Justice Denied: The Crisis in Legal Representation of Birth Parents in Child Protective Proceedings

8/9/2019 Justice Denied: The Crisis in Legal Representation of Birth Parents in Child Protective Proceedings

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JUSTICE DENIEDTHE CRISIS IN LEGAL REPRESENTATIONOF

BIRTH PARENTS IN CHILD PROTECTIVE PROCEEDINGS

A Report by

Mark Green

Public Advocate

for the City of New York

and

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

May 2000


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Acknowledgments

SPECIAL THANKS TO:

Howard Goodman

Dalia HusbandJason Kanter

Jennifer Muhle

Amy Randall

Felicia Summers

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

and

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-

PLAN PROJECT:

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


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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


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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

APPENDICES

A. Regulations Governing Assigned Counsel

1. First Department Assigned Counsel Panel Application

2. Second Department Assigned Counsel Panel Application


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B. Office of the Criminal Justice Coordinator, Assigned Counsel Plan Attorney Payments,

(1998)

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

1999)

F. Sample Client Bill of Rights

G. C-PLAN Survey

H. About C-PLAN


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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

i

EXECUTIVE SUMMARY

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


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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).

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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


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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.

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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.

MAJOR FINDINGS

## 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


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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).

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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

assignment.10

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


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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.

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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.


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12McGowan, Botsko & Pardee (1999). Lapsed placements in the New York City Foster Care System. Unpublisheddraft paper. New York: Columbia University School of Social Work.

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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.


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RECOMMENDATIONS

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.


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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.

CONCLUSION

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.


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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).

3

[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


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F.C.A. 1031.

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.

F.C.A. 1028.

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.

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

abuse.20

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


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F.C.A. 1044; See also F.C.A. 1012.

F.C.A. 1047.

F.C.A. 1057.

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

laws.

F.C.A. 1055(b). See also S.S.L. 392.

5

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


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S.S.L. 384-b.

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.

6

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


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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).

Id.

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).

7

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.


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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

679.

8

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


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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

(docket) number.

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.

9

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


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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.

10

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

costs.

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


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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

at 28.

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.

11

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


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National Legal Aid and Defenders Association, Standards for the Administration of Assigned Counsel System,

Standard 4.7.2.

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.

12

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


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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.

13

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.


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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

10, 2000).

Id.

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).

14

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


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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.

15

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


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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

(1996).

Katharine Law, supra note 72.

Id.

16

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.


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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).

17

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

panel members.

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


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80 Id.

81 Harriet Weinberger, supra note 78.

82 Id.

83 Interview with Judge Joseph M. Lauria, Administrative Judge of the New York City Family Court (December 20,

1999).

84 Id. This was also reported by Harriet Weinberger, supra note 78.

85 Id.

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).

18

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

certification.87


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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).

19

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


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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.

20

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


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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.

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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

ends.

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


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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).

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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.


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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.

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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


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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.

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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


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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.

114 Id.

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attorney will be appointed for that proceeding as represented the parent in the child protective

proceeding.

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

year.114

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.


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115 Family Court Advisory and Rules Committee, 2000 Annual Report: New ASFA-related Proposals (December

1999).

116 Id.

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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

Justice Denied: The Crisis in Legal Representation of Birth Parents in Child Protective Proceedings

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