At the ELLA B Reception, Conference, Because Families Matter: Enhancing Parental Defense in New York, Albany, New York, November 13, 2015, Janet Ghattas, myself, Angela O. Burton, Director, Quality Enhancement, Parent Representation, N.Y.S. Office of Indigent Legal Services.
Forty-four year ago, in 1971, I brought an appeal in New York State's highest court because my client had been deprived of the care and custody of her three year old child due to the government's belief that she had neglected her child. She had a defense but she was unable to present it effectively. She was alone in court and unable to pay a lawyer. The proceeding lasted about two minutes and her child was gone into the limbo of foster care. The case was entitled, Matter of ELLA B. I was working at the Legal Aid Society of Westchester County in White Plains, New York. The case came to my desk. I appealed to the New York's intermediate appeals court which unanimously affirmed the Family Court's action in taking the child away from Ms. B. The Court of Appeals in Albany granted my motion for permission to appeal, and, a few months later, ruled that indigent parents have a constitutional right to the assistance of counsel assigned by the court in child neglect proceedings, noting, "the gross inherent imbalance of experience and expertise between the parties if the parents are not represented by counsel." Subsequently, the New State Legislature enacted a comprehensive system of court appointed attorneys for litigants in several kinds of proceedings in the State's Family Courts.
Imagine my amazement when, decades later, a couple of weeks ago, I received a call inviting me to attend and speak at a reception for the
ELLA B case. It was an exciting experience to be with almost two hundred lawyers attending a conference entitled
Because All Families Matter: Enhancing Parental Defense In New York. The conference was the first of its kind, organized by the New York State Office of Indigent Legal Services, which was initiated in 2010 to support "the efforts of counties and court appointed lawyers to deliver high quality, effective and cost-effective assistance of counsel to financially disadvantaged clients." The New York State Defenders Association and the Child Welfare Court Improvement Program also sponsored the conference.
Here is a link to my remarks at the
Ella B Reception during the conference.
https://www.ils.ny.gov/files/videos/Joanne's%20Video%20Remix%201.mp4
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Reflections on Because All Families Matter: Enhancing Parental Defense in New York
Angela Olivia Burton, Esq.
Director of Quality Enhancement, Parent Representation
New York State Office of Indigent Legal Services
12/11/2015
"Unprecedented." "Tremendously useful." "So energizing!" "This has been rejuvenating; I was thinking about retiring soon, but this experience has changed all that!" "Incredibly needed - I'm looking forward to next year!"
These are comments expressed by some attendees at the first ever statewide conference and training devoted to parental defense -- Because All Families Matter: Enhancing Parental Defense in New York. Over the course of two days, November 13 and 14, 2015, in Albany, New York, the excitement and energy were palpable as nearly 200 people came together to discuss critical issues and trends in this under-appreciated yet extremely important area of practice.
An initiative of the NYS Office of Indigent Legal Services (ILS), with the indispensable co-sponsorship of the New York State Defenders Association (NYSDA) and the NYS Child Welfare Court Improvement Project (CIP), the conference drew participants and presenters from 32 New York counties, representing each of the state's four Judicial Departments. As one participant noted, this was truly an unprecedented event in New York State.
The attendees were presented with an array of CLE options addressing cutting edge and provocative issues arising child protective cases. Each session was highly interactive, with information flowing freely between and among the presenters and the audience. In addition to opportunities for participants to network and forge new relationships, the conference yielded a wealth of practical advice, background material to enhance critical and creative thinking, and a treasure trove of written materials ready for use in everyday practice. Thanks to the expert logistical magic of NYSDA, the program, speaker's list, and conference materials are accessible here: http://nyparentdefense.com/.
