By:  Judith Waksberg, The Legal Aid Society, Juvenile Rights Practice

 

I.                   representing children on appeal  -- Determining the child’s position

A.                 Obligation to consult with and counsel Client

1.                  NYSBA Standards of Practice for Attorneys Representing Children in New York Child Protective, Foster Care, and Termination of Parental Rights Proceedings (June 2007) [hereinafter “NYSBA Standards of Practice”], C-1:  “Establishing and maintaining a relationship with a child is the foundation of representation.  Therefore, irrespective of the child’s age, the attorney should meet with the child prior to court hearings and when apprised of emergencies or significant events impacting on the child . . . .”

2.                  Rules of the Chief Judge, §7.2 (d) (1) requires an attorney representing a child to “consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and [to] have a thorough knowledge of the child’s circumstances.” 

3.                  Responsibilities of attorney for child to consult with and counsel client applies to appellate attorneys as well as trial attorneys.  Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092 (3d Dept. 2009) (appellate attorney for child took position on appeal of paternity petition based on his own review of the record, without meeting with child; appellant counsel relieved and new counsel assigned to represent child on appeal).  See NYSBA Standards of Practice, F-1 through F-5:  Child’s attorney shall discuss appeal with child and continue representation through the appeal.

B.                 Role of Attorney for the Child

1.                  Representing the Child’s Position

a.                    N.Y. Rules of Professional Conduct [hereinafter “NYRPC”], Rule 1.14(a):  “When a client’s capacity to make adequately considered decisions in connect with a representation is diminished . . . because of minority . . . the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.” 

 

b.                  ABA Standards of Practice, Part I, B-4:  “The child’s attorney should represent the child’s expressed preferences and follow the child’s direction throughout the course of litigation.”

c.                   Rules of the Chief Judge, §7.2(c):  An attorney for a child in a delinquency or PINS proceeding “must zealously defend the child.”  §7.2(d):  In any other proceeding the attorney for the child must “zealously advocate the child’s position.”

2.                  Counseling the Client

a.                   NYSBA Standards of Practice, A-2:  “The lawyer has a duty to explain to the child, in a developmentally appropriate manner, all information that will help the child to understand the proceedings, make decisions, and otherwise provide the lawyer with meaningful input and guidance.   Because a child may be more susceptible to intimidation and manipulation than an adult client, the lawyer should ensure that the child’s decisions reflect his/her actual position.  The lawyer has a duty not to overbear the will of the child.”

b.                  Rules of the Chief Judge, §7.2(d)(2):  “The attorney [for the child] should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.”

c.                   Counseling client on appeal involves explaining appellate process and limits on relief available in appellate court. 

3.                  Necessity for Protective Action

a.                   If, even after counseling client, attorney believes that advocating for child’s stated position would put child at “risk of substantial physical . . . or other harm . . . the lawyer may take reasonably necessary protective action . . . .”  NYRPC, Rule 1.14(a).

b.                  Rules of the Chief Judge, §7.2(d)(3): “the attorney for the child . . . would be justified in advocating a position that is contrary to the child’s wishes” when the attorney “is convinced either that the child lacks the capacity for knowing voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child . . . .”

 

c.                   NYSBA Standards of Practice, A-3, provide that an attorney may substitute judgment for a child when adopting the child’s expressed preference would “expose the child to imminent danger of grave physical harm” or when the attorney “is convinced that the child is not competent due to an inability to understand the factual issues involved in the case or clearly and unequivocally lacks the capacity to perceive and comprehend the consequences of his or her decisions. 

d.                  F.C.A §241 and §7.2(d)(3) of the Rules of  the Chief Judge both require that if the attorney for the child is substituting judgment, the attorney must inform the court of the child’s expressed wishes if the child so desires.  NYSBA Standards of Practice, A-4, require that when the attorney is substituting judgment for the child, the attorney must inform the court that that is the basis for the attorney’s advocacy and must also inform the court of the child’s articulated position unless the child has instructed the attorney not to do so. 

