Justice Denied: The Crisis in Legal Representation of Birth Parents in Child Protective Proceedings
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8/9/2019 Justice Denied: The Crisis in Legal Representation of Birth Parents in Child Protective Proceedings
JUSTICE DENIEDTHE CRISIS IN LEGAL REPRESENTATIONOF
BIRTH PARENTS IN CHILD PROTECTIVE PROCEEDINGS
A Report by
for the City of New York
C-PLAN: Child Planning and Advocacy Now,
a special project of the Accountability Project, Inc.
Hank Orenstein, C-PLAN Director
Deirdre OSullivan, C-PLAN Special Counsel
Laurel W. Eisner, General Counsel, Office of the Public Advocate
8/9/2019 Justice Denied: The Crisis in Legal Representation of Birth Parents in Child Protective Proceedings
SPECIAL THANKS TO:
Dalia HusbandJason Kanter
C-PLAN staff and interns
for their assistance in producing this report
We also thank former C-PLAN Director, Jane Golden, for her efforts in initiating this study
We also thank the following people for their assistance and cooperation in providing us with
information and guidance: Katharine Law, Director, Law Guardian Program, First Department;
Harriet Weinberger, Director, Law Guardian Program, Second Department; Monica Drinane,
Attorney-In-Charge, Juvenile Rights Division, Legal Aid Society; Lauren Shapiro, Director,
Family Law Unit, Brooklyn Legal Services; Charles Hollander, Deputy General Counsel, Division
of Legal Services, Administration for Childrens Services; Michael Arsham, Director, Child
Welfare Organizing Project; Lynn Slater, Lawyers for Children; Honorable Joseph M. Lauria,
Administrative Judge, New York City Family Court; Rosemarie Wyman, former Court Attorney
to Judge Joseph Lauria; Edwina Richardson, Member, Assigned Counsel Panel and Advisory
Committee, First Department; Prof. Martin Guggenheim, NYU Law School; and Martha Raimon,former C-PLAN Staff Attorney
To all the parents, attorneys and judges who were willing to share their experiences
in Family Court
C-PLAN WISHES TO ACKNOWLEDGE THE SUPPORT OF THE FOLLOWING
SUPPORTERS OF OUR FAMILY COURT INITIATIVE:
Robert Sterling Clark Foundation, The Child Welfare Fund, Morrison & Foerster Foundation.
WE ARE ALSO GRATEFUL TO OUR OTHER FUNDERS FOR THEIR SUPPORT OF THE C-
Lily Auchincloss Foundation, David & Minnie Berk Foundation, Edna F. Blum Foundation, JENJO
Foundation, Albert Kunstadter Family Foundation, Louis & Harold Price Foundation, Nate B. &
Frances Spingold Foundation, Van Ameringen Foundation
8/9/2019 Justice Denied: The Crisis in Legal Representation of Birth Parents in Child Protective Proceedings
TABLE OF CONTENTS
EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I - THE ANATOMY OF THE SYSTEM
A. The Evolution of the Right to Counsel in New York City
Family Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. New York Citys Child Welfare System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. The Statutory Scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Who Represents the Parties in Abuse and Neglect Proceedings . . . . . . . . . . . . . . 6
a. Legal Counsel for the Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
b. Legal Counsel for the City (ACS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
c. Legal Counsel for the Parents (Respondents) . . . . . . . . . . . . . . . . . . . . . . 8
II - THE CRISIS IN FAMILY COURT
A. The Grossly Insufficient Number of Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1. The First Department (Manhattan and the Bronx) . . . . . . . . . . . . . . . . . . . . . . . . 15
2. The Second Department (Brooklyn, Queens and Staten Island) . . . . . . . . . . . . . 17
B. Timing of the Assignment of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
C. Duration of the Assignment of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
D. Inadequate Fees Lead to Inadequate Representation . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1. Difficulty Recruiting and Retaining Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2. Disincentive to Perform Out-of-Court Work. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
E. Lack of Institutionalized Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
F. The Lack of Specialization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
G. Insufficient Accountability and Judicial Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
H. The Impact on Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
III - RECOMMENDATIONS
A. Short Term Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
1. Increase Reimbursement Rates to $75 Per Hour . . . . . . . . . . . . . . . . . . . . . . . . 34
2. Expand Pilot Projects Providing Interdisciplinary Representation to Respondents 36
3. Establish Specialized Panels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4. Establish Continuity of Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5. Increase Oversight and Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6. Replicate and Expand the Successful Model Courts . . . . . . . . . . . . . . . . . . . . . . 42
B. Long-Term Recommendation - An Organization for Parent Representation . . . . . . . . . . 44
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
A. Regulations Governing Assigned Counsel
1. First Department Assigned Counsel Panel Application
2. Second Department Assigned Counsel Panel Application
B. Office of the Criminal Justice Coordinator, Assigned Counsel Plan Attorney Payments,
C. First Department Appellate Divisions Report to the New York State Unified Court System,
Representation of Indigent Defendants, (1998)
D. Second Department Appellate Divisions Report to the New York State Unified Court
System, Representation of Indigent Defendants, (1998)
E. Christianson, S., Cut-Rate Justice or High-Priced Fleecing?, Empire State Report (May
F. Sample Client Bill of Rights
G. C-PLAN Survey
H. About C-PLAN
1 The City of New York, Office of the Comptroller, Bureau of Management Audit, Audit o f the Administration for
Childrens Services Efforts to Move Child ren Out of Foster Care , (November 30, 1999). Recognizing that New York
City children spend too much time in foster care, the Administration for Childrens Services (ACS) developed the
STAR (Safe and Timely Adoptions and Reunifications) Program to create flexible funding for foster care agencies to
suppor t a continuum of services for families. ACS, The STAR Program: Program Description (February 2000).
2 Telephone interview with Mike Kharfen, Director of Public Affairs for the Administration of Children and Families,
Health and Human Services (April 11, 2000).
3As of June 30, 1999, there were 36,648 children in care, as reported by the Administration for Childrens Services,
Reform Plan Indicators Status Report 2 (March 2000) at 98.
4 This is based on an average cost of $15,000 per year to keep a child in a foster care boarding h ome (a family home)
and an average cost of $54,000 per year to keep a child in congregate care facility. Approximately four-fifths of
There is nearly unanimous agreement among Family Court practitioners, judges and child welfare
advocates that the current system for providing legal counsel to indigent parents accused of abuse and
neglect in New York City neither protects the rights of parents nor serves the best interests of children.
It denies parents due process, profoundly disrupts family life, and leads to inappropriately lengthy and
costly foster care stays for children.
New York State law grants parents accused of neglect or abuse the right to counsel in Family
Court proceedings. For those families who cannot afford to hire their own lawyers, Article 18-B of the
State County Law authorizes assignment of government-subsidized lawyers (known colloquially as
assigned counsel or 18-B lawyers). That system is now in severe crisis. The reimbursement rates
are grossly disproportionate to the cost of maintaining a law practice; the caseloads are impossibly high;
and the investigative, counseling and support services necessary to meet client needs are largely non-
existent. Despite their best efforts, attorneys working under such conditions can provide only the most
minimal time and attention to each of their many cases. The result is a system that fails to meet the
requirements of the law, undermines the proper functioning of the Family Court, and adds immeasurably
to the short and long-term costs of removing children from their homes.
On average, children in New York City spend four years in foster care,1 compared with the
national average of 33 months.2 The estimated cost of maintaining the approximately 36,0003 children in
foster care in New York City is $723 million per year.4 More appropriate legal representation of
children in foster care are in boarding homes.
5Foster care costs are shared by the federal, state and city governments, with appro ximately one-third paid by theCity. Assigned counsel (18-B) costs for the representation of adults are paid entirely by the City.
6 According to New York Citys Administration for Childrens Services, the number of substantiated reports of
maltreatment of children in foster homes increased by 25% between 1996 and 1999, although there were 12% fewer
children in care overall. The increase was largest in non-kinship (non-relative) homes. Reform Plan Indicators,
supra note 3, at 89.