Several highlights deserve special note. On Friday afternoon, the conference started with rousing motivational remarks from keynote speaker Prof. Marty Guggenheim, co-director (with Prof. Chris Gottlieb) of the Family Defense Clinic at the NYU School of Law, a founding member of the ABA’s Steering Committee for the Parental Representation Project (http://www.americanbar.org/groups/child_law/what_we_do/projects/parentrepresentation.html), and a leader in the national movement for excellent legal representation for parents. Among his many notable accomplishments, Marty argued the 1982 case of Santosky v. Kramer, in which the US Supreme Court rejected New York's "fair preponderance" standard in termination of parental rights cases, holding that due process requires at least clear and convincing evidence in those cases. The Santosky court famously noted that parents' fundamental liberty interest in raising their children "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State . . . parents retain a vital interest in preventing the irretrievable destruction of their family life." Marty's chapter, "The Importance of Family Defense," from the just-released ABA publication Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (co-edited with Prof. Vivek Sankaren), is posted on the conference website here:http://nyparentdefense.com/conference-materials/. Thanks to a discount provided by the ABA and the financial support of the CIP, 100 lucky conference attendees will shortly receive a free copy of the book! NYSDA will be in touch. For anyone interested, here's a link to information about the book and how to order it: http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=224751148. According to a recent post on the ABA Parent Attorney listserve by Prof. Sankaren, all proceeds from the book will be donated to the ABA's Parent Representation Project.
Friday evening conference attendees gathered for tasty treats, beverages and networking at the Ella B. reception, held in honor of attorney John T. Hand, who briefed and argued that groundbreaking case. In 1972, in In re Ella B., the NY Court of Appeals, in 1972, established that parents have a constitutional right to publicly funded assigned counsel in neglect and abuse cases (which, as discussed below, led to the enactment of Family Court §262 in 1975). At that time, John was an attorney with the Legal Aid Society of Westchester County in White Plains, where he and his colleagues brought numerous challenges against the government in cases involving such issues as housing, public benefits, and the right to counsel. John, now retired from practice in New York State, is an active member of the Massachusetts Bar, and a volunteer attorney preparing cases for victims of torture seeking political asylum. And rumor has it that yes, John is a distant relative of the famed Learned Hand! Thanks to the steady hand of Joanne Macri, ILS Regional Initiatives Director and impromptu videographer, you can see John's remarks here:https://www.ils.ny.gov/files/videos/Joanne's Video Remix 1.mp4, and his reflections about the Ella B. reception and his involvement in the case are posted on his blog, here: http://john-hand.blogspot.com/2015/11/because-families-matter-amazing-moment_15.html.
Other highlights: acclaimed neuroscientist Dr. Carl Hart on how scientists have contributed to dangerous misconceptions about the nature of drug use and addiction, and how these views contribute to injustice in child protective cases, and a joint presentation by Bronx Family Court Judge Gayle Roberts and Seton Hall Law School Professor Solangel Maldonado on the research into implicit bias, its effects on judicial-decision making, and practical advice on how we can counteract its negative effects.
In addition to the too-numerous-to-mention-here-but-incredible New York family defense practitioners who generously shared their expertise (http://nyparentdefense.com/speakers/), we were fortunate to have participation on panels by Betsy Ruslander, Director, 3rd Dep't Office of the Attorney for the Child (The Parent's Attorney and the Attorney for the Child: Defining Roles, Resolving Misunderstandings); Aimee Neri, Liaison, NYS Child Welfare Court Improvement Project and Rachel Blustain, Executive Director, Rise Magazine (Strengthening Communication with Clients in a Client-Centered Practice); and Dylan Nicole de Kervor, Attorney, Federal Coordination and Compliance Section (FCS), U.S. Department of Justice, Civil Rights Division (State Intrusion in the Family in the Age of Ferguson: Child Welfare as a Civil Rights Issue).
This extraordinary gathering marked several important historical anniversaries in the evolution of the right to assigned counsel for parents in New York. As noted above, forty years ago, in 1975, the constitutional right to publicly-funded counsel for adults in child protective cases was codified in the Family Court Act, following on the heels of the NY Court of Appeals decision three years earlier in In re Ella B., 30 NY2d 352 (1972). Echoing Mr. John Hand's brilliant argument, the Court emphasized the fundamental, constitutionally protected liberty interest of parents in raising their children, and noted the “gross inherent imbalance of experience and expertise” between the state and unrepresented parents. The Court held that it was “fundamentally unfair, and a denial of due process of law for the state to seek removal of a child from an indigent parent without according that parent the right to the assistance of court-appointed and compensated counsel.” Thus began New York's system of assigned counsel in family court cases involving "infringements of fundamental interests and rights, including the loss of a child's society and the possibility of criminal charges." FCA §261. Notably, as he mentioned in his speech at the reception,, Attorney Hand also successfully litigated People ex rel. Amendola v. Jackson, 74 Misc.2d 797 (1973), in which the constitutional right to assigned counsel for indigent parents charged with willful violation of a child support order in Family Court was announced (and codified in FCA §262 two years later along with the right to counsel in neglect and abuse proceedings).
