matter of Evan
Y., 307 AD2d 399 (3d Dept 2003) ) , that inference cannot
provide a missing element of proof where it otherwise does
not exist (Matter of Kayla F., 39 AD3d 983 (3d Dept 2007)
; In re Jared X.X., 276 AD2d 980 (3d Dept 2000) ) . In
the instant case, the mother's failure to testify is insufficient
to establish derivative neglect since the underlying finding
does not provide a reliable indicator that Kamiyah's physical,
mental or emotional condition is in imminent danger of
becoming impaired.
For each of the forgoing reasons, it is
Further, the Court has considered that respondent mother's
circumstances have changed significantly during the last two
years. During that time, respondent mother has separated
from respondent father and cooperated with all orders entered
by this Court. The children have been home with her since
March 12, 2008. Since then, the children have been well cared
for and there have been no further incidents. The children
have been described as clean and well-dressed. They have had
no bruises or other signs of maltreatment. They have reported
that their mother takes good care of them.
ORDERED, that pursuant to Family Court Act § 1051 (b) , the
petitions are amended to conform to the proof, the allegations
of abuse are dismissed, and a finding of neglect is entered
against respondent father based on acts of excessive corporal
punishment against the subject child Janiyah; and it is further
ORDERED, that pursuant to Family Court Act § 1051
(b) , the petitions are amended to conform to the proof,
the allegations of abuse are dismissed, and a finding of
neglect is entered against respondent mother for her failure
to take appropriate steps after the November 2007, incident
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8
Matter of Janiyah T., 26 Misc.3d 1208(A) (2010)
906 N.Y.S.2d 780, 2010 N.Y. Slip Op. 50013(U)
to protect her daughter from future acts of excessive corporal
punishment; and it is further *12
ORDERED, that the subject children are released to
respondent mother under NYCCS supervision October 28,
2010; and it is further
ORDERED, a finding of derivative neglect is entered against
respondent father with respect to Kamiyah; and it is further
ORDERED, that the allegations of derivative neglect as to
respondent mother regarding Kamiyah are dismissed; and it
is further
ORDERED, that respondent mother shall maintain suitable
housing and a verifiable means of support; and it is further
ORDERED, that respondent mother shall enforce the
temporary order of protection against respondent father which
excludes respondent father from the home, directs that he not
commit any family offenses against her or the children and
directs that he stay away from both of the children except for
court-ordered visitation with Kamiyah.
DATED:January 7, 2010E N T E R:
________________________
EMILY M. OLSHANSKY, J.F.C.
FOOTNOTES
Copr. (c) 2015, Secretary of State, State of New York
Footnotes
In 1972, Family Court Act § 1012 (g) was enacted (L 1972, ch 1015, § 2) , expanding the meaning of a “person legally
1
2
3
4
responsible,” to include the child's custodian, guardian, any other person responsible for the child's care at the relevant
time. According to the legislative history, the goal of the new definition was to “give the Family Court jurisdiction over
cases in which a parent's paramour is responsible for the abuse or neglect of a child” (Matter of Jessica C., 132 Misc 2d
596, 600 (Fam Court, Queens County1986) ; Matter of Roman (94 Misc 2d 796, 800-801 (Fam Court, Onondaga County)
) . “The primary effect of the supplemental definition is to authorize child protective petitions against paramours” (Matter
of R. Children v Waleska M., 195 AD2d 507, 509 (2d Dept 1993) , appeal denied 82 NY2d 660 (1993) , citing Besharov,
Practice Commentary, McKinney's Cons. Laws of NY, Book 29A, Family Court Act § 1012, at 268) . “As non-conventional
living arrangements become increasingly prevalent, it became necessary to give the children in those situations the same
protection as children in the more traditional family unit ... The amendment was designed to promote the original purpose
of assuring 'that the home satisfies at least the minimal requirements of a suitable place for a child to grow.' ... The
1972 amendment to the act was a rational response to a changing social environment” (Matter of Roman, 94 Misc 2d
at 800-801) ) .
A previous statement made by the child relating to the allegations of abuse or neglect is admissible in evidence (Family
Court Act § 1046 (a) (vi) ) . However, the child's previous statements cannot be the sole basis for an adjudication of abuse
or neglect. They must be corroborated before the court can rely on them (Id.) . The child's statements can be corroborated
by any admissible evidence that tends to confirm them (see Matter of Margaret W., 83 AD2d 557 (2d Dept 1981) , lv
denied 54 NY2d 609 (1981) ) . The Family Court has considerable discretion to decide whether the child's out of court
statements describing incidents of abuse or neglect have, in fact, been reliably corroborated and whether the record as
a whole supports a finding (see Matter of Candace S., 38 AD3d 786 (2d Dept 2007) , lv denied 9 NY3d 805 (2007) ) .
Family Court Act § 1051 (b) provides that if the proof does not conform to the specific allegations of the petition, the
court may amend the allegations to conform to the proof; provided, however, that in such case, respondent shall be given
reasonable time to prepare to answer the amended allegations.
A related issue is whether the underlying finding against the parent was based on acts of commission or acts of omission.