7 In 1998, over 12,000 children in foster care were separated from at least one of their siblings (representing
approximately half of all children in care with siblings). Reform Plan Indicators, supra note 3, at 37.
8 See, for example, Courtney, M., et al. (1998), Foster Youth T ransitions to Ad utlhood: Ou tcomes 12 to 18 M onths
After Leaving Out-of-Home Care, University of Wisconsin-Madison; Department of Health and Human Services
(1990), A National Evaluation of Title IV-E Foster Care Independent Living Programs for Youth; Dedewo, M. (1999),
Discharg ed to Homelessn ess, Foster Care Youth United; Somini Sengupta, Youths Leaving Foster Care System
With Few Skills o r Resources, New York Times (March 28, 2000).
parents to insure more expeditious and effective court proceedings would truncate the process and
likely reduce foster care stays. If the average length of stay for children in foster care boarding homes in
New York City was just four months shorter, the total cost of foster care would be reduced by $40
million per year. New York City, which pays one-third of the cost, would save $13 million per year,and the State government would save a comparable amount.5
The long term social benefits of such reduced time in care would be significant as well. Foster
care is designed to protect children from harm, but it often takes a devastating toll. The overwhelming
majority of children in foster care have been removed from their parents due to findings of neglect not
abuse but studies have shown that foster care itself is often harmful.6 Separated not only from their
parents, but from their homes, schools, siblings,7 extended family and communities as well, children are
often placed in inappropriate foster care settings and are transferred from one placement to another
during their lengthy foster care stays. Although permanency is a stated goal of the child welfare system,
many foster children never achieve that. Rather, they become increasingly rootless and troubled and
end up alone and unattached once they age out of foster care. There is growing evidence that a
disturbing number end up in prisons or homeless shelters.8
This comprehensive study describes how the assigned counsel system works, analyzes the
problems and proposes possible solutions. We believe that some of the deficiencies can and should be
9This includes all types of petitions filed in Family Court, not just child welfare petitions. From 1994 to 1998, there
was an increase of 13% in the number of child welfare petitions filed. Child Welfare Watch (a joint publication of the
Center for an Urban Future and the New York Forum), Families in Limbo: Crisis in Family Court(Winter 1999) at 11.
ameliorated through various short-term measures, but real change will require a fundamental restructuring
of the system.
HISTORY OF THE STUDY
C-PLAN: Child Planning and Advocacy Now is a project of the Public Advocates Office
which assists families who have problems dealing with the Citys child welfare system. C-PLAN
initiated this study in 1997 in response to numerous complaints from C-PLAN clients regarding their
inability to get in touch with their attorneys, their problems in getting the services they were entitled to,
and their childrens overly long and sometimes unauthorized stays in foster care.
For this report, we examined the statutory framework governing Family Court child welfare
proceedings and the assignment of counsel for low income persons; reviewed relevant literature and
reports; analyzed data published by the New York State Office of Court Administration and the First
and Second Departments which administer the systems for assigning counsel; and interviewed dozens
of lawyers, judges, administrators and child welfare experts. To better quantify the extent of parents
concerns, we also surveyed a small sample of families about their experiences with their lawyers.
Our findings and recommendations are summarized below.
## Children languish in foster care due to inadequate legal representation of their parents
Despite a 33% increase in the past decade in the number of cases filed in New York City
Family Courts,9 there has been a 15% decrease during the same period in the number of attorneys
Calculations by C-PLAN staff, based on estimates by OCA, seem to indicate that there was not a significant
decrease in filings of child welfare petitions in 1999.
10 Estimates provided by Judge Joseph M. Lauria, Administrative Judge of New York City Family Court (May 2000).
available to represent low income persons, including birth parents in child welfare proceedings. There
are now less than 100 active members of the assigned counsel (18-B) panel in each Department. As a
result, attorneys have caseloads as high as 80-100, with some carrying over 100 cases. There are
instances when, in desperation, judges assign cases in absentia, send court officers to find attorneys andsearch the courthouse corridors themselves for available counsel. On occasion, judges briefly adjourn
cases pending assignment of counsel and temporarily remand the children to foster care. Every week in
each county, approximately 10-20 cases are adjourned because there are no attorneys available for
Even after counsel have been assigned, their high caseloads contribute to numerous and lengthy
delays of the court proceedings. In the overwhelming majority of cases, by the time the parent first
appears in court and is assigned an attorney, the child has already been removed from the home and
placed in foster care. It then takes, on average, six to seven months before the court completes the
fact-finding hearing to determine whether the child was, in fact, neglected or abused. During these
critical first months after removal, children languish in care, their relationships with birth parents disrupted
and their futures uncertain.
The small number of attorneys available for this work can be attributed, in large part, to New
York States low reimbursement rates. The current rates are $40 per hour for in-court time and $25
per hour for out-of-court time. Frozen since 1986, these fees are completely disproportionate to the cost
of maintaining a law practice in New York City. Not surprisingly, it has become impossible to retain a
sufficient number of qualified attorneys or to recruit new ones.
The dual rate system, coupled with high caseloads, has created a strong disincentive for assigned
counsel to perform the out-of-court work which is critical to any lawyers effective representation of his
or her client. Legal representation without time to meet with the client and gather and review evidence
often dooms the clients case. The data bears this out. In 88% of the child protective proceedings, the
11 In the remaining 10 - 11% of the cases, the petition is withdrawn, consolidated, transferred or dismissed for other
reasons. Child Welfare Watch, supra note 9 at 6.
child is adjudicated abused or neglected; the parents prevail on the merits in only 1.6% of the cases. 11
# Legal representation of parents is ineffective without support services
In a child protective proceeding in Family Court, there are three parties: (1) the City --
represented by an attorney and a caseworker on the staff of the Administration for Childrens Services
(ACS); (2) the child -- represented by a law guardian and, on occasion, a social
worker on the staff of The Legal Aid Society Juvenile Rights Division or a similar organization; and (3)
the parent(s), represented by assigned counsel. The first two parties work for organizations with
imperfect but extensive resources -- offices, support staff, supervision, investigators and paralegals.
However limited, these provide the necessary components of a properly functioning law practice.
Assigned counsel for the parents, by contrast, have only the barest of such help. Most either do
not have their own offices and operate from court (literally from their briefcases), or are private
practitioners sharing a receptionist with other small law offices. Most spend the entire day in Family
Court and have no clerical support or private space for meeting with clients. Until very recently, when
the Administrative Judge of the New York City Family Court corrected the situation, assigned counsel
had no access to telephones or photocopying machines. The parents attorney, and therefore the
parent, is thus at an extreme disadvantage. This explains, in part, the low success-rate in their cases and
common expressions of demoralization and dissatisfaction with the work.
PP Legal representation of parents terminates at a critical juncture
Once the court decides that a child has been neglected or abused and makes a determination
about where the child should be placed, the parents court-appointed legal representation ends.
Although not prescribed by law, this is standard practice in Family Court. The parent may not be
eligible for assigned counsel again until the next court hearing, possibly a year away, at which time a new
attorney is usually assigned.
12McGowan, Botsko & Pardee (1999). Lapsed placements in the New York City Foster Care System. Unpublisheddraft paper. New York: Columbia University School of Social Work.
In the interim, key decisions are being made by the City and the foster care agency about the
childs status and care. The parents, however, have no one to help them obtain proper visitation with
their children or the mandated services which are prerequisites for family reunification, such as housing,
parent education or drug counseling. Most significantly, although state law limits an initial foster careplacement to one year, many children remain in lapsed placements after the year is up, i.e., they remain
in care without legal authority. The parent, unfortunately, has no attorney to notify the court that the
City has failed to file a petition to either terminate or extend the placement.
A recent small study found that 39% of 328 children in foster care between 1993 and 1998
experienced at least one lapsed placement. They were in care an average of three years before the
placement lapsed, and, on average, they remained in care with no legal authority for yet another year.12
While parties have the right to petition Family Courtprose, the reality is that this avenue is not actively
encouraged, and with no access to legal advice it is highly unlikely that the parent will pursue this route.