The conference marked another significant event: 25 years ago, in 1990, a consolidated bill package was enacted by the NYS legislature addressing several child welfare related issues (https://www.ncjrs.gov/pdffiles1/Digitization/129495NCJRS.pdf). Included in this legislation were reforms to the Family Court Act arising out of a study funded by the National Center on Child Abuse and Neglect, Children's Bureau, Administration for Children, Youth and Families, U.S. Dep't of Health and Human Services. The study, entitled Child Protection and the Family Court: A Study of Processes, Procedures and Outcomes under Article Ten of the New York Family Court Act, was conducted under the auspices of the NYS Senate Standing Committee on Child Care, chaired by Senator Mary Goodhue (the "Goodhue Committee"). This remarkable document (accessible here: https://www.ncjrs.gov/pdffiles1/Digitization/126665NCJRS.pdf) analyzes data collected from 500 court case records, across 14 counties, of child protective proceedings initiated in 1985. Information about each case was collected before, during and after family court intervention (until the fall of 1988). In its report, issued in 1989, the Goodhue Committee identified significant flaws in the system for parental representation.
The Committee observed that "a number of highly significant events occur prior to the initial appearance and prior to the initial appointment of representation for the respondent. All of these events occur on an ex partebasis and many of the events are of a magnitude to shake the family structure of the respondent." Notably, the Committee found that FCA §1027 hearings, "intended to be preliminary procedures to determine whether imminent risk to a child's life or health exist so as to warrant court-ordered removal of the child from the home" were often "a vehicle to validate earlier pre-petition removals of children" without court order under FCA §1024. The Committee made other significant findings, including that: respondents were often not present at these critical hearings (akin to arraignment in criminal court); when present, respondents often were not represented by counsel; many respondents were not advised by the judge of their right to counsel or their FCA§1028 right to apply for return of the child; that the rate of filing for FCA §1028 hearings was "extremely low in the State as a whole;" and that "counsel was not appointed in more than 30 percent of the cases (even after accounting for the use of private attorneys)." "All these matters," wrote the Committee, "raise serious due process concerns."
Concluding that "[t]hese findings suggest that competent legal representation be available [to respondents] at the early and critical stages of these proceedings," the Goodhue Committee recommended that a notice be included in the child protective petition or notice of pre-petition emergency removal advising respondents of their right to assigned counsel, methods of gaining access to counsel, and of the FCA §1028 right to apply for return of the child. The Committee also recommended that "legislation be enacted to establish timeframes for the appointment of counsel, when requested by respondents, as soon as practicable after the filing of the petition." The notice provisions were enacted in the 1990 reform package. However, no specific timeframes for appointment of counsel to respondents were established; the statute only required that, when the person first comes to court, the judge advise the person before proceeding of the right to assigned counsel. FCA §262(a). Notably, as part of the 1990 reforms, specific timeframes for appointment of counsel for the child was enacted, requiring the judge to appoint counsel for the child at the earliest of: (i) the court receiving notice of the emergency removal of a child; (ii) an application for an ex parte order of removal before the filing of a petition; or (iii) the filing of a petition alleging abuse or neglect. FCA §1016.
Finally, 2015 marks the 15-year anniversary of the filing, in 2000 of the lawsuit challenging the inadequate assigned counsel rates, New York County Lawyers' Association v. The State of New York and the City of New York https://www.nycla.org/siteFiles/Publications/18bcomplaint.pdf). The complaint alleged that the then existing assigned counsel rates ($40.00 per hour for in-court and $25.00 per hour for out of court work) resulted in an unconstitutional denial of meaningful and effective legal representation for children and indigent adults in criminal and family court cases as required by the constitutions of New York State and the United States. In 2003 Supreme Court Judge Lucindo Suarez agreed, finding that "[t]he State of New York continues to ignore its constitutional obligation to the poor by failing to increase the assigned counsel rates, resulting, "in many cases, in denial of counsel, delay in the appointment of counsel, and less than meaningful and effective legal representation." (http://www.sado.org/fees/newyorkfeecase.pdf). Judge Suarez noted the "severe and irreparable harm" caused by delays in appointment of counsel in Family Court cases, including: no representation during critical periods where due process rights to liberty and care for children were at stake; children being removed from parents’ custody at ex parte hearings where they were unrepresented; and parents not receiving timely FCA §1028 hearings. Observing the family court judge's role of insuring "that the state agency is not over-reaching," the court found that parents were losing custody of their children for long periods of time "with inadequate judicial assessment of whether the removal is warranted. . . As a result, parents are “deprived of an opportunity to have a relationship with their child, and the child is deprived of an ability to have a relationship with their parent.”