II.                Providing Updated Information to Appellate Court

A.                 Legal Basis for Providing New Information on Appeal

1.                  The Court of Appeals held in Matter of Michael B., 80 N.Y.2d 299, 590 N.Y.S.2d 60, 604 N.E.2d 122 (N.Y. 1992) that  it

“would therefore take notice of the new facts and allegations to the extent they indicate that the record before us is no longer sufficient  . . . and remit the matter to Family Court for a new hearing and determination of those issues.”  80 N.Y.2d at 318 (citation omitted).

2.                  Relief requested is NOT for appellate court to make new evidentiary findings, but only for a remand to lower court because record no longer reflects the current situation and a new hearing is therefore required.

B.                 New facts and allegations should not be controversial or contested, i.e., they should not give rise to an evidentiary dispute or a dispute as to the correct conclusions to be drawn from those facts.   

1.                  For example, it may be uncontested that a parent has completed a service program; however, the conclusion from that fact – whether the parent has successfully addressed the underlying problem – may be in dispute.

 

2.                  Exception to rule that Court may not consider matters outside the record made for “reliable documents, the existence and accuracy of which are not in dispute [citations omitted].”  Matter of Chloe Q., (Slip Op. 505675, 3d Dept., 12/17/09).  (father’s appeal from permanency hearing order extending placement of children with maternal grandparents deemed moot after appellate court informed that father subsequently consented to an order granting custody to the grandparents).

C.                 Confidential Information

1.                  Information that involves confidences or secrets may not be revealed unless the client has consented to such disclosure.  NYSBA Standards of Practice, A-5 provides that information protected by the attorney-client privilege may only be disclosed by the child’s lawyer if the child consents to the disclosure, or if the attorney is required by law to disclose the information, or is substituting judgment for the client or disclosure is necessary to protect the child from imminent risk of physical abuse or death.

2.                  NYRPC, Rule 1.6 (a) provides that “A lawyer shall not knowingly reveal confidential information . . . .” but provides for the following exceptions:

a.                   When the client gives informed consent to the disclosure

b.                  When “the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community”

c.                   When necessary to prevent death or substantial bodily harm, the commission of a crime, and other exceptions listed in 1.6 (b).

3.                  Although the attorney may not disclose secrets or confidences without the client’s consent, neither may the attorney, in response to questioning during argument, “make a false statement of fact or law to a tribunal . . . .”  NYRPC, Rule 3.3(a)(1). 

 

III.             When Child’s Position Has Not Changed on Appeal

A.                 When Circumstances Have Not Changed

1.                  Given the length of proceedings in Family Court, it may be appropriate to advise appellate court that circumstances have remained the same; i.e., in an appeal which would result in a child’s return home when the appeal is being heard long after the order appealed from, it makes sense to advise the court that circumstances have not substantially changed.

2.                  In an appeal of a termination of parental rights, particularly when issues on appeal arise from the dispositional hearing, court should be advised as to whether children remain in same pre-adoptive home and whether they continue to desire to be adopted.

B.                 When Circumstances Have Changed

1.                  There is no obligation to inform court of changed circumstances when such circumstances are adverse to the client’s position.

2.                  When circumstances have changed such that the change supports your client’s position and the change indicates that the record is no longer sufficient, then the court should be advised of the change in circumstances.

3.                  Change of circumstances may be due to child’s age; i.e., an almost fourteen-year-old child who has indicated to his attorney that he will not consent to adoption.  (This may not be a change in the child’s position; however it can constitute changed circumstances as the significance of a fourteen-year-old stating that she will not consent to be adopted is different from that of a ten-year-old who says that she does not want to be adopted.)

IV.              when child’s position has changed on appeal

A.                 Children’s Recantation of Allegations of Abuse or Neglect

A lawyer may not use evidence that the lawyer knows to be false.  NYRPC Rule 3.3(a)(3).  The commentary on this rule states that the prohibition applies “only if the lawyer knows that the evidence is false.  A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact.”  If a child is recanting allegations at the time of the appeal, the attorney should be counseling the client about the issues involved in changing position on appeal and as to any and all other avenues of obtaining the client’s goal in the litigation.