The absence of continuity of legal representation flouts national practice standards adopted by
the National Legal Aid and Defender Association as well as recommendations by the U.S. Department
of Health and Human Services that the same legal representatives for the child, parent and State remain
involved throughout the case.
## Parents surveyed by C-PLAN expressed a high level of dissatisfaction with theirassigned counsel
In light of the above problems, it is not surprising that a small survey conducted by our office
found considerable parent dissatisfaction with the quality of their legal representation (see Appendix G).
Of those surveyed, 56% reported that their attorneys did not return phone calls, 57% reported that their
attorneys did not inform them of their legal rights and options, and only 30% reported that their attorneys
adequately represented their views in the courtroom. In their comments, many parents implied that they
viewed their court-appointed attorneys as part of an uncaring bureaucracy biased against them.
A. Short TermRecommendations
## Increase attorney reimbursement rates to $75 per hour across the board
Attorney fees under Article 18-B should be raised to a flat rate of $75 per hour for both in-court
and out-of-court work. Changing the fee rate and structure could combat the declining numbers of
active panel members, the disincentive to perform out-of-court work, and the impossibly high caseloads.
Chief New York State Judge Judith Kaye proposed such an increase early this year, to be paid for with
the $70 million dollars in criminal surcharge fees collected by the State. The Governor immediately
rejected the idea, and Judge Kaye has now proposed an alternative source of funding collecting
unpaid criminal court fines.
# Provide institutional supports to assigned counsel
At a bare minimum, assigned counsel members should be provided with private interview rooms
to meet with clients. In addition, good legal practice in this field is impossible without the assistance of
social workers to assess family needs and obtain the social and financial services which are often
necessary to achieve safe family reunification. There are a number of very small but effective model
projects that utilize this holistic, interdisciplinary approach, and these should be expanded.
## Insure continuity of representation
Rules for the assignment of counsel should be amended to require court-appointed
representation to continue throughout the life of the case until parental rights are terminated or the
family is reunified. Such continuity is essential in order for the parents to exercise their right to participate
in each critical stage of the proceedings. It would assist the court to limit adjournments, function more
effectively and reduce the number of lapsed foster care placements.
B. Long Term Recommendations
## Institutionalization of Representation
These short-term measures might ameliorate some of the worst problems, but they still fall short
of providing parents with adequate legal representation. The best long-term solution -- long embraced
by many child welfare advocates, including ACS attorneys and law guardians -- may be the
establishment of an organization, similar to the Legal Aid Society and other public defender offices, to
provide training, supervision, and interdisciplinary representation.
We believe that the additional costs associated with such a system could be offset by the
savings to taxpayers that would result from fewer children coming into foster care and shorter stays for
those who do. A detailed fiscal analysis would have to be undertaken to test this hypothesis. In the
interim, it is essential that short-term reforms be implemented, most significantly the increase in fees.
If New York State is to meet its statutory and constitutional duty of providing representation to
indigent adults in Family Court matters, immediate steps must be taken to right the wrongs of the 18-B
system. In the current beleaguered system, everyone loses. The parents suffer an injustice, the children
languish in care, and the judicial process is sorely undermined. Even the most dedicated and talented
attorneys cannot overcome the barriers placed in their way, and many view the situation as a
prescription for malpractice. Finally, the long term social and financial costs to the City are
extraordinary. If the reforms we suggest were implemented, everyone would gain: money would be
saved, Family Court would function more effectively, and families would be strengthened. Last, but not
least, those who are the helpless victims of a troubled system the children would more likely find the
safety, stability and permanence to which they are entitled.
11 Id at 356; See also Lassiter v. Department of Social Services , 452 U.S. 18 (1981); Stanley v. State of Illinois , 405
U.S. 645 (1972); Cleaver v. Wi lcox, 499 F.2d 940 (9th Cir. 1972).
12 F.C.A. 262; L. 1975, c. 682.
Social Services Law 397(2)(a)-(c).
Created in 1996, ACS is the successor to earlier New York City child welfare agencies the Bureau of Child Welfare,
Special Services for Children, and, most recently, the Child Welfare Administration. ACS is technically a division of
the New York City Human Resources Administration (HRA), which is the States designated agent for child welfare
purposes, but it is operationally independent of HRA.
S.S.L. 398(2)(a)-(f), (6)(a)-(p).
[a] parents concern for the liberty of the child, as well as for his care and
control, involves too fundamental an interest and right to be relinquished to
the State without the opportunity for a hearing with assigned counsel if the
parent lacks the means to retain a lawyer.11
In 1975 the Legislature codified that decision, mandating the assignment of counsel to indigent parents
in permanent neglect, family offense, child protective, custody, adoption and contempt proceedings.12
B. New York Citys Child Welfare System
1. The Statutory Scheme
Title 2, Article 6 of the Social Services Law authorizes local governments to investigate
complaints of neglect and abuse and to institute proceedings against a parent or other adult in Family
Court.13 In New York City, the Administration for Childrens Services (ACS) is responsible for
implementing that law.14 ACS has broad powers to protect children from injury and to foster their
well-being. It may take steps to preserve and stabilize the family of a child considered at risk; remove
a child from his home; establish, operate, maintain and approve facilities for the care of children alleged
to be abused or neglected; place such children in foster care which may consist of family homes,
agency boarding homes, group homes or institutions; and supervise children being cared for away from
their families until such children reach age twenty-one.15
S.S.L. 384-a. See al so S.S.L. 358-a, 384-b, 392, and F.C.A. 1012.
18 F.C.A. 1022.
19 F.C.A. 1024; S.S.L. 417.
Tenen baum held, in part, that the Citys removal of a child on an emergency basis without judicial authorization was
an infringement of the parents and childs proced ural due process rights absent a reasonable basis for believing the
child was in imminent danger.
Id. The parent can also choose not to challenge ACSs removal of the child from the home. F.C.A. 1021. In 1998,
the Court authorized the removal of over 12,000 children from their homes. Child Welfare Watch (a joint publication
of the Center for an Urban Future and the New York Forum), Families in Limbo: Crisis in Family Court(Winter
1999, No. 4) at 4.
The law requires ACS to file a petition in Family Court alleging neglect and/or abuse in order
for the court to legally place the child in the custody of the City. 16 But children can initially enter the
foster care system in one of several different ways: their parents can place them voluntarily,17 a court
can order a child removed from the home and placed in foster care before ACS has filed a petition, 18
or ACS can remove a child temporarily without court order where there is reasonable cause to believe
the childs life or health is in imminent danger.19 Although the Second Circuit Court of Appeals has
ruled that this limitation on pre-hearing removal is constitutionally mandated, see Tenenbaum v.
Williams, 193 F.3d 581 (2d Cir. 1999), in practice ACS often removes children prior to filing a
petition or getting court approval for removal, even when the case is one of alleged neglect rather than
When a child has been removed from the home, the parent (called the respondent) can
request a hearing for the return of child. This hearing -- known as a 1028" in reference to the
governing section of the Family Court Act -- is supposed to be held within three days of the request.21
To keep the child in foster care, the burden of proof is on the City to show that there was imminent
risk of harm to the childs life or health, necessitating the removal.22
F.C.A. 1044; See also F.C.A. 1012.
F.C.A. 1055, 1051(f)(i).
F.C.A. 1055(b)(i). It has been reported that even if ACS does not want placement extended, an extension of
placement petition requesting discharge must be filed in order to be in full compliance with the Federal and State
F.C.A. 1055(b). See also S.S.L. 392.