This question has been considered by some courts since it is assumed that a parent who is directly responsible for
causing harm to a child, is less able to provide adequate care to another child in the home than one who failed to intervene
and protect a child from harm or the imminent risk of harm by another. It is the view of certain commentators, that
derivative findings are more appropriate against parents who were directly responsible for inflicting harm. “Application of
the derivative neglect principle to the parent who has actually committed neglect or abuse is logical and appropriate. Ergo,
if a parent has abused or neglected child A, the court may find that A's sibling, child B, has been derivatively neglected by
the same parent (though the finding cannot be automatic or assumed) . Application becomes more questionable when
the petitioner seeks an order that the other (more passive) parent has committed derivative neglect, i.e., because parent
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Matter of Janiyah T., 26 Misc.3d 1208(A) (2010)
906 N.Y.S.2d 780, 2010 N.Y. Slip Op. 50013(U)
A abused or neglected the child, parent B is guilty of (both neglect and) derivative neglect. Recently, the courts have
become reluctant to make that leap” (Sobie, Supplemental Practice Commentaries, McKinney's Family Court Act § 1012,
2005 Electronic Update, citing, In re Sanel V., 11 AD3d 623 (2d Dept 2004) ; In re Cadejah AA., 33 AD3d 1155 (3d Dept
2006) ; In re Christina P., 275 AD2d 783 (2d Dept 2000) ; Matter of Rebecca X., 18 AD3d 896 (3d Dept 2005) ; Matter of
Hunter YY., 18 AD3d 899 (3d Dept 2005) ; see generally May, Derivative Neglect In New York State: Vague Standards
and Over-Enforcement, 40 Colum. J.L. & Soc. Probs. 605 (Summer 2007) ) .
End of Document
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© 2015 Thomson Reuters. No claim to original U.S. Government Works.
10
Matter of Jeremiah I.W. (Roger H.W.), 115 A.D.3d 967 (2014)
982 N.Y.S.2d 516, 2014 N.Y. Slip Op. 02064
115 A.D.3d 967, 982 N.Y.S.2d
516, 2014 N.Y. Slip Op. 02064
In the Matter of Jeremiah I.W. Administration
for Children's Services, Respondent; Roger H.W.,
Jr., Appellant. (Proceeding No. 1.) In the Matter
of Navaeh V.W. Administration for Children's
Services, Respondent; Roger H.W., Jr., Appellant.
(Proceeding No. 2.) In the Matter of Elijah B.
Administration for Children's Services, Respondent;
Roger H.W., Jr., Appellant. (Proceeding No. 3.)
Supreme Court, Appellate Division,
Second Department, New York
March 26, 2014
CITE TITLE AS: Matter of
Jeremiah I.W. (Roger H.W.)
HEADNOTE
Parent, Child and Family
Abused or Neglected Child
Derivative Neglect
Larry S. Bachner, Jamaica, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y.
(Larry A. Sonnenshein and Susan P. Greenberg of counsel),
for respondent.
Jennifer Hersh, Jamaica, N.Y., attorney for the child Jeremiah
I.W.
In three related child protective proceedings pursuant to
Family Court Act article 10, the father appeals (1) from
a fact-finding *968 order of the Family Court, Queens
County (Arias, J.), dated March 20, 2013, which granted the
petitioner's motion for summary judgment on the issue of
whether he derivatively neglected the child Jeremiah I.W.,
and (2), as limited by his brief, from so much of an order of
disposition of the same court (Arias, J.), also dated March 20,
2013, as, upon the fact-finding order, inter alia, released the
child Jeremiah I.W. to the mother's custody.
Ordered that the appeal from the fact-finding order is
dismissed, without costs or disbursements, as the fact-finding
order was superseded by the order of disposition and is
brought up for review on the appeal from the order of
disposition; and it is further,
Ordered that the order of disposition is affirmed insofar as
appealed from, without costs or disbursements. **2
The father is the person legally responsible for the care
of Elijah B., and the biological parent of Navaeh V.W.
and Jeremiah I.W. On January 8, 2013, the petitioner,
Administration for Children's Services (hereinafter ACS),
filed petitions alleging that the father neglected Elijah and
Navaeh by perpetrating acts of domestic violence against
the mother in the presence of the child or children since
2010 and as recently as December 3, 2012. The petitions
further alleged that on December 7, 2012, the father pleaded
guilty to attempted assault in the third degree, admitting that
he attempted to assault the mother with the intent to cause
physical injury (see Penal Law §§ 110.00, 120.00 [1]) based
on the incident on December 3, 2012.
On January 9, 2013, the father consented to the jurisdiction
of the Family Court pursuant to Family Court Act § 1051 (a),
and on January 10, 2013, a finding of neglect was entered
against the father with respect to Elijah and Navaeh. Within
a month of the birth of Jeremiah on January 23, 2013, ACS
filed a petition alleging that the father derivatively neglected
Jeremiah, and subsequently moved for summary judgment
based on the prior finding of neglect as to the other children.
The father opposed the motion. The Family Court granted
the motion and entered an order of fact-finding dated March
20, 2013, finding that the father had derivatively neglected
Jeremiah. On the same date, the court entered an order of
disposition as to all three children, inter alia, releasing the
children to the mother's custody, with agency supervision,
and directing the father to complete a batterer's intervention
program. On appeal, the father challenges the Family Court's
findings and order of disposition with respect to Jeremiah
only.