Because All Families Matter: Enhancing Parental Defense in New York is another historical marker in the evolution of the parental right to counsel in New York, and has set the stage for a new direction in family defense in New York State. Timely access by parents to well-resourced, high quality legal representation is crucial to achieving procedural and social justice for families. We at ILS look forward to continued collaboration with partners such as NYSDA, CIP, the community of New York family defenders, and others seeking to improve the quality of legal representation for all families involved with the child welfare system in New York.
Happy holidays, and take good care,
aob
Angela Olivia Burton, Esq.
Director of Quality Enhancement, Parent Representation
New York State Office of Indigent Legal Services
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MATTER OF ELLA B.
In the Matter of Ella B., a Child Alleged to be Neglected. Louis P. Kurtis, as Commissioner of Social Services of Westchester County, Respondent; Jeri B., Appellant.
Court of Appeals of the State of New York.
Argued May 5, 1972.
Decided June 8, 1972.
John T. Hand for appellant.
John J. S. Mead, County Attorney (Justin F. Collins of counsel), for respondent.
Louis J. Lefkowitz, Attorney-General (Maria L. Marcus and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law.
Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur.
Chief Judge FULD
Whether the Family Court is required to advise an indigent parent, charged with child neglect, that he is entitled to be represented by assigned counsel is the question presented by this appeal.
1
In June of 1969, the Westchester County Commissioner of Social Services, the petitioner-respondent herein, filed a charge of child neglect against the respondent-appellant. The petitioner asserts that the appellant left her three-year-old daughter home alone between one and four o'clock in the morning of June 21 and that, during her absence, the little girl was allegedly kidnapped and raped by a friend of the appellant. The child was represented by a law guardian. When the matter came before the Family Court, the judge presiding, after reading the petition to the appellant, spoke to her as follows:
"You may be represented by an attorney in this proceeding, in which case you must obtain one yourself, and pay for him out of your own funds, or you may waive an attorney and either admit or deny the facts in the petition if you want. Do you want an attorney?
"MRS. B.: No.
"THE COURT: Do you admit the facts in the petition?
"MRS. B.: Yes, I do."
Thereupon, without further ado, the judge stated that he was "going to find that [the appellant's daughter] is a neglected child and will continue the child in custody of the Child Protective
Services". An order was entered adjudicating her a neglected child and directing that she be placed in the petitioner's custody.
2
Very shortly after the adjudication of neglect, which was made in July, 1969, the appellant obtained the assistance of the Legal Aid Society. A notice of appeal was filed and, in September, a Legal Aid attorney instituted a proceeding to terminate the child's placement with the petitioner. In February, 1970, while the proceeding was pending, the youngster was informally returned to her mother's home. At the termination hearing some months later — in the fall of 1970 — the appellant's attorney, after some preliminary cross-examination of the one witness called, declined to continue the defense because of a "misapprehension" of the nature of the proceeding and moved to strike "all" proceedings previously held and to have a hearing de novo. The judge denied the motion, adhered to his original determination and continued the child in the petitioner's custody, noting that she could be taken from the mother's physical custody upon the petitioner's application.
The Appellate Division unanimously affirmed the original order of July, 1969, and the appeal is before us as of right on constitutional grounds (CPLR 5601, subd. [b], par. 1).