Once ACS files a petition, unless it is withdrawn or dismissed, the court must hold a fact-
finding hearing to determine if there is enough evidence to find that the child has been abused and/or
neglected.23 If the court so finds, it must then hold a dispositional hearing to determine what would
be in the best interest of the child.24 The court has many options at this point, some of which are to
release the child to the parent with ACS supervision for up to one year,25 or -- as occurs in the
overwhelming majority of cases -- place the child for up to one year with a relative, other suitable
person, or in non-kinship foster care.26
Dispositional orders may not last more than one year. Thus, if ACS believes that the
respondent needs more time to comply with the orders requirements, an extension of placement is
required. If the child is placed outside the home, the law requires that the extension of placement
petition be filed at least 60 days prior to the end of the twelfth month of placement.27 Similarly, while a
child is in foster care, the law requires a permanency hearing to be held every 12 months to review the
status of the child and the appropriateness of the permanency plan.28 In practice, ACS sometimes
fails to timely file extension of placement petitions, leaving children in the legal limbo of lapsed
placements. ACS usually corrects the error shortly thereafter, but in some cases children remain in
lapsed placements for long stretches of time.
Foster care ends, ultimately, in one of several ways: a child can be discharged from foster care
S.S.L. 383-c, 384.
F.C.A. 1055-a. In 1994, there were 287 status hearings held. In 1998, the number of adoption status hearings
jumped to 5,500. Child Welfare Watch, supra note 22, at 1.
Pub. L. No. 105-89, 111 Stat. 2115.
See S.S.L. 384-a(2)(c)(ix); 384-b(3), which implemented ASFA.
and returned to the parent, relative or other suitable caretaker; a child can reach the age of 21, at
which point foster care funding ends (age out); or ACS can file a termination of parental rights
(TPR) petition to free the child for adoption.29 A parent can also voluntarily surrender parental
rights.30 Once a child is freed for adoption, the court must hold annual foster care review hearings in
order to evaluate the appropriateness of the childs service plan and placement, and to review what
services have been provided to ensure and expedite the childs adoption.31
In 1997, in an effort to expedite the process and prevent overly long foster care stays,
Congress enacted the Adoption and Safe Families Act (ASFA).32 It requires the filing of a petition to
terminate parental rights for any child who has been in foster care for 15 of the last 22 months.
Exceptions to this rule include cases in which the child is placed with a relative, there is a compelling
reason why termination would not be in the childs best interest, or the foster care agency has not
provided theparent with necessary services for the safe return of the child.33
2. Who Represents the Parties in Abuse and Neglect Proceedings
a. Legal Counsel for the Children
In order to provide lawyers for children in these cases (law guardians), the New York State
Office of Court Administration (OCA) contracts with the Legal Aid Society, one of the oldest and
34 F.C.A. 243(a). In November 1965, Mayors Executive Order No. 178 was signed, designating the Legal Aid
Society as the provider of legal representation to children and indigent adult criminal offenders.
Telephone interview by C-PLAN Director Hank Orenstein with Monica Drinane, Attorney-in-Charge, Legal Aid
Society, Juvenile Rights Division (March 7, 2000).
This caseload estimate is based on informal interviews with JRD staff.
38 F.C.A. 243(b), (c); New York Rules of Court 611.3, 679.11; 22 NYCRR 611.3, 679.11; Judiciary Law 35.
39 F.C.A. 1016; 1055(b)(i), (iii); 1055-a(3)(c), (12).
largest private public interest law firms in the United States, through its Juvenile Rights Division (JRD).34
The annual budget for JRD is approximately $20 million, which funds the representation of
children in juvenile delinquency matters, PINS cases, appeals, special litigation, and child protective
proceedings. The latter category makes up 88% of the JRD caseload.35 There are approximately 125
JRD attorneys and 36 social workers working in Family Court.36 It has been reported that JRD
attorneys carry an average caseload of over 100.37 However, JRD is a fully staffed law office with
attorneys, receptionists, paralegals and social workers to work with the law guardians. The staff
receives supervision, training, and education on an on-going basis. Salaries for attorneys range from
$36,750 for new attorneys up to $80,000 for attorneys with 25 years of Legal Aid Society service.
Where appointment of the Legal Aid Society is not appropriate, due, for example, to a conflict
of interest, the court may turn to Lawyers for Children, another public interest law firm, or a member of
a panel of lawyers (assigned counsel) to represent the child.38 The appointment of a law guardian for
the child generally continues for the life of the court case (until family reunification or termination of
parental rights). The appointment technically lapses if the dispositional order placing the child in foster
care has expired and ACS has not filed a petition to extend the foster care placement or to review the
status of a child freed for adoption.39 In practice, however, the child is never without counsel during the
child protective proceeding because JRD, as a matter of policy, does not abandon the case.
40 Scoppett a, N., Protecting the Children of New York: A Plan of Action for the Administration for Childrens
Services, (December 19, 1996). According to DLS staff, there are some instances where this is not possible, but,
whenever possib le, DLS attempts to have the same attorney s tay on a matter until the case is completed.
41 This is again as per interviews with DLS staff.
The Legislature adopted Article 18-B of the County Law in 1965. L. 1965, c. 878. See Append ix A for a detailed
discussion of the govern ing regulations . See also New York City Bar Associations Assigned Counsel Plan (April
28, 1966); Mayors Executive Order No. 178 (December 1, 1965); Judiciary Law 35; 22 NYCRR 611; 22 NYCRR
b. Legal Counsel for the City (ACS)
ACS, the petitioner in involuntary foster care proceedings, is represented by the City Law
Departments Division of Legal Services (DLS), which has an annual budget of approximately $17
million. DLS is comprised of approximately 250 attorneys and 325 staff members who have an array
of investigative and social service supports available to them. Salaries for ACS line attorneys range
from $40,000 for new law graduates to just under $60,000 per year, and higher for managers.
Until recently, child protective cases were not necessarily handled by the same DLS attorney
for the duration of the matter. However, ACS Commissioner Nicholas Scoppettas December 1996
Plan of Actionstates that DLS attorneys are required to follow a case from intake to termination of
parental rights or reunification of the family, enabling them to become familiar with the facts of the case
and the unique qualities of the family. 40 This is also a reflection of ACSs realization that the child
protective case does not end once a disposition is entered, but only once the child is returned to the
parent or has been freed for adoption.41
c. Legal Counsel for the Parents (Respondents)
Indigent parents may be represented by assigned counsel in child protective proceedings
pursuant to Article 18-B of New York States County Law (often referred to as 18-B attorneys,
although more appropriately called assigned counsel).42 Article 18-B requires each city or county to
develop a plan for legal representation for indigent persons entitled to counsel under Family Court Act
Telephone interview by C-PLAN intern Howard Goodman with Isabel Alicea, Director, New York State Assigned
Counsel Panel (December 7, 1999). One way to estimate the number of individuals represented by assigned counsel
in Family Court proceedings (not just child protective proceedings, but in all matters), is to look at the number o f
vouchers filed, which was 16, 735 citywide in 1998. Id. This, however, is not ver y reliable, as each voucher
represents a proceeding, not a client (e.g. a panel member may file several vouchers for one client; one for the fact-finding and disposition, another for the extension of placement if the same attorney represents the client). In
addition, each voucher for a parent may cover several children, each of which has a different Family Court file
Mark E. Courtney, The Costs of Child Protection in the Context of Welfare Reform, THE FUTURE OF CHILDREN,
Spring 1998, 88, 95, cited in Martin Guggenheim, The Foster Care Dilemma and What to Do Abou t It, JOURNAL OF
CONSTITUTIONAL LAW, December 1999, 141, 145.
The Administration for Chil drens Services, Community Data Profiles (March 1998). In the five community districts
with the lowest median incomes, four of which were in the B ronx, 34 to 79 abuse and neglect reports were made for
every 1,000 children, compared to 31 reports for every 1,000 children citywide. Id. The impact of poverty on
involvement in the child protection system is also evident when comparing the percen t of abuse petitions filed
versus the percent of neglect petitions. In 1999, only 17 percent of the petitions filed in New York City alleged
abuse, while the remaining 83 percent involved charges of neglect against parents who allegedly failed to properly
care for their children. See Guggenheim, supra note 44. See also Kathleen Bailie, The Other Neglected Parties in
Child Protective Proceedings: Parents in Poverty and the Role of Lawyers Who Represent Them , 66 FORDHAM L.
REV. 2317 (1998).
