NYSBA
President Henry M. Greenberg and Committee on Families and the Law
Chair Susan Lindenauer delivered the following testimony at a
June 19 public hearing of the New York State Office of Indigent Legal
Services on financial eligibility for appointment
of
assigned counsel in
family matters.
- The New
York Bar State Bar Association has a long history of commitment to (1)
improving access to justice for those with limited resources and (2) supporting
efforts to ensure that inability to afford counsel is not an impediment to
securing high quality, well-trained, constitutionally mandated counsel.
- The
Association has played and continues to play a major role through its advocacy
for increased assigned counsel rates and for state oversight of indigent
criminal defense.
- In
2018, for example, the Association adopted policy supporting state funding and
oversight of mandated parental representation.
- Like
indigent criminal defense, mandated parental representation is vitally
important, as constitutionally protected rights are at stake.
- Indeed,
the New York State Constitution guarantees the right to counsel to indigent
parents in matters involving fundamental liberty interests in the parent-child
relationship.
- Family
Court cases determine life-altering matters affecting the safety of children
and parents and the integrity and autonomy of families.
- The
focus of the hearings organized by the Office of Indigent Legal Services that
are being held throughout New York State is to obtain the views of a wide range
of institutions and individuals who play a role in the provision of counsel to
parents entitled to counsel, in most instances in Family Court, at public
expense.
- Our
Association believes that its views — which have been shaped and informed by
the work and experience of our members who serve on committees and task forces
— can and should be part of the discussion.
- My
comments address three aspects of the issues involved:
- the
need for appointment of counsel at the earliest stage of a child protective
proceeding or a potential child protective proceeding and thus for presumptive
eligibility in these cases;
- standards
for eligibility; and
- screening.
1. Early Appointment and
Presumptive Eligibility
- Timely
access to counsel for indigent parents is of critical importance.
- Unfortunately,
in some Family Courts there are far too many instances when parents appear
without counsel at hearings, in which the court makes life changing decisions,
including whether to separate a child from his or her family or to continue
such separation following an ex parte or non-judicial removal of a child by a
local child protective agency.
- Standards
issued by the Office of Indigent Legal Services — which in large measure mirror
the Standards developed by our Association’s Committee on Mandated
Representation — call for access to counsel for parents at the earliest
possible stage of a child protective proceeding.
- The
Association’s Standards for Mandatory Representation require that “counsel
shall be available when a person reasonably believes that a process will
commence that could result in a proceeding where counsel is mandated.”
(Standard B-3).
- Our
Standards (B-4) call for the establishment of systemic procedures “to ensure
that prompt mandated representation is available to all eligible persons,
particularly . . . where a child has been removed by a governmental agency from
the person’s home.”
- In
general, early access to counsel supports the goals of the Family Court Act (Section
261) by giving the litigants the opportunity to receive advice and counsel
before initiating or responding to litigation.
- Early
access to counsel also supports the due process rights of parents and families
and provides the court with more complete information upon which to make
critical decisions.
- It is
important that the timing of access to counsel be included in any reform of the
parental representation system.
- An
important legislative reform would be to require the appointment of counsel for
the parent at the time of an application by governmental agency for an imminent
risk hearing rather than waiting for the first appearance of the parent in
court.
- To
accomplish this objective on the proposed expedited timeline in child
protective cases, there needs to be an established and consistently applied
mechanism for determining the parent’s financial eligibility for assignment of
counsel at government expense.
- The
Association’s Memorandum in Support of State Funding for Mandated Parental
Representation—which was prepared by our Committee on Families and the Law and
which was adopted as Association policy last year — calls for presumptive
financial eligibility at the outset of these proceedings.
- This
approach is also endorsed in the Interim Report of the Chief Judge’s Commission
on Parental Legal Representation.
- Accordingly,
we strongly recommend the adoption of a statewide policy of presumptive
financial eligibility for parents at the outset of these cases.
2. Standards for Financial Eligibility
- Effective
and prompt provision of counsel to parents is crucial for one facing a
potential loss of parental rights.
- Counsel
should be assigned whenever a parent possesses inadequate income to hire an
attorney.
- We must
address gross differences in determination of financial eligibility between
jurisdictions and even within a given jurisdiction.
- Fair
and reasonable criteria for determining eligibility for assigned counsel that
allow for discretionary factors should be established.
- Whether
or not a parent’s income or other resources are enough to retain counsel
depends on a variety of factors, including jurisdictional differences such as
the cost of living and the going rate for counsel, as well as other income and
resource-related factors.
- While
statewide criteria should be developed, actual determinations need to reflect
the ability of the given individual, who has a constitutional right to counsel,
to retain competent, high-quality and knowledgeable counsel.
- The
determination of an individual’s eligibility for assigned counsel must always
be nuanced.
- There
should not be any bright lines as to disqualifying factors.
- For
example, ownership of a car may provide the necessary transportation to get to
a job in a community where there is no public transportation.
- Similarly,
ownership of a home in which the parent has little, or no equity should not be disqualifying.
- One
factor that needs careful consideration is how to treat the income of one
parent when there are two parents involved and they may or may not have
differing interests both with respect to their child or children and with
respect to any income or property they have.
- Consideration
should also be given to establishing a presumptive financial eligibility
standard which could serve as a baseline for financial eligibility
determination but not as a ceiling for determinations.
- Some
have suggested utilizing 250% of the federal poverty guidelines.
- Other
possibilities include the Self-Sufficiency Standard for New York State 2010
prepared for the New York State Self-Sufficiency Standard Steering Committee
(New York State Community Action Association) or the Interest on Lawyer Account
Fund Standards (N.Y. Comp. Codes R. & Regs. 22 Sec. 7000.14) which builds
in discretion and flexibility.
- All of
these are worthy of consideration.
3. Screening
- In the
context of indigent defense, our Association has supported the position that
screening for financial eligibility is properly the function of the judicial
system or of a third-party neutral and not of the individual attorney or
institutional provider assigned to provide representation.
- We see
no basis for adopting a different position regarding the assessment of
financial eligibility of parents in Family Court.
- Utilizing
the provider of counsel — whether it be institutional or individual, to
ascertain financial eligibility is unwise because it promotes both actual and
apparent conflict.
- Where
counsel is seeking to create a relationship of trust with the client, at a time
of high stress for the client, close questioning about financial matters may
create distrust.
- Furthermore,
depending on the nature of the financial relationship between the provider of
representation and its funding source, the screening determination may add to
the provider’s revenues or strain its resources creating other conflicts.
Conclusion
- In
closing, on behalf of the New York State Bar Association, I thank you for the
opportunity to address important issues regarding financial eligibility of
parents seeking assigned counsel representation in proceedings in the Family
Court.
- The
issues involved are complex and the rights of the parents are fundamental.
- I urge
this panel to take the steps necessary steps to address these issues.
###
About the New York State Bar Association
The New York State Bar
Association is the largest voluntary state bar association in the nation. Since
1876, NYSBA has helped shape the development of law, educated and informed the
legal profession and the public, and championed the rights of New Yorkers
through advocacy and guidance in our communities.
Contact: Dan Weiller
[email protected]
518-487-550
President Greenberg and Susan Lindenauer Testimony from New York State Bar Association on Vimeo.