The determination must be reversed. In our view, an indigent parent, faced with the loss of a child's society, as well as the possibility of criminal charges (Family Ct. Act, §§ 1014, 1052, 1055; Penal Law, § 260.10), is entitled to the assistance of counsel. A parent's concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right (see, e.g.,
Stanley v. State of Illinois,
405 U.S. 645;
Matter of Spence-Chapin Adoption Serv. v. Polk,
29 N.Y.2d 196, 203), 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.
3 To deny legal assistance under such circumstances would — as the courts of other jurisdictions have already held (see, e.g.,
Cleaver v. Wilcox, 40 U. S. Law Week 2658, decided March 22, 1972;
State of Jamison, 251 Or. 114, 118; see, also,
Boddie v. Connecticut,
401 U.S. 371; Note, Child Neglect: Due Process for the Parent, 70 Col. L. Rev. 465; but cf.
In re Robinson,
8 Cal.App.3d 783, cert. den.
sub nom.Kaufman v. Carter, 402 U.S. 954, 964) — constitute a violation of his due process rights and, in light of the express statutory provision for legal representation for those who can afford it, a denial of equal protection of the laws as well. As the Federal District Court wrote in the very similar
Cleaver case (40 U. S. Law Week, at p. 2659), "whether the proceeding be labelled `civil' or `criminal,' it is fundamentally unfair, and a denial of due process of law for the state to seek removal of the child from an indigent parent without according that parent the right to the assistance of court-appointed and compensated counsel. * * * Since the state is the adversary * * * there is a gross inherent imbalance of experience and expertise between the parties if the parents are not represented by counsel. The parent's interest in the liberty of the child, in his care and in his control, has long been recognized as a fundamental interest. * * * Such an interest may not be curtailed by the state without a meaningful opportunity to be heard, which in these circumstances includes the assistance of counsel."
Once the conclusion is reached that one has a right to be represented by assigned counsel — and, as noted, the petitioner does not dispute that the appellant did have such a right — it follows that one is entitled to be so advised. If the rule were otherwise, if the party before the court was not apprised of hisright to assigned counsel, there could be no assurance either that he knew he had such a right or that he had waived it. Certainly, the appellant in the present case could not have realized that she would have been provided with a lawyer if she could not afford to retain one. In point of fact, the judge actually told her that, if she desired an attorney, "you must obtain one yourself, and pay for him out of your own funds". This statement completely excluded the availability of assigned counsel or other free legal assistance. Consequently, the appellant's negative answer to the question, "[d]o you want an attorney?" could not possibly be deemed an intelligent or understanding waiver of her right to counsel. (See, e.g.,
Matter of Lawrence S.,
29 N.Y.2d 206;
People v. Witenski,
15 N.Y.2d 392.)
It is true that the appellant was represented by an attorney in the later proceeding to terminate the child's placement. As noted above, the trial judge there denied the motion of her counsel for a de novo hearing, refused to terminate the child's custody and continued placement "with the Commissioner of Social Services." Because of the paucity of evidence at such hearing, however, it is manifest that the trial judge's decision was influenced more by his earlier determination of neglect — based, as indicated, solely on the appellant's uncounselled plea "admit[ting] the facts in the petition" — than by the child's apparent need for continued supervision. However, we do not believe it necessary or desirable to reverse or vacate the initial order (of July, 1969). We meet the exigencies of the case if, without impairing the effectiveness of that order, we remit the proceeding to the Family Court for a rehearing, both adjudicatory and dispositional (Family Ct. Act, §§ 742, 743), at which the appellant will, of course, be represented by counsel.
The order appealed from should, therefore, be modified, without costs, and the matter remitted for further proceedings in accordance with this opinion and, as so modified, affirmed.
Order modified, without costs, and matter remitted to Family Court, Westchester County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.
Footnotes
1. The Family Court Act (§ 1043, subd. [a]; prior to May 1, 1970, § 343, subd. [a]) makes provision for legal representation but is silent with respect to the right of indigent parents to assigned counsel:
"The court shall advise the parent or other person legally responsible for the child's care of a right to be represented by counsel of his own choosing and to have an adjournment to send for counsel and consult with him."
2. Not a word had been said to the appellant that she might lose the custody of the child. Indeed, as the colloquy between the judge and her made clear, she believed that she would be permitted to take the child home and, after the judge indicated that the child was to be taken from her, she made a feeble, and unsuccessful, attempt to set forth circumstances which might have provided a basis for a meritorious defense in the hands of an attorney.
3. The petitioner acknowledges that an indigent parent is entitled to be represented by assigned counsel in a child neglect proceeding and that, had the appellant stated that she could not afford an attorney, the court would have been "under a duty to advise her of the availability of counsel." But he urges that, since the proceeding is "civil" in nature, the court was not required, on its own initiative, to inform the appellant of her right to have counsel assigned to her.