Child Welfare Watch (a joint publication of the Center for an Urban Future and the New York Forum), Special Issue:
Race, Bias & Power in Child Welfare (Spring/Summer 1998), p. 1.
262 or 1120. The same statute provides counsel for indigent persons charged with a crime, or
entitled to counsel under the Surrogates Court Procedure Act 407.
Unfortunately, no statistics are kept by OCA or the administrators of the assigned counsel
panels on the percent of Family Court respondents represented by assigned counsel.43 However, it is
likely that a large proportion of parents involved in child protective proceedings cannot afford to hire
their own counsel as most come from communities of low socio-economic status. Studies show that
families earning incomes below $15,000 per year are 22 times more likely to be involved in the child
protective system than families with incomes above $30,000.44 In New York City, in community
districts with median incomes of less than $25,000, the average foster care placement rate was 46 for
every 1000 children, compared with 13.7 for every 1000 children in community districts with median
incomes of $34,000 and above.45 It is estimated that of the 41,198 children in foster care in 1998, 3%
were white, 73% were African American, and fewer than 24% were Latino.46
F.C.A. 262, 1120.
48 Judiciary Law 35(4); F.C.A. 248.
49 Article 18-B 722. The governing body of each county and the governing body of the city in which a county is
wholly contained shall place in operation through out the county a plan for providing counsel to persons ... who are
entitled to counsel pursuant to section two hundred sixty- two or section eleven hundred twenty of the family court
act ... who are financially unable to obtain counsel.
50 Isabel Alicea, supra note 43 (October 14, 1999). Telephone interview by C-PLAN intern Howard Goodman with
Martin Becker, New York State Criminal Justice Coordinator, Assigned Counsel Plan.
This figure comes from calculations based on costs reported by the First and Second Department App ellate
Divisions to the New York State Unified Court System. See Appendices C and D. However, anoth er document
generated by the New York State Unified Court System shows the total cost to the City for Criminal and Family Court
assigned counsel to be $44,620,258. See Appendix B, Office of the Criminal Justice Coordinator, Assigned Counsel
Plan Attorney Payments - 1998.
Office of the Criminal Justice Coordinator, supra note 51. This document reports that the City spent only $7,773,030
on Family Court representation in 1998, which is $2.1 million less than the total amounts based on figures from the
First and Second Department Appellate Divisions reports to the New York State Unified Court System. The reason
for the discrepancy is unclear.
Assigned counsel in Family Court are attorneys who are certified to be part of a panel
administered by the relevant Appellate Division. Panel members can be assigned to a variety of cases,
including representation of respondents in child protective proceedings; representation of petitioners,
respondents or children in custody and visitation matters; petitioners and respondents in family offense
(domestic violence) proceedings; and respondents in juvenile delinquency proceedings.47 They are
typically solo practitioners or attorneys from small law offices in private practice.
New York State is responsible for the cost of law guardians for children,48 while New York
City bears the cost of legal representation of adults.49 Reportedly there is no set budget for the
assigned counsel panels,50 but rather a pot of about $60 million dollars set aside to cover the Citys
In calendar year 1998, the City spent $37,692,460 on assigned counsel in Family and Criminal
Courts combined -- $9,850,928 for Family Court and $27,841,532 for Criminal Court.51 The Family
Court portion represents approximately 130,589 in-court hours and 107,411 out-of-court hours.52
The Citys costs for assigned counsel representation in Family Courts in the First Department (Manhattan and the
Bronx) in 1998 were as follows: $4,141,195 for attorneys, $295,075 for experts and $146,780 for Family Court appeals,
for a total of $4,583,050. The First Department spent about $18,209,610 for representation in Criminal Courts. Report
to the N.Y. Unified Court System for Year January-December 1998, Representation of Indigent Defendants, New
York and the Bronx. See Appendix C. The Citys costs in the Second Department (Brooklyn, Queens and StatenIsland) in 1998 were as follows: $4,682,962 for attorneys, $445,575 for experts, and $139,343 for appeals, for a total
cost of $5,267,880. The Second Department spent about $ 9,631,922 on assigned counsel representation in Criminal
Courts. Report to the N.Y. Unified Court System for Year January-December 1998, Representation of Indigent
Defendants, Kings, Queens and Richmond Counties. See Appendix D.
54 Article 18-B, 722-b. See also F.C .A. 245; Judiciary Law 35. In January of 2000, Chief Judge Judith Kaye
proposed a fee increase to $75 per hour for both in and out-of-court work. See State of the Judiciary Address,
New York Law Journal (January 11, 2000). In the Spring of 1998, the Office of Court Administration proposed an
increase to $50 per hour for work in and out of court, but legislators refused the rate raise. The Giuliani
administration opposed the hike because it would have increased the citys budget by $21 million. Child Welfare
Watch, su pra note 22, at 6. On January 1, 1990, rates were adopted for assigned criminal counsel in the Federal
Courts in the Southern and Eastern Districts of $75 per hour, whether in or out of court. Task Force on the
Representation of the Indigent, New York County Lawyers Association Task Force on the Representation of the
Assigned Counsel Compensa tion Committee , New York Law Journal (February 1997). See also Section II(D), infra
Article 18-B 722-b, L. 1987, c. 317 2.
56 Payment vouchers that exceed the $800 cap must be accompanied by detailed, sworn statements by the submitting
attorney. Article 18-B 722-b.
Copies of the reports prepared by the First and Second Departments are contained in Appendices C
and D of this report.53
Panel attorneys are reimbursed $40 per hour for work done in court or before a magistrate,
judge or justice, and $25 per hour for time reasonably expended out of court.54 New Yorks rates
have not been raised since 1986.55 Compensation to assigned counsel may not exceed $800 per case,
although a court may provide for compensation in excess of this amount under extraordinary
circumstances.56 Although panel administrators report that judges frequently authorize compensation
above the $800 per case, some judges have indicated that they are discouraged from doing so.
Administrative policy also reportedly discourages members of the assigned counsel panel from
billing for the equivalent of more than seven in-court hours per day. Any voucher that exceeds seven
hours in one day must be accompanied by a sworn document detailing the excess hours. In informal
interviews, assigned counsel members indicated that it is impossible to do the paperwork necessary to
National Legal Aid and Defenders Association, Standards for the Administration of Assigned Counsel System,
ABA Standards for Criminal Justice, Standards 5-2.4.
Daniel Wise, City Will Increase Hour ly Rates for Future Bond Counsel, New York Law Journal, p.1, col.3 (October
15, 1999). See also Appendix E, Christianson, S., Cut-Rate Justice or High-Priced Fleecing? Empire State Report at
55, 56 (May 1999).
60 Article 18-B 722-b. Pursuant to F.C.A. 1052-b, assigned counsel is required to advise their clients of their right
to appeal, and, if the client so wishes, to file such appeal prior to submitting a voucher for reimbursement. However,
70% of the responden ts to C-PLANs survey (s ee Appendix G) indicated that their court-appointed attorney did not
advise them of their right to appeal a final order, 74% reported that their attorney did not explain the appeals process,
and 53% indicated that, even after telling their attorney of their desire to appeal, the attorney did not file the appeal.
justify the excess time since they generally spend all day, every day in court, with no office space or
resources to complete such administrative tasks.
National standards recommend that assigned counsel be compensated at an hourly rate with no
distinction between rates for services performed in and out-of-court.57 The American Bar Association
Standards for Criminal Justice state that assigned private counsel should receive compensation at a
reasonable hourly rate for all hours necessary to provide quality legal representation. 58
It is interesting to note that the rates paid by New York State and local governments for work
by private attorneys handling government matters do not distinguish between in-court and out-of-court
time and are vastly higher than the reimbursement rates for assigned counsel. For example, the
Metropolitan Transit Authority (MTA) and Corporation Counsel pay outside counsel at least $250 per
hour (in once recent case, the MTA was paid $350 per hour), and New York Citys Education
Construction Fund pays an average rate of $325 per hour.59
Assigned counsel submit claims for compensation and reimbursement to the judge hearing the
case along with a sworn statement specifying the time expended, services rendered, and expenses
incurred.60 The judge approves the voucher, which is then forwarded to the appropriate Administrator
for payment. This system seems to make good sense on the whole, as the judge before whom the
61 While most judges favor this system, some do take liberties with slashing vouchers. In particular, there was a
Manhattan Family Court judge who believed no letter should take more than 15 minutes to write. Any voucher that
cited out-of-court work on a letter that took over 15 minutes was summarily reduced by the judge. Unfortunately,
the appointment and voucher systems tend to give some clients the impression that their attorneys are in cahoots
with their adversaries and the judges. See also Appendix G.