While “proof of the abuse or neglect of one child shall be
admissible evidence on the issue of the abuse or neglect of
any *969 other child of, or the legal responsibility of, the
respondent” (Family Ct Act § 1046 [a] [i]), “there is no
per se rule that a finding of neglect of one sibling requires
a finding of derivative neglect with respect to the other
siblings” (Matter of Andrew B.-L., 43 AD3d 1046, 1047
[2007]; see Matter of Elijah O. [Marilyn O.], 83 AD3d 1076
[2011]; Matter of Dutchess County Dept. of Social Servs. v
Douglas E., 191 AD2d 694 [1993]). “The focus of the inquiry
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
1
Matter of Jeremiah I.W. (Roger H.W.), 115 A.D.3d 967 (2014)
982 N.Y.S.2d 516, 2014 N.Y. Slip Op. 02064
to determine whether derivative neglect is present is whether
the evidence of abuse or neglect of one child indicates a
fundamental defect in the parent's understanding of the duties
of parenthood. Such flawed notions of parental responsibility
are generally reliable indicators that a parent who has abused
one child will place his or her other children at substantial risk
of harm” (Matter of Dutchess County Dept. of Social Servs. v
Douglas E., 191 AD2d at 694 [citations omitted]).
Further, “[i]n determining whether a child born after the
underlying acts of abuse or neglect should be adjudicated
derivatively abused or neglected, the determinative factor is
whether, taking into account the nature of the conduct and
any other pertinent considerations, the conduct which formed
the basis for a finding of abuse or neglect as to one child
is so proximate in time to the derivative proceeding that it
can reasonably be concluded that the condition still exists.
In such a case, the condition is presumed to exist currently
and the respondent has the burden of proving that the conduct
or condition cannot reasonably be expected to exist currently
or in the foreseeable future” (Matter of Elijah O. [Marilyn
O.], 83 AD3d at 1077 [internal quotation marks and citations
omitted]; see Matter of Baby Boy W., 283 AD2d 584 [2001]).
father's] understanding of the duties of parenthood” (Matter
of Clarissa S.P. [Jaris S.], 91 AD3d 785, 786 [2012] [internal
quotation marks omitted]; see Matter of Jaden J. [Ernest
C.], 106 AD3d 822 [2013]; Matter of Astrid C., 43 AD3d
819 [2007]) and that the neglect of Elijah and Navaeh was
“so proximate in time to the derivative proceeding that it
can reasonably be concluded that the condition still exist
[ed]” (Matter of Baby Boy W., 283 AD2d at 585 [internal
quotation marks omitted]; see Matter of Jaden J. [Ernest
C.], 106 AD3d at 822; Matter of Clarissa S.P. [Jaris S.], 91
AD3d at 785; Matter of Jamarra S. [Jessica S.], 85 AD3d 803
[2011]; Family Ct Act § 1046 [a] [i]).
Since the father failed to present any evidence to either
rebut the petitioner's prima facie case or establish that the
condition *970 leading to the neglect finding as to the other
children no longer existed, the derivative neglect finding was
proper (see Matter of Alyssa WW. [Clifton WW.], 106 AD3d
1157 [2013]; Matter of Jamarra S. [Jessica S.], 85 AD3d
at 804-805; Matter of Baby Boy W., 283 AD2d at 585).
Dickerson, J.P., Chambers, Austin and Sgroi, JJ., concur.
Copr. (c) 2015, Secretary of State, State of New York
The Family Court properly concluded that the neglect of
Elijah and Navaeh evinced a “fundamental defect in [the
End of Document
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© 2015 Thomson Reuters. No claim to original U.S. Government Works.
2
Matter of Amber C., 38 A.D.3d 538 (2007)
831 N.Y.S.2d 478, 2007 N.Y. Slip Op. 01870
38 A.D.3d 538, 831 N.Y.S.2d
478, 2007 N.Y. Slip Op. 01870
In the Matter of Amber C., an Infant. Dutchess
County Department of Social Services,
Respondent; Charles C. et al., Appellants.
Supreme Court, Appellate Division,
Second Department, New York
March 6, 2007
CITE TITLE AS: Matter of Amber C.
HEADNOTE
Parent, Child and Family
Abused or Neglected Child
Parents admitted to neglecting subject child's four siblings
based on their failure to maintain safe and sanitary home
and their failure to ensure that one of children attended
school; these admissions demonstrated fundamental defect in
parents' understanding of duties of parenthood; as findings
of neglect were entered nine and seven months, respectively,
prior to subject child's birth and commencement of derivative
neglect proceeding, prior finding was so proximate in time to
derivative proceeding, that it could reasonably be concluded
that condition still existed; while parents improved condition
of their home, they failed to dem *539 onstrate that
circumstances leading to prior findings could not reasonably
be expected to exist currently or in foreseeable future;
additionally, parents' failure to complete programs required
of them by prior orders of disposition and recommendations
made following resulting evaluations supported finding of
derivative neglect.
Neal D. Futerfas, White Plains, N.Y., for appellant Charles C.
Del Atwell, East Hampton, N.Y., for appellant Theresa C.
Ronald Wozniak, County Attorney, Poughkeepsie, N.Y.
(Richard A. Ott of counsel), for respondent.
Norbert H. Brown, Jr., Poughkeepsie, N.Y., Law Guardian.