B.                 Other Changes in Child’s Position

Issues of confidentiality must be addressed with client in determining whether to reveal the basis for a client’s changed position on appeal.

C.                 When a Child’s Position Has Changed due to a Change in Circumstances

1.                  Changes in Circumstances Involving Undisputed Facts

a.                   These may be brought to the appellate court’s attention on appeal; usually this is done in an “Update” section of the brief.

b.                  Examples of undisputed facts:

i.                    Death of foster parent
ii.                   Removal of child from previous foster parent
iii.                 Subsequent criminal conviction or family court finding of abuse and/or neglect of respondent.
iv.                 Child of fourteen or almost fourteen years of age who refuses to consent to adoption.

2.                  Changes in Circumstances Involving Contested Issues

a.                   Changes in Circumstances involving contested issues should not be referred to on appeal.

b.                  In some cases, it may be appropriate to move to expand the record on appeal.  This would be in cases where a subsequent finding by a court is relevant to the issues on appeal; i.e., a parent who is seeking a reversal of a TPR as to one child on the basis that she was rehabilitated, had a finding of neglect or abuse entered against her as to another child.  See Matter of Chloe Q., (Slip Op. 505675, 3d Dept., 12/17/09).

 

 

 

V.                 Strategic Considerations

A.                 Change of position on appeal

A client should be counseled on whether a change in position on appeal will be an effective means of obtaining the client’s goals. 

B.                 Change of Circumstances on appeal

1.                  Informing the Appellate Division of a change of circumstances on appeal can only be used in a very limited fashion – usually when there is no option of reopening case in Family Court.

2.                  As the Appellate Division cannot make evidentiary findings, changes of circumstances involving disputed facts or disputed conclusions from new facts should usually be brought back to the family court.

C.                 In Article Ten Cases, the Family Court Act provides for the reopening of hearings and vacatur or modification of orders due to changed circumstances. 

1.                  F.C.A. §1061 (“For good cause shown and after due notice, the court . . . may stay execution of, arrest, set aside, modify or vacate any order issued in the course of a proceeding under this article.”) 

2.                  Successfully moving to reopen or vacate in Family Court will result in the appeal becoming academic; the appellant should then move to withdraw, or another party can move to dismiss the appeal.

3.                  Some Family Court judges are reluctant to re-open proceedings when an appeal is pending.  In that case, a motion to re-open in Family Court, and then an appeal from the order denying the motion may be appropriate.

D.                The Appellate Court will step in when there is no legal avenue to re-open in Family Court.

1.                  Because there is no statutory means of re-opening termination of parental rights proceedings due to a change of circumstances, appellate courts have taken changed circumstances into consideration on appeals from such cases. 

 

2.                  There is case law providing for a remand to the family court for a new dispositional proceeding when there is a substantial change of circumstances on appeal.  See e.g., Matter of Charles Michael J., 58 A.D.3d 401 (1st Dept. 2009) (because termination of parental rights would serve no useful purpose for child who is over the age of fourteen and opposed to adoption, matter remanded for a further hearing to determine whether mother is currently able to meet needs of this child); Matter of Samuel Fabien G., 52 A.D.3d 713 (2nd Dept. 2008) (based upon new facts that no adoptive resource available and that child expressed desire to return to parent, matter remitted for a new dispositional hearing); see also Matter of Jelissa Ninette O., 233 A.D.2d 874 (4th Dept. 1996) (Family Court should have suspended judgment, but since more than a year has passed since the hearing, matter remitted for a new hearing).

 

 

Return to Table of Contents

 

 

Return to Program Announcement

 

Last updated January 12, 2010

 

Links to other sites, or links to this site from any other sites, do not imply any endorsement of, or relationship with, such other sites.