62 Article 18-B 722-c.
63 Id .
64 Isabel Alicea, supra note 43 (October 14, 1999). This is pursuant to Article 18-B 722-c. Judges do have the
option to override or adjust the amount set by OCA.
65 Article 18-B 722-c.
66 Isabel Alicea, supra note 43.
attorney appears is in the best position to gauge the amount of work expended by that attorney.61
Services other than counsel, such as investigative or expert services, are also provided for by
Article 18-B.62 The court can authorize them upon a finding of necessity in an ex parte proceeding.63
Reimbursement rates are set by OCA; state certified social workers receive $45 per hour,
investigators receive $32 per hour, psychologists receive $90 per hour, and psychiatrists receive $125
per hour.64 Compensation cannot exceed $300 per case except in extraordinary circumstances.65 It
is reported that this cap is routinely overridden by judges.
This resource for experts, however, is greatly underutilized. In 1998, for both the First and
Second Department, there were only 801 expert vouchers filed for Family Court cases (which covers
the entire range of cases, not only child protective proceedings).66 Both assigned counsel and Legal
Services lawyers report that judges often question the need for such experts, thus undermining strategic
legal decisions of the attorneys.
Child Welfare Watch, sup ra note 22 at 11. From 1994 to 1998, there was an increase of 13% in the number of child
welfare petitions filed. Child Welfare Watch, supra note 22 at 11. Calculations by C-PLAN staff, based on estimates
by OCA, seem to indicate that there was not a significant decrease in filings of child welfare petitions in 1999.
Following the 1999 New York State implementation of federal ASFA, however, the number of petitions to terminate
parental rights filed in Family Court jumped by one-third to 4,201. Child Welfare Watch, Too Fast for Families
(Winter 2000) at 6.
68 New York State Unified Court System, Assigned Coun sel Compensation Report, New York Law Journal (January
A 1996 study by OCA demonstrates how common delays in proceedings are: of 590 abuse cases reviewed in New
York City, 307 had six or more adjournments between the filing of the petition and completion of the fact-finding
hearing. Fifty-three of those cases had six or more adjournments from the completion of the fact-finding to the
completion of the dispositional hearing. In the Bronx alone, of 216 abuse cases reviewed, 131 had six or more
adjournments from the filing of the petition to completion of the fact-finding. OCA, Original Dispositions of Child
Protective Petitions Involving Abuse: Adjournments From Filing Petition to Completion of Fact-Finding Hearing
(1996); OCA, Original Dispositions of Child Protective Proceedings Involving Abuse: Adjournments From
Completion of Fact-Finding Hearing to Completion of Dispositional Hearing (1996).
II. - THE CRISIS IN FAMILY COURT
A. The Grossly Insufficient Number of Attorneys
Representation in Family Court has reached the point of crisis. Currently, there are less than
100 panel members in each of the five boroughs, yet the number of cases filed in Family Court citywide
has continued to rise. In 1998, there were approximately 230,000 total filings (47,271 of which were
child protective filings),67 an increase of 32.4% over 1989.68 The number of attorneys actively
accepting cases dropped 15% during the same time period.69 The system for handling child welfare
cases is so backlogged that on average it takes six to seven months (180-210 days) to complete the
fact-finding hearings in which the court must determine whether abuse or neglect has occurred.70 In
most instances, the children are in temporary foster care during this entire time.
While the low reimbursement rates for the assigned counsel system have been the focus of
reform efforts for the last several years (see note 142, infra at 36), the crisis is now more severe, as
there are not enough attorneys to handle the work. Ten to 20 times a week some parents and children
are forced to return to court on a subsequent day in order to be assigned counsel because there is such
As per Administrative Judge of New York City Family Court Joseph M. Lauria. C-PLAN received a call this May
from a social worker who se client wasnt assigned an attorney u ntil she had returned to co urt for the third time.
Others have advised C-P LAN staff that it has become commonplace fo r parents to be told to come back to cou rt on
another day because no attorney is available. In our survey (see Appendix G), 31% of those questioned indicated
that they were not assigned an attorney on the first day they appeared in court.
These figures are as of October 31, 1999. Telephone interview by C-PLAN Director Hank Orenstein with Katharine
Law, Administrator, Law Guardian Plan, First Department (November 24, 1999).
73 Report to the N.Y. Unified Court System, supra note 53 (see Appendix C).
74 Katharine Law, supra note 72.
a dearth of attorneys.71 Even more disturbing, it appears that children sometimes are temporarily
remanded (placed in foster care) by the courts without legal representation for their parents. Those
attorneys who are available for assignment carry inordinately high caseloads.
1. The First Department (Manhattan and the Bronx)
Currently, there are 141 attorneys certified to practice on the Family Court Assigned Counsel
Panel in the First Department (64 in the Bronx and 74 in Manhattan).72 There is, of course, a significant
difference between the number of attorneys certified to practice on the panel and the number who
actively accept cases. For example, the number of attorneys actively accepting cases in Manhattan
currently may be as low as 44.
In 1998, 9,765 Family Court cases were referred to assigned counsel in the First Department.73
Caseloads of assigned counsel in both boroughs are reported to be as high as 80 to 100 cases, with
some attorneys carrying over 100 cases.74 One panel member interviewed reported that he was
carrying 135 cases, with approximately 55 that were set to go to trial. He explained that the only way
to manage such a heavy caseload is to attempt to reduce the number of cases going to trial working
through the facts with his clients and encouraging those with less favorable facts to make an admission.
C-PLAN staff worked on a case where both ACS and the foster care agency were prepared to ask
the judge to approve a trial discharge of three children to their mother. Because the court-appointed
Previously, the law required an attorney applying to the assigned cou nsel panel to have trial court experience
providing counsel in at least two of the following: (a) neglect or PINS proceedings; (b) child protective, foster care
review, or guardianship and custody proceedings; or (c) paternity and child support proceedings, termination of
parental rights, adoptions, or family offense proceedings. 22 NYCRR 611.7; New York Rules of Court 611.7
Katharine Law, supra note 72.
attorney for the mother did not appear at two successive court dates, explaining that she was in court
on those days but occupied with other cases, the proposed discharge was delayed for several months.
In order to cope during this time of severe crisis, several measures have been taken in the First
Department. As early as 1997, the regulations carefully enumerated requirements of specific trial court
experience for admission to the panel were rescinded.75 Partial certification is granted in specified
practice areas to applicants who lack sufficient experience to qualify for full admission to the panel.76 In
1998, there were approximately 20 applicants to the First Departments assigned counsel panel. All
20 of them were approved, most with partial certification.77
While in theory partial certification increases the number of attorneys on the panel, the reality is
that a partially certified attorney cannot take cases outside the area for which certification has been
granted. In this situation, a judge has to send a court officer to locate a panel member certified in the
area of law relevant to the case, causing delays and possibly requiring an adjournment if no attorney can
be located on that day.
Currently, the assignment plan for the panel in the First Department involves one or more panel
attorneys volunteering as primaries to be assigned to the Intake Part of Family Court one or more
days per week where the judge in that Part assigns them new cases. To remain on the panel, attorneys
are required to work six intake days per year. This requirement has provoked some panel members
who also maintain private paying clients to withdraw from the panel.
78 Telephone interview by C-PLAN Director Hank Orenstein with Harriet Weinberger, Administrator, Assigned
Counsel Panel, Second Department (November 27, 1999).