In a child protective proceeding pursuant to Family Court
Act article 10, (1) the father and the mother separately
appeal from an order of the Family Court, Dutchess County
(Forman, J.), entered July 9, 2004, which found that they
derivatively neglected the subject child, (2) the father appeals
from an order of fact-finding and disposition of the same
court, entered October 13, 2004, which, inter alia, found that
the subject child was a derivatively neglected child within the
meaning of Family Court Act § 1012 (f) (i) (B), placed the
father under the petitioner's supervision for a period of up to
12 months effective August 25, 2004, and placed the subject
child in the petitioner's custody for a period of up to 12 months
effective August 25, 2004, and (3) the mother appeals from
an order of fact-finding and disposition of the same court,
also entered October 13, 2004, which, inter alia, found that
the subject child was a derivatively neglected child within the
meaning of Family Court Act § 1012 (f) (i) (B), placed the
mother under the petitioner's supervision for a period of up to
12 months effective August 25, 2004, and placed the subject
child in the petitioner's custody for a **2 period of up to 12
months effective August 25, 2004.
Ordered that the appeals from the order entered July 9, 2004,
are dismissed, without costs or disbursements, as the order
was superseded by the orders of fact-finding and disposition;
and it is further,
Ordered that the appeals from so much of the orders of
fact-finding and disposition as placed the parents under the
petitioner's supervision for a period of up to 12 months and
placed the subject child in the petitioner's custody for a period
of up to 12 months, effective August 25, 2004, are dismissed
as academic, without costs or disbursements; and it is further,
Ordered that the orders of fact-finding and disposition are
affirmed insofar as reviewed, without costs or disbursements.
The appeals from so much of the orders of fact-finding
and disposition as placed the parents under the petitioner's
supervision for a period of up to 12 months and placed the
subject child in the petitioner's custody for a period of up
to 12 months, effective August 25, 2004, must be dismissed
as academic, as those portions of the orders have expired by
their own terms (see Matter of Daqwuan G., 29 AD3d 694,
695 [2006]; Matter of Regina P., 19 AD3d 698, 699 [2005];
Matter of Dareth O., 304 AD2d 667, 668 [2003]). However,
the adjudications of derivative ne *540 glect constitute
stigmas which might indirectly affect the parents' status in any
future proceedings. Therefore, the appeals from so much of
the orders of fact-finding and disposition as determined that
the respective parents derivatively neglected the subject child
are not academic (see Matter of Daqwuan G., supra; Matter
of Regina P., supra; Matter of Dareth O., supra).
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
1
Matter of Amber C., 38 A.D.3d 538 (2007)
831 N.Y.S.2d 478, 2007 N.Y. Slip Op. 01870
“In a child protective proceeding pursuant to Family
Court Act article 10, a finding that a child is abused or
neglected must be supported by a preponderance of the
evidence” (Matter of Maithsa Edourd S., 27 AD3d 475,
476 [2006]; see Family Court Act § 1046 [b] [i]; Matter
of Tammie Z., 66 NY2d 1, 3 [1985]). “[P]roof of the abuse
or neglect of one child shall be admissible evidence on the
issue of the abuse or neglect of any other child of . . . the
respondent” (Family Court Act § 1046 [a] [i]). “Even in the
absence of direct evidence of actual abuse or neglect of a
second child, a derivative finding of neglect should be made
where the evidence as to the directly abused or neglected child
demonstrates such an impaired level of parental judgment
as to create a substantial risk of harm for any child in
their care, thereby making such a child neglected under
Family Court Act § 1012 (f) (i) (B)” (Matter of Dutchess
County Dept. of Social Servs. [Noreen K.], 242 AD2d 533,
534 [1997]; see Matter of Ramsay M., 17 AD3d 678, 679
[2005]). “The focus of the inquiry to determine whether
derivative neglect is present is whether the evidence of abuse
or neglect of one child indicates a fundamental defect in the
parent's understanding of the duties of parenthood” (Matter
of Dutchess County Dept. of Social Servs. v Douglas E.,
191 AD2d 694, 694 [1993]; see Matter of Diamond K.,
31 AD3d 553, 554 [2006]; Matter of Maithsa Edourd S.,
supra; Matter of Jasmine A., 18 AD3d 546, 549 [2005]).
Where the nature of the neglect, notably its duration and
the circumstances surrounding its commission “evidence[s]
fundamental flaws in the respondent's understanding of the
duties of parenthood . . . the derivative finding may be
justified if the prior finding was so proximate in time to the
derivative proceeding, that it can reasonably be concluded
that the condition still exists” (Matter of Hannah UU., 300
AD2d 942, 944 [2002] [internal quotations omitted]; see
Matter of Baby Boy W., 283 AD2d 584, 585 [2001]; Matter of
Cruz, 121 AD2d 901, 902-903 [1986]). “ ‘In such a case, the
condition is presumed to exist currently and the respondent
has the burden of proving that the conduct or condition cannot
reasonably be expected to exist currently or in the foreseeable
future’ ” (Matter of **3 Baby Boy W., supra at 585, quoting
Matter of Cruz, supra at 903; see Matter of Hannah UU, supra
at 944).
respectively, based, inter alia, on their failure to maintain a
safe and sanitary home and their failure to ensure that one of
the children attended school. These admissions demonstrated
a “fundamental defect in the parent's understanding of the
duties of parenthood” (Matter of Dutchess County Dept. of
Social Servs. v Douglas E. III, supra at 694; see Matter
of Diamond K., supra at 554; Matter of Maithsa Edourd
S., supra at 476; Matter of Jasmine A., supra at 549).
