JUSTICE DENIED

THE CRISIS IN LEGAL REPRESENTATION OF

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 O’Sullivan, C-PLAN Special Counsel
Laurel W. Eisner, General Counsel, Office of the Public Advocate

May 2000
 Acknowledgments

SPECIAL THANKS TO:

Howard Goodman
Dalia Husband
Jason 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 Children’s 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
 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 City’s Child Welfare System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. The Statutory Scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2. Who Represents the Parties in Abuse and Neglect Proceedings . . . . . . . . . . . . . . 6

a. Legal Counsel for the Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

b. Legal Counsel for the City (ACS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

c. Legal Counsel for the Parents (Respondents) . . . . . . . . . . . . . . . . . . . . . . 8

II - THE CRISIS IN FAMILY COURT

A. The Grossly Insufficient Number of Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1. The First Department (Manhattan and the Bronx) . . . . . . . . . . . . . . . . . . . . . . . . 15

2. The Second Department (Brooklyn, Queens and Staten Island) . . . . . . . . . . . . . 17

B. Timing of the Assignment of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. Duration of the Assignment of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

D. Inadequate Fees Lead to Inadequate Representation . . . . . . . . . . . . . . . . . . . . . . . . . . 26

 1. Difficulty Recruiting and Retaining Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

2. Disincentive to Perform Out-of-Court Work. . . . . . . . . . . . . . . . . . . . . . . . . . . 28

E. Lack of Institutionalized Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

F. The Lack of Specialization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

G. Insufficient Accountability and Judicial Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

H. The Impact on Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

III - RECOMMENDATIONS

A. Short Term Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

1. Increase Reimbursement Rates to $75 Per Hour . . . . . . . . . . . . . . . . . . . . . . . . 34

2. Expand Pilot Projects Providing Interdisciplinary Representation to Respondents 36

3. Establish Specialized Panels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

4. Establish Continuity of Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

5. Increase Oversight and Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

6. Replicate and Expand the Successful Model Courts . . . . . . . . . . . . . . . . . . . . . . 42

B. Long-Term Recommendation - An Organization for Parent Representation . . . . . . . . . . 44

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

APPENDICES

A. Regulations Governing Assigned Counsel

1. First Department Assigned Counsel Panel Application

2. Second Department Assigned Counsel Panel Application

B. Office of the Criminal Justice Coordinator, “Assigned Counsel Plan Attorney Payments,”
(1998)

C. First Department Appellate Division’s Report to the New York State Unified Court System,
“Representation of Indigent Defendants,” (1998)

D. Second Department Appellate Division’s 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”
 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

1 The City of New York, Office of the Comptroller, Bureau of Management Audit, Audit of the Administration for
Children’s Services Efforts to Move Children Out of Foster Care , (November 30, 1999). Recognizing that New York
City children spend too much time in foster care, the Administration for Children’s Services (ACS) developed the
STAR (Safe and Timely Adoptions and Reunifications) Program to create flexible funding for foster care agencies to
support a continuum of services for families. ACS, The STAR Program: Program Description (February 2000).

2Telephone interview with Mike Kharfen, Director of Public Affairs for the Administration of Children and Families,
Health and Human Services (April 11, 2000).

3Asof June 30, 1999, there were 36,648 children in care, as reported by the Administration for Children’s Services,
Reform Plan Indicators Status Report 2 (March 2000) at 98.

4This is based on an average cost of $15,000 per year to keep a child in a foster care boarding home (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
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

children in foster care are in boarding homes.

5Foster care costs are shared by the federal, state and city governments, with approximately one-third paid by the
City. Assigned counsel (18-B) costs for the representation of adults are paid entirely by the City.

6 According to New York City’s Administration for Children’s 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.

7In 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 Transitions to Adutlhood: Outcomes 12 to 18 Months

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),
Discharged to Homelessness, Foster Care Youth United; Somini Sengupta, “Youths Leaving Foster Care System
With Few Skills or Resources,” New York Times (March 28, 2000).

ii
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 Advocate’s Office
which assists families who have problems dealing with the City’s 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

9Thisincludes 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.

iii
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 and
search 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 State’s 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 lawyer’s effective representation of his
or her client. Legal representation without time to meet with the client and gather and review evidence
often dooms the client’s case. The data bears this out. In 88% of the child protective proceedings, the

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).

iv
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 Children’s 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 parent’s 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.

P 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 parent’s 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.

11In 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.

v
 In the interim, key decisions are being made by the City and the foster care agency about the
child’s 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 care
placement 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 Court pro se, 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 their

assigned 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.

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

vi
 RECOMMENDATIONS

A. Short Term Recommendations

# 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.

vii
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.

viii
 Introduction

The first Juvenile Court in the United States, the precursor of today’s Family Court, was created

100 years ago in Chicago by Jane Addams.1 It was a major social reform, based on Addams’ radical

approach to child welfare. She sought to depart from the “child-saving” societies of that era which

“strove to take children from ‘unfit’ or destitute homes” where children were allegedly “morally

corrupted,”2 and to replace them with a “caring community” that would assess a family’s needs, identify

available help, and assume the role of ally and partner.3 Addams’ idea was a court focused on

rehabilitation, guidance and compassion,4 with proceedings that were “personal and creative” rather than

“legalistic and punitive.”5

Over the course of the last century, the system envisioned by Addams has not lived up to its

promise. In New York and elsewhere, the Family Court has become the step-child of the legal system:

courthouses severely under funded and overcrowded, judges and lawyers overworked and

overwhelmed by excessive caseloads, massive backlogs and insufficient resources. The court that was

designed to serve children and families in a non-adversarial forum now greatly under-serves them.

Rather than guiding and rehabilitating families, the system often divides and undermines them. Despite

courageous and innovative reforms initiated in recent years by Chief Judge Judith Kaye of the Court of

Appeals, as well as other administrative judges and court officials, the Family Court remains deeply

troubled.

1
Ayers, W. Jane Addams: History and Background, A Kind and Just Parent (1997).

Id at 25.

Id at 26.

Id at 24, 26.

Id at 26.
1
 This report focuses on one critical aspect of this broken system: the devastating impact on

children and families of the failed system for providing legal representation to parents accused of neglect

or abuse of their children.

I. - THE ANATOMY OF THE SYSTEM

A. The Evolution of the Right to Counsel in New York City Family Court

New York State authorized the establishment of juvenile courts in 1922, with a focus on abuse,

neglect and delinquency cases.6 In 1962, the Legislature centralized all family matters in Family Court,

which was given jurisdiction of custody, visitation, paternity, child support, family violence, abuse and

neglect, foster care, adoption, persons in need of supervision (PINS), and most juvenile delinquency

matters.7 That same year, the Legislature also authorized independent counsel for all children subject to

Family Court delinquency, status offender and neglect jurisdiction. 8

In 1970, the law was amended to grant the right to counsel to all children subject to Family

Court proceedings,9 and two years later the Court of Appeals extended that protection to parents as

well. The Court held in Matter of Ella B.10 that

6
See New York Family Court Act §112, L. 1922, c. 547 (known as the Children’s Court Act).

7
F.C.A. §§ 115, 641. Family Court has concurrent jurisdiction with Surrogate’s Court over adoptions. See Domestic
Relations Law, Art. 7. Family Court also has concurrent jurisdiction with Criminal Court over family offense cases,
F.C.A. § 115(e), and with Supreme Court over all matters handled in Family Court. F.C.A. § 114. See also New York
State Constitution, Art. 6, § 7.

F.C.A. § 241. “Findings and Purpose: This declaration is based on a finding that counsel is often indispensable [sic]
to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and
proper orders of disposition.” Id. New York was among the earlier State’s to codify this right. See also In Re Gault ,
387 U.S. 1 (1967)(holding that juvenile offenders are entitled to counsel).

9
F.C.A. §§ 248, 249; See also In Re Dwayne G, 695 N.Y.S.2d 293 (2d Dept. 1999); In Re Jamie TT, 599 N.Y.S.2d 892
(3d Dept 1993) (indigent children with claims in Family Court which implicate the child’s liberty interest are entitled to
meaningful and effective legal representation by assigned counsel).

10
30 N.Y.2d 352 (1972).
2
 [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 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 City’s 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 Children’s 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

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. Wilcox, 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 State’s designated agent for child welfare
purposes, but it is operationally independent of HRA.

S.S.L. § 398(2)(a)-(f), (6)(a)-(p).

3
 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 child’s 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 child’s life or health, necessitating the removal.22

F.C.A. § 1031.

S.S.L. § 384-a. See also 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.

Tenenbaum held, in part, that the City’s removal of a child on an emergency basis without judicial authorization was
an infringement of the parents’ and child’s procedural 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 ACS’s 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
 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 order’s 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

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
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 child’s service plan and placement, and to review what

services have been provided to ensure and expedite the child’s 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 child’s best interest, or the foster care agency has not

provided the parent 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

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
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.
34
F.C.A. § 243(a). In November 1965, Mayor’s 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
 b. Legal Counsel for the City (ACS)

ACS, the petitioner in involuntary foster care proceedings, is represented by the City Law

Department’s 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 Scoppetta’s December 1996

Plan of Action states 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 ACS’s 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 State’s 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

40
Scoppetta, N., Protecting the Children of New York: A Plan of Action for the Administration for Children’s
Services, (December 19, 1996). According to DLS staff, there are some instances where this is not possible, but,
whenever possible, DLS attempts to have the same attorney stay 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 Appendix A for a detailed
discussion of the governing regulations. See also New York City Bar Associations’ Assigned Counsel Plan (April
28, 1966); Mayor’s Executive Order No. 178 (December 1, 1965); Judiciary Law § 35; 22 NYCRR § 611; 22 NYCRR §
679.
8
§§ 262 or 1120. The same statute provides counsel for indigent persons charged with a crime, or

entitled to counsel under the Surrogate’s 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

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 of
vouchers filed, which was 16, 735 citywide in 1998. Id. This, however, is not very 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 About It , JOURNAL OF
CONSTITUTIONAL LAW, December 1999, 141, 145.

The Administration for Children’s Services, Community Data Profiles (March 1998). In the five community districts
with the lowest median incomes, four of which were in the Bronx, 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 percent 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
 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 City’s

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

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 throughout 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 Appellate
Divisions to the New York State Unified Court System. See Appendices C and D. However, another 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 Division’s reports to the New York State Unified Court System. The reason
for the discrepancy is unclear.
10
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 York’s 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

The City’s 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 City’s costs in the Second Department (Brooklyn, Queens and Staten
Island) 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 city’s budget by $21 million. Child Welfare
Watch, supra 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 Lawyer’s Association Task Force on the Representation of the
Assigned Counsel Compensation 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
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 City’s 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

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 Hourly 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 respondents to C-PLAN’s survey (see 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
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.

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
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

Child Welfare Watch, supra 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 Counsel 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
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

As per Administrative Judge of New York City Family Court Joseph M. Lauria. C-PLAN received a call this May
from a social worker whose client wasn’t assigned an attorney until she had returned to court for the third time.
Others have advised C-PLAN staff that it has become commonplace for parents to be told to come back to court 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
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 regulation’s 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 Department’s 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.

Previously, the law required an attorney applying to the assigned counsel 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
 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 Department’s computer system does not report the number of Family Court

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
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 Department’s admission standards may be more

stringent than those in the First Department; of 37 applicants in 1999, only 25 were approved for

certification.87

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
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

88
F.C.A. § 1022(a).

89
F.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 removal 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 parent’s 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
“1028" hearing to challenge the removal.92 The attorney is faced with a Hobson’s 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

In one instance, a mother who contacted C-PLAN was never even advised by her court-appointed attorney of her
right 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-PLAN’s survey, however, indicated that they did not have an opportunity to
meet with their court-appointed attorney prior to appearing before a judge (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
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 court’s statutory role as arbiter is severely hampered by the accused parent’s

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 parent’s 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

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 respondent’s right to appeal a dispositional order, it in no way mandates that assignment of counsel
end upon entry of the dispositional order.
21
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 court’s 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.

99
F.C.A. § 1055.

100
Any interested person acting on behalf of the child placed in foster care may petition the court for an order
terminating placement where an application for the child’s return home was made to the agency with whom the child
is placed, and the application was denied or was not granted within thirty days 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 tunc.
“[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).
22
 As part of the foster care agency’s 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 (SPR’s) every six months for the duration of the child’s

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

See the discussion of legislation drafted by OCA, infra at 27.

104
S.S.L. § 409-e(1), (2).

105
S.S.L. § 409-e(3). In 1999, an audit by the Comptroller’s 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 signatures provides no evidence that parents are actually reviewing or
included in the Service Plan Reviews. Hevesi, A., Audit of the Administration for Children’s 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 Comptroller’s 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 up to age 21.

107
S.S.L. § 409-e(3). See also 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.
23
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 SPR’s 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 child’s 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

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 repeatedly to maintain contact with or plan for the future of
the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to
encourage and strengthen the parental relationship ...” S.S.L. § 384-b(7)(a). A “strong association between
frequency of parental visiting and discharge of