79 Report to the N.Y.S. Unified Court System, supra note 53 (see Appendix D).
While the attorney on intake theoretically must accept any case that is referred, many attorneys
apparently refuse to take certain kinds of cases, forcing the court officer to go hunting for an alternative.
In other cases, the attorney on intake accepts the case initially but does not actually handle it; rather he
or she hands it off to a colleague. This of course leaves the client completely in the dark as to whether
he or she is represented by counsel and, if so, by whom.
The shortage of attorneys, and of those willing and able to accept certain kinds of cases, makes
the judges work impossibly difficult and demoralizing and also leads to the near breakdown of the
judicial proceedings. One judge reported having a delinquency case alleging the six respondents acted
in concert. It was clear from the allegations that the respondents would probably be placed in custody.
The judge could not find six panel members to represent the respondents. She took to the hallways in
her robes, accompanied by a court officer, to try to locate six panel members. The only way she could
successfully round-up six attorneys was to assure them that they would not have to remain on the case;
she simply needed attorneys present for arraignment. Thereafter, she would assign the cases to other
2. The Second Department (Brooklyn, Queens and Staten Island)
Currently, there are 190 panel members in the Second Department (90 in Brooklyn, 60 in Queens and
40 in Staten Island).78 As with the First Department, there is a significant difference between the
number of attorneys on the panel and the number that actively take cases.
In 1998, there were 7,645 Family Court dispositions in which assigned counsel was involved.79
Unfortunately, the Second Departments computer system does not report the number of Family Court
81 Harriet Weinberger, supra note 78.
83 Interview with Judge Joseph M. Lauria, Administrative Judge of the New York City Family Court (December 20,
84 Id. This was also reported by Harriet Weinberger, supra note 78.
New York Rules of Court 679.6(c); 22 NYCRR 679.6(c). It has been reported that the requirements are rarely
waived. Harriet Weinberger, supra note 78 (March 9, 2000).
Harriet Weinberger, supra note 78 (March 9, 2000).
cases initially referred for assigned counsel.80 According to the panel administrator, however, assigned
counsel in the Second Department carry caseloads as high as 100.81 In one instance, a newly certified
attorney had a caseload of 80 after only three months on the panel. 82
While at one time there were four attorneys in Brooklyn who would be responsible for intake
every day, judges are now struggling to identify one to two panel members to take on this
responsibility.83 At times, judges send court officers out into the courthouse to locate panel attorneys to
take new cases, and in Brooklyn, it has been reported that attorneys have been assigned cases in
absentia.84 There are reports that panel attorneys who do agree to work intake can pick up 18 to 20
new cases in a day.85
The Rules for the Second Department allow the minimum requirements for admission to the
panel to be waived if the applicant is believed to be otherwise qualified by reason of education, training
or substantial trial experience.86 The Second Departments admission standards may be more
stringent than those in the First Department; of 37 applicants in 1999, only 25 were approved for
88 F.C.A. 1022(a).
89F.C.A. 1023. The notice is supposed to include the date and the time that the application will be made, the
address of the court where the application will be made,...the right of the parent ... to be present at the application
and at any hearing held thereon, and of the right to be represented by counsel .... F.C.A. 1022(a)(iii) requires that
any order directing the temporary remov al of the child shall state ... whether the respondent was present at the
hearing, and, if not, what notice the respondent was given of the hearing ....
F.C.A. 1024(b)(iii). There are provisions for written notice coincident with the removal regarding the parents right
to apply to the court for the return of the child; the name, title, organization, address and telephone number of the
agency to which the child will be taken; and the number of the person to be contacted for visits with the child, if
available. F.C.A. 1022(d).
F.C.A. 262(a), 1033-b(c).
B. Timing of Assignment of Counsel
In most cases, a respondent parent does not have an attorney until the child has been out of the
home for several days, at the very least. Where there is an emergency, ACS can remove a child with
or without prior judicial authorization. The court can issue an ex parte preliminary order directing
placement of the child in foster care before ACS has filed an abuse or neglect petition. 88 It is highly
unlikely that the parent would know that such a proceeding had been commenced since ACS does not
necessarily give the parent prior notice. The statute only requires ACS to make every reasonable
effort, with due regard for any necessity for immediate protective action, to inform the parent...of the
intent to apply for the order and the date and place of the court proceeding.89 Where an emergency
removal without court order is instituted which is the usual practice in New York City -- ACS is
supposed to give the parent written notice at the time of the removal with all relevant information,
including the right to go to court to challenge the removal.90
In all of these instances, the parent is assigned an attorney only upon making an appearance in
Family Court.91 At that point, without the benefit of any background information or investigation, the
attorney must make a whole host of weighty decisions, only the first of which is whether to request a
In one instance, a mother who contacted C-PLAN was never even advised by her court-appointed attorney of herright to a 1028" hearing. By the time a judge first hears the matter, her children will have been in temporary foster
care for almost three months.
It is presumed that an attorney would use the continuance to do some investigation and meet with the client. Forty-
three percent of the respondents to C-PLANs survey, however, indicated that they did not have an opportunity to
meet with their court-appointed attorney prior to appearing before a jud ge (see Appendix G).
C-PLAN recently received a call about a 1028 hearing that has been on-going for the last 10 months.
These often involve further extensive adjournments and delays, taking an average of 180 to 210 days to complete.
1028" hearing to challenge the removal.92 The attorney is faced with a Hobsons Choice: proceed
with the hearing without sufficient time to prepare, or seek a continuance and require the child to stay in
foster care in the interim. More often than not, a good lawyer will opt for the continuance.93 This
means, in essence, that the court does not conduct an inquiry into the legality of the removal until several
weeks after the child has been removed from the home.94
Technically, the 1028" is only a preliminary hearing, since the final adjudication of whether the
parent was neglectful or abusive does not occur until many months thereafter in a fact-finding
hearing.95 This preliminary hearing, however, sets the tone for the entire future of the case and is an
early opportunity for the parent to persuade the court that the child can be safely returned home
pending the fact- finding hearing. In light of this, it is surprising that, reportedly, many attorneys counsel
parents to waive the 1028, perhaps because they believe it will be a waste of time.
In sum, this entire process provides only the barest legal protection for the parent. Counsel is
assigned only after the child has been removed, the attorney has no opportunity to interview the parent
before the court proceeding, and there are lengthy delays between each of the stages of the case: initial
appearance, 1028" hearing, fact-finding, and finally, disposition, when the court decides, among
other things, whether the child should go home or into care.
All in all, a parent has little if any chance of prevailing, particularly if the assigned attorney is
Child Welfare Watch, supra note 22 at 6.
97 F.C.A. 1052 - 1057.
98 Harriet Weinberger, supra note 78. While F.C.A. 1052-b requires the attorney for the respondent to inform their
client of the respondents right to appeal a dispositional order, it in no way mandates that assignment of counsel
end upon entry of the dispositional order.
overwhelmed with cases and/or disinclined to spend out-of-court ($25/hour) time investigating the facts
and getting to know the family.
Moreover, the courts statutory role as arbiter is severely hampered by the accused parents
inability to fully present his or her side of the case. Understandably, once a parent has been accused of
endangering the child, no one -- including the parents attorney or the court -- wants to risk sending the
child home before there has been an adequate investigation of the facts. Unfortunately, the net effect is
that where the health and safety of children are involved, a parent accused of neglect or abuse is guilty
until proven innocent.
C. Duration of the Assignment of Counsel
After the court has completed the fact-finding stage, it may require further investigation to
prepare for issuance of a dispositional order regarding what should happen to the child. If the parent
has been exonerated -- which occurs in only 1.6% of the cases96 --the child will be returned home. If
the court makes a finding of neglect and/or abuse, the judge may continue the foster care placement,
enter a suspended judgment, issue an order of protection, and/or send the child home and place the
parent under the supervision of ACS.97 At that point, court-appointed representation of the parent
Termination of the appointment of counsel for the parent is not mandated by law, but is
standard practice in Family Court.98 This practice has enormous repercussions for parents. The initial
99 F.C.A. 1055.
100 Any interested person acting o n behalf of the child placed in foster care may petition th e court for an order
terminating placement where an application for the childs return home was made to the agency with whom the child
is placed, and the application was denied or was not granted within thirty day s from the day the application was
made. F.C.A. 1062(a), (b).