As the findings of neglect were entered nine and seven
months, respectively, prior to the subject child's birth and
the commencement of this derivative neglect proceeding,
“the prior finding was so proximate in time to the derivative
proceeding, that it can reasonably be concluded that the
condition still exists” (Matter of Hannah UU., supra at
944; see Matter of Baby Boy W., supra at 585). Thus, the
condition “is presumed to exist currently and [the parents]
ha[d] the burden of proving that the conduct or condition
cannot reasonably be expected to exist currently or in the
foreseeable future' ” (Matter of Baby Boy W., supra at 585,
quoting Matter of Cruz, supra at 903; see Matter of Hannah
UU., supra at 944). While the evidence established that the
parents did improve the condition of their home, they failed
to meet their burden of demonstrating that the circumstances
leading to the prior findings “cannot reasonably be expected
to exist currently or in the foreseeable future' ” (Matter of
Baby Boy W., supra at 585, quoting Matter of Cruz, supra at
903; see Matter of Hannah UU., supra at 944). Additionally,
the parents' failure to complete the programs required of them
by the prior orders of disposition and the recommendations
made following the resulting evaluations support the Family
Court's determination (see Matter of Jocelyn S., 30 AD3d 273,
273 [2006]; Matter of Hunter YY., 18 AD3d 899, 899-900
[2005]; Matter of Sharonda S., 301 AD2d 532, 534 [2003];
Matter of Daequan FF., 243 AD2d 922, 922-923 [1997]; see
also Matter of Marquise EE., 257 AD2d 699, 701 [1999]; cf.
Matter of Keith JJ., 295 AD2d 644, 647 [2002]).
The appellants' remaining contentions are unpreserved for
appellate review or without merit. Crane, J.P., Krausman,
Fisher and Dickerson, JJ., concur.
Copr. (c) 2015, Secretary of State, State of New York
The mother and the father admitted to neglecting the subject
*541 child's four siblings in September and November 2002
End of Document
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© 2015 Thomson Reuters. No claim to original U.S. Government Works.
2
Matter of Harmony M.E. (Andre C.), 121 A.D.3d 677 (2014)
994 N.Y.S.2d 138, 2014 N.Y. Slip Op. 06580
121 A.D.3d 677, 994 N.Y.S.2d
138, 2014 N.Y. Slip Op. 06580
In the Matter of Harmony M.E. Administration
for Children's Services, Respondent; Andre C.
et al., Appellants. (Proceeding Nos. 1 and 2.)
In the Matter of Queen L.E. Administration for
Children's Services, Respondent; Andre C. et
al., Appellants. (Proceeding Nos. 3 and 7.) In
the Matter of Precious J.E. Administration for
Children's Services, Respondent; Andre C. et al.,
Appellants. (Proceeding Nos. 4 and 8.) In the Matter
of Baby G.C. Administration for Children's Services,
Respondent; Andre C. et al., Appellants. (Proceeding
No. 5.) In the Matter of Allah S.E. Administration
for Children's Services, Respondent; Andre C.
et al., Appellants (Proceeding Nos. 6 and 9.)
Supreme Court, Appellate Division,
Second Department, New York
October 1, 2014
CITE TITLE AS: Matter of Harmony M.E. (Andre C.)
HEADNOTES
Appeal
Dismissal
Dispositional Orders in Family Court Matter Entered on
Default
Parent, Child and Family
Abused or Neglected Child
Derivative Abuse— Collateral Estoppel Effect of Criminal
Proceeding
Parent, Child and Family
Abused or Neglected Child
Derivative Abuse—After-Born
Derivative Abuse
Children
Subject
to
Parent, Child and Family
Abused or Neglected Child
Corroboration of Child's Out-of-Court Statement—Cross
Corroboration of Children's Statements
John C. Macklin, New Hyde Park, N.Y., for appellant Andre
C.
Cheryl Gammone, Staten Island, N.Y., for appellant Jessica
C.
Zachary W. Carter, Corporation Counsel, New York, N.Y.
(Larry A. Sonnenshein and Kathy H. Chang of counsel), for
respondent.
Kristen M. Marshall, Jamaica, N.Y., attorney for the children
Harmony M.E., Baby G.C., and Allah S.E.
Jacqueline Cabrera, Jamaica, N.Y., attorney for the child
Queen L.E.
**2 Sandra M. Munoz, Jamaica, N.Y., attorney for the child
Precious J.E.
In related child protective proceedings pursuant to Family
Court Act article 10, the father appeals, as limited by his brief,
from so much of an order of disposition of the Family Court,
Queens County (McGowan, J.), dated January 29, 2013, as,
upon an order of fact-finding of the same court (Friedman,
J.) dated June 27, 2005, finding that he derivatively abused
the children Queen L.E. and Precious J.E., upon an order
of the same court (McGowan, J.) dated November 24,
2008, inter alia, granting those branches of the motion of
the Administration for Children's Services which were for
summary judgment determining that he derivatively abused
the children Baby G.C. and Allah S.E., upon an order of the
same court (McGowan, J.) dated February 8, 2012, granting
the motion of the Administration for Children's Services for
summary judgment determining that he derivatively abused
the child Harmony M.E., and upon his failure to appear at a
continued dispositional hearing, placed the subject children
in the custody of the Commissioner of Social Services of the
City of New York until the next permanency hearing, and the
mother separately appeals, as limited by her brief, from so
much of the same order of disposition as, upon an order of
fact-finding of the same court (McGowan, J.) dated March 18,
2011, finding that she had derivatively abused the children
Queen, Precious, Baby, and Allah, upon the order dated
February 8, 2012, granting the motion of the Administration
for Children's Services for summary judgment determining
that she derivatively abused the child Harmony and upon her
failure to appear at the continued dispositional hearing, placed
the subject children in the custody of the Commissioner of
Social Ser- *678 vices of the City of New York until the
next permanency hearing.
Ordered that the appeals from the order of disposition
are dismissed, without costs or disbursements, except with
respect to matters which were the subject of contest (see
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
1
Matter of Harmony M.E. (Andre C.), 121 A.D.3d 677 (2014)
994 N.Y.S.2d 138, 2014 N.Y. Slip Op. 06580
CPLR 5511; Matter of Smith v Howard, 113 AD3d 781
[2014]); and it is further,
the continued dispositional hearing. The parents separately
appeal *679 from the order of disposition.
Ordered that the order of disposition is affirmed insofar as
reviewed, without costs or disbursements.
**3 Where an order appealed from is made upon the
appellants' default, review is limited to matters which were
the subject of contest below (see Matter of Smith v Howard,
113 AD3d at 781; Matter of Angie N.W. [Melvin A.W.], 107
AD3d 907, 908 [2013]). Here, the mother and father failed
to appear at the continued dispositional hearing. Accordingly,
their appeals from the order of disposition must be dismissed
except insofar as they bring up for review the fact-finding
and summary judgment determinations of the Family Court,
which were the subject of contest below (see Matter of
Alexandria M. [Mattie M.], 108 AD3d 548, 548-549 [2013];
Matter of Monica C.M. [Arnold A.], 107 AD3d 996, 997
[2013]).
In September 2003, the parents' three-month-old son died
while in the father's care. The coroner determined that the
baby's death was a homicide and that the baby had died of
asphyxiation by smothering. The father was charged with
manslaughter in the second degree, criminally negligent
homicide, and endangering the welfare of a minor, and
pleaded guilty to the latter charge. The Administration for
Children's Services (hereinafter ACS) filed derivative abuse
petitions against the father relating to the parents' two older
children, Queen L.E. and Precious J.E. On June 27, 2005,
the Family Court, after a fact-finding hearing, found that
the father had derivatively abused Queen and Precious.
The parents thereafter had additional children (hereinafter
collectively the younger children), and ACS filed additional
derivative abuse petitions against the father as each child
was born. In addition, in December 2005, ACS filed three
petitions against the mother alleging that she had derivatively
abused the two older children, and the first of the younger
children, Allah S.E., by failing to enforce protective orders
against the father. The children were removed from the
mother's care by ACS and placed in foster care. ACS named
the mother as a respondent in its subsequent petitions relating
to the two youngest children, Harmony M.E. and Baby G.C.,
based upon the same allegations, and each of these children
was removed from the home as an infant. ACS subsequently
moved, inter alia, for summary judgment against the father on
its petitions relating to the children Allah and Baby, and, in an
order dated November 24, 2008, the Family Court granted the
motion. On March 18, 2011, after a fact-finding hearing, the
court issued an order finding that the mother had derivatively
abused the children Queen, Precious, Baby, and Allah by
allowing the father access to these children in violation of an
order of protection. ACS then moved for summary judgment
against the father and the mother on its petition relating to
Harmony and, in an order dated February 8, 2012, the court
granted that motion.
On May 1, 2012, the Family Court commenced a dispositional
hearing relating to all of the children and both parents. The
parents were present on that date, but on the adjourned date
of January 29, 2013, neither parent appeared, and the court
entered its order of disposition on their failure to appear at
In a child protective proceeding pursuant to Family Court Act
article 10, a finding that a child is abused or neglected must
be supported by a preponderance of the evidence (see Matter
of Amber C., 38 AD3d 538, 540 [2007]). While proof of the
abuse or neglect of one child shall be admissible evidence on
the issue of the abuse or neglect of any other child of, or the
legal responsibility of, the respondent (see Family Ct Act §
1046 [a] [i]; Matter of Amber C., 38 AD3d at 540), a finding of
abuse or neglect as to one sibling does not mandate a finding
of derivative abuse or neglect as to the other siblings (see
Matter of Jeremiah I.W. [Roger H.W.], 115 AD3d 967, 969
[2014]). Instead, the focus of the inquiry to determine whether
derivative neglect is present is whether the evidence of abuse
or neglect of one child indicates a fundamental defect in the
parent's understanding of the duties of parenthood (see id. at
969; Matter of Monica C.M. [Arnold A.], 107 AD3d at 997;
Matter of Dutchess County Dept. of Social Servs. v Douglas
E., 191 AD2d 694, 694 [1993]) or demonstrates such an
impaired level of parental judgment as to create a substantial
risk of harm for any child in their care (see Matter of Amber
C., 38 AD3d at 540; Matter of Dutchess County Dept. of
Social Servs. [Noreen K.], 242 AD2d 533, 534 [1997]).
A finding of derivative abuse is warranted where a
respondent's abuse of the subject child is so closely connected
with the care of another child as to indicate that the second
child is equally at risk (see Matter of Marino S., 100 NY2d
361, 374 [2003]). In determining whether a child born after
the underlying acts of abuse or neglect should be adjudicated
derivatively abused or neglected, the determinative factor is
whether, taking into account the nature of the conduct and
any other pertinent considerations, the conduct which formed
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
2
Matter of Harmony M.E. (Andre C.), 121 A.D.3d 677 (2014)
994 N.Y.S.2d 138, 2014 N.Y. Slip Op. 06580
the basis for a finding of abuse or neglect as to one child is
so proximate in time to the derivative proceeding that it can
reasonably be concluded that the condition still exists (see
Matter of Elijah O. [Marilyn O.], 83 *680 AD3d 1076, 1077
[2011]; Matter of Cruz, 121 AD2d 901, 902-903 [1986]).
Here, the evidence before the Family Court established not
only that the father had pleaded guilty to endangering the
welfare of a child in connection with the death of the parents'
son in 2003, but also that he had pleaded guilty to assault in
the second degree for attempting in 1993 to strangle a threemonth-old child from a prior relationship. A determination
in a criminal action may be given collateral estoppel effect
in a Family Court proceeding where the identical issue has
been resolved, and the defendant in the criminal action had
a full and fair opportunity to litigate the issue of his or her
criminal conduct (see Matter of Tyreek A. [Franklyn A.], 108
AD3d 527, 527-528 [2013]; Matter of Yamillette G. [Marlene
M.], 74 AD3d 1066, 1067 [2010]). There is no indication that
the father here lacked a full and fair opportunity to challenge
either of his convictions. Accordingly, the court properly
determined that the father had derivatively abused the two
older children, Queen and Precious (see Matter of Tyreek A.
[Franklyn A.], 108 AD3d at 528; Matter of Yamillette G.
[Marlene M.], 74 AD3d at 1067; see also Matter of Xavier J.,
47 AD3d 815 [2008]).
Although the Family Court Act does not specifically provide
for summary judgment, it does state that “the provisions of
the civil practice law and rules shall apply to the extent that
they are appropriate to the proceedings involved” (Family
Ct Act § 165 [a]). Thus, in an appropriate case, the Family
Court may enter a finding of neglect or abuse on a motion for
summary judgment in lieu of holding a fact-finding hearing,
upon the petitioner's prima facie showing of neglect or abuse
as a matter of law and the respondent's failure to raise a
triable issue of fact in opposition to the motion (see Matter
of Suffolk County Dept. of Social Servs. v James M., 83
NY2d 178, 182-183 [1994]; Matter of Giovanni S. [Jasmin
A.], 98 AD3d 1054, 1056 [2012]). Here, because a factfinding hearing had been held as to the two older children, and
because the petitions relating to the younger children were
all based upon events which occurred prior to their births, no
purpose would have been served by holding **4 separate
fact-finding hearings as to the younger children. Accordingly,
contrary to the father's contention, the Family Court properly
permitted the agency to move for summary judgment as to the
petitions relating to the younger children.
The father contends that, as to the younger children, the death
of the parents' son was too remote in time to support a finding
of derivative abuse. However, the Family Court correctly
determined that, given the seriousness of the father's conduct
—smothering his son and attempting to strangle another child
10 years earlier—the risk to the children remained despite
the *681 years which had passed. Moreover, in response
to ACS's motions for summary judgment, the father did
not submit any evidence suggesting that he had overcome
whatever psychological flaws led him to commit such violent
acts against his children or otherwise establishing that he no
longer posed a danger to his children (see Matter of Kayden
E. [Luis E.], 111 AD3d 1094, 1096 [2013]; but see Matter of
Monica C.M. [Arnold A.], 107 AD3d at 997). Accordingly,
with respect to the father, the Family Court properly granted
ACS's motions for summary judgment on its petitions relating
to the younger children.
In her separate appeal, the mother contends that the Family
Court erred in basing its findings against her upon statements
made by the two older children when they were between
four and six years old. Pursuant to Family Court Act §
1046, “previous statements made by the child relating to
any allegations of abuse or neglect shall be admissible in
evidence, but if uncorroborated, such statements shall not
be sufficient to make a fact-finding of abuse or neglect.
Any other evidence tending to support the reliability of the
previous statements, including, but not limited to the types
of evidence defined in this subdivision shall be sufficient
corroboration” (Family Ct Act § 1046 [a] [vi]; see Matter
of Nicole V., 71 NY2d 112, 123 [1987]). The out-ofcourt statements of siblings may properly be used to crosscorroborate one another (see Matter of Jada A. [Robert W.],
116 AD3d 769 [2014]; Matter of Jeshaun R. [Ean R.], 85
AD3d 798, 799 [2011]; Matter of Tristan R., 63 AD3d 1075,
1076 [2009]; Matter of Latisha W., 221 AD2d 645, 645
[1995]). The Family Court has considerable discretion in the
first instance to determine if a child's out-of-court statements
have been reliably corroborated, and whether the record as a
whole supports a finding of abuse or neglect (see Matter of
Tristan R., 63 AD3d at 1078).
Here, the record supports the Family Court's determination
that the older children's statements corroborate one another.
Accordingly, the record supports the court's determination
that the mother derivatively abused the two older children
and the first of the younger children by allowing the father
access to them in violation of a protective order (see Matter of
Alanna S. [Regina A.], 92 AD3d 787, 788 [2012]; Matter of
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
3
Matter of Harmony M.E. (Andre C.), 121 A.D.3d 677 (2014)
994 N.Y.S.2d 138, 2014 N.Y. Slip Op. 06580
Aliciya R., 56 AD3d 784, 784-785 [2008]; Matter of Devontay
M., 56 AD3d 561, 562 [2008]; see also Matter of Xavier
J., 47 AD3d 815, 816 [2008]). Similarly, the record also
supports the court's determination that the other younger
children were derivatively abused. Throughout the various
proceedings in this case, the mother has steadfastly refused
even to entertain the possibility that the *682 father played
any part in their son's death, notwithstanding her knowledge
of ample evidence to the contrary. The mother's inability
or unwillingness to recognize the risk posed by the father
demonstrated a fundamental defect in her understanding of
parental duties relating to the care of children, and supported
a finding of derivative abuse as to the younger children (see
Matter of Devontay M., 56 AD3d at 562). This evidence,
in combination with the older children's statements and
End of Document
the court's credibility determinations, to which we accord
deference (see Matter of Nurridin B. [Louis J.], 116 AD3d
770 [2014]; Matter of Jada A. [Robert W.], 116 AD3d at 769;
Matter of Tristan R., 63 AD3d at 1078), supports the court's
determination that the mother derivatively abused all of the
subject children.
The father's remaining contention is without merit (see Matter
of Suffolk County Dept. of Social Servs. v James M., 83 NY2d
at 182-183; Matter of Giovanni S. [Jasmin A.], 98 AD3d
at 1056). Balkin, J.P., Leventhal, Maltese and Barros, JJ.,
concur.
Copr. (c) 2015, Secretary of State, State of New York
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
4
Faculty Biographies
Hon. Sarah Cooper is a judge in the Family Court, Bronx County. Judge Cooper was appointed as a
Family Court Judge in January 2012. She is a graduate of SUNY Binghamton and received her law degree
from Cardozo School of Law. Prior to her appointment, she practiced in Family Court for 15 years, having
worked for the Administration for Children’s Services and as a Court Attorney Referee in Family Court.
Maura Keating is a Litigation Supervisor who joined the Center for Family Representation in September
of 2007. She is a Co-Director of CFR’s Manhattan practice. Prior to joining CFR, Ms. Keating was a staff
attorney at The Legal Aid Society’s Juvenile Rights Practice, appearing as attorney for the child on abuse
and neglect, custody and visitation, paternity, termination of parental rights, PINS and juvenile
delinquency petitions. Ms. Keating graduated from St. John’s University School of Law. While in law
school, she served as a legal intern with the Administration for Children’s Services Family Court Legal
Services in Queens Family Court. She received her B.S. from the University of New Hampshire.
Keith Brown started his legal career as an attorney for the NYC Law Department in September 2003
prosecuting juvenile delinquency cases in Staten Island. He then transferred to the Torts Division in
September 2005 where he spent a year defending the city in personal injury and property damage cases.
Keith has had two jury trials involving alleged police brutality that went to verdict during that
year. From September 2006-May 2010 he transferred back to the Family Court Division where he
became an Assistant Deputy Borough Chief in the Manhattan office and then in the Bronx office. In
Manhattan Keith prosecuted strong-arm robbery cases involving gang members in the 26th Precinct
coordinating efforts and information with the Police Department. In April 2008 he was assigned his
biggest case that attracted a lot of media attention: he prosecuted a 14 year old who killed a Columbia
doctoral student by chasing him into the street where he was hit by a car and died. In 2009 Keith
became the Family Violence Coordinator for the NYC Law Department Family Court Division where he
supervised all cases citywide involving intra-familial violence between a youth and the family. Keith also
dealt with teen-dating violence. In May 2010 Keith left the Law Department and became a member of
the Assigned Counsel Plan for the First Department where he represents children and family members in
various proceedings. Keith’s favorite type of case is to defend juvenile delinquency respondents.
Martha Schneiderman, Esq. is Deputy Director of the Trial and Training Unite of The Children’s Law
Center. She received her J.D. from Cardozo Law School in 1990 and, following her graduation worked as
a staff attorney for The Legal Aid Society, Criminal Defense Division. In 1997, she joined The Bronx
Defenders where she remained until 1999. In 2001, Martha joined The Children’s Law Center as a staff
attorney in their Brooklyn office. In 2005 Martha became director of The Children Law Center’s Bronx
office, and in 2007 was made Deputy Director. Martha is a member of the CVO Court Advisory
Committee and the LGBT Court Advisory Committee.
Lauren Meller, ACS, began her career with Children Services. She was progressively promoted in the
Manhattan Family Court Unit from agency attorney to Team Leader and Assistant Supervising Attorney.
Lauren also served as the Deputy Supervising Attorney in the Manhattan Family Court Unit until 2005
when she was made the Supervising Attorney in FCLS Queens. In 2011 she became the Supervising
Attorney for the Bronx Family Court Unit. She leads the court unit’s management team overseeing a
staff of more than 100 and is responsible for day-to-day operations and management, as well as leading
ACS’s interface with the Bronx Family Court. She manages all litigation and administrative issues within
the legal office in the borough. Lauren holds a degree in Psychology from the State University of New
York at Albany and received her law degree from Albany Law School of Union University.