101 In practice, assigned counsel sometimes, although not often, choose to represent their clients beyond the
disposition of a foster care case and then seek payment by filing a motion requesting to be assigned nunc pro tu nc.
[I]t would be extremely unusual for an attorney to remain on a case post-disposition, Katharine Law, supra note 72.
102 S.S.L. 384-b(7)(f)(1)-(5).
disposition is not the completion of the matter, unless, of course, no finding is made and the case is
dismissed. The matter continues under the courts jurisdiction and will be re-calendared at least every
twelve months for placement to be extended.99 Although parents have a legal right to file an
application for earlier return of the child (termination of placement),100 after disposition they have no
attorney to advise them of their right to do so. If they are aware of this right, they must bring the
application pro se. While a request to be provided the same lawyer as before may be granted, it is
more typical that the parent is appointed a different attorney.101
In one striking example of the impact of this practice, a C-PLAN client contacted her attorney
right after the dispositional hearing in which her children were placed in foster care for one year. The
parent had a number of questions and concerns, but the attorney informed her that she was no longer
able to speak with the parent, because she no longer represented her.
It is during this period between disposition and extension of placement that ACS is responsible,
either directly or through a contract with a foster care agency, to employ diligent efforts to strengthen
the relationship between parent and child and to work to reunify the family.102 The foster care agency
has multiple and sometimes conflicting responsibilities: to place the child in a foster care boarding home
or congregate care facility, to work with the birth family, and, under ASFA, to prepare for the
termination of parental rights if reunification is not timely.
See the discussion of legislation d rafted by OC A, infra at 27.
104 S.S.L. 409-e(1), (2).
105S.S.L. 409-e(3). In 1999, an audit by the Comptrollers Office found that of 265 Service Plans analyzed, 91%were not signed by a parent or relative where such a signature would have been appropriate. While the parents
signature is optional, obtaining so few signatur es provides no evidence that parents are actually reviewing or
included in the Service Plan Reviews. Hevesi, A., Audit of the Administration for Childrens Services Efforts to
Move Children Out of Foster Care, (November 30, 1999). According to a May 1994 audit of case records by the New
York State Comptrollers Office, parents did not participate in 79% of semi-annual Service Plan Reviews. In the
majority of these cases, parents were not notified of these meetings. Child Welfare Watch (a joint publication of the
Center for an Urban Future and the New York Forum),Restoring the Community Connection (Winter 1997) at 6.
Meaning that the child will not be adopted and will remain in foster care until at least age 18, and u p to age 21.
107 S.S.L. 409-e(3). See al so 18 NYCRR 428.8.
From July 1996 to December 1997, 607 complaints were filed with C-PLAN. Of those, 235 complaints (about 39%)
involved issues with service delivery. Public Advocate Mark Green, The Child Welfare Scorecard, at 1 (1998).
Seventy-eight percent of the respondents in a survey conducted by C-PLAN and The Door reported that their
caseworker refused to give them a copy of their service plan. Id.
As part of the foster care agencys efforts to work with the family, the agency must include the
parent, who is without legal representation, in a series of critically important case planning meetings.103
Federal and state law require that within 30 days of placement, the agency must hold a meeting
attended by the parent and agency staff to develop a case plan that will set out their respective
responsibilities and obligations.104 Thereafter, the agency is required to conduct regular meetings with
the parent known as Service Plan Reviews (SPRs) every six months for the duration of the childs
placement in foster care.105 These meetings are intended to examine the need for continued placement
in foster care, identify and update the permanency goal for the child (i.e. return to parent, independent
living,106 adoption), and determine the services that are necessary in order to achieve that goal. 107
The consequences of the current model of assigned counsel are catastrophic for families with
children in foster care. The presence of an attorney or other advocate at a Service Plan Review can
mean the difference between an inadequate and ineffective case plan, and one that engages the parent
and family and adequately addresses their needs.108 In two striking examples of this, C-PLAN staff
109 This is of particular importance in light of the fact that permanent neglect is grounds for termination of parental
rights. A permanently neglected child is defined as a child in foster care whose parent has failed for a period of
more than one year ... substantially and continuously or r epeatedly to maintain contact with or plan for the future of
the child, although physically and financially able to do so, n otwithstanding the agencys diligent effor ts to
encourage and strengthen the parental relationship ... S.S.L. 384-b(7)(a). A strong association between
frequency of parental visitin g and discharge of child has been fo und, as has a link between parental visiting and
amount of casework activity invested in a case. See Nisivoccia, D. (1993) Caseworkers values and attitudes in
relation to their activity with biological parents. The Jewish Social Work Forum, 29: 32. See also Beyer, M., Too
Little, Too Late: Designing Family Supp ort to Succeed, 22 N.Y.U. REV. L. & SOC. CHANGE 311, 336
(1996)(Visitation constitutes a crucial element of reunification. Arranging immediate and frequent visits for children,
beginning in the first weeks after removal, appears to be the best way to ensure successful reunification.).
110 18 NYCRR 430.12(d); S.S.L. 384-b(7)(f)(2).
111 18 NYCRR 430.12(d)(1)(i).
112 F.C.A. 1081, 1082.
worked on cases in which services were never put in place which could have strengthened and reunified
the family. In one case, a child spent a full year in foster care and no family counseling services were
provided to address the problems that led to the placement. In another case, a mother was not
included in SPRs for several years, and family counseling was never put in place. By the time C-
PLAN was contacted, mother and daughter were estranged and the childs permanency plan had been
changed to independent living.
Another critical component of strengthening the family and working toward reunification is the
facilitation of visits between children in foster care and their parents.109 For the duration of the foster
care placement, the agency responsible for the care of the children must provide the parent regular and
meaningful visitation.110 Without legal counsel during this critical time between disposition and extension
of placement, respondents have nobody to assist them in dealing with disruption of visitation or refusal
of the agency to provide other than the minimum amount of contact allowed under the law, which is one
hour two times a month.111 The best hope the parent has is to file a petition for visitation,112 at which
time counsel will be appointed. However, there is currently no system in place to ensure that the same
113 McGowan, B. & Walsh, E. Policy Challenge s for Child Welfare in the New Century. Child Welfare, 1, 22.
(January/February 2000); citing McGowan, Botsko & Pardee (1999). Lapsed placements in the New York City
Foster Care System. Unpublished draft paper. New York: Columbia University School of Social Work.
attorney will be appointed for that proceeding as represented the parent in the child protective
There are numerous other examples of how imperative it is for parents to have representation
post-disposition, but the most compelling is where a child experiences a lapsed placement. This
occurs where ACS fails to file an extension of placement petition before the 12 month court-ordered
placement expires. When this happens the child remains in foster care illegally. A small unpublished
study by New York Citys Court Appointed Special Advocates (CASA) found that 39% of 328
children involuntarily placed in foster care who were referred to CASA from 1993 to 1998
experienced at least one lapsed placement.113 These children were in care an average of three years
before placement lapsed, and, on average, they remained in care with no legal authority for yet another
Without access to representation, parents have no way of knowing their rights under these
circumstances, and often find themselves manipulated into signing voluntary placement agreements so
their children can remain in care legally. At C-PLAN, staff have found that when a placement has
lapsed for such a long time that the court will no longer allow ACS to file an extension of placement
petition, the ACS workers tell the parents they must either sign a voluntary placement instrument or
ACS will file a new neglect petition. Without legal counsel, parents find themselves voluntarily
placing their children in foster care without knowing what other options are available.
115 Family Court Advisory and Rules Committee, 2000 Annual Report: New ASFA-related Proposals (December
OCA has drafted legislation that would provide assigned counsel at post-hearing case
conferences upon the request of indigent respondents.115 The law would also be amended to provide
that, to the extent possible, the court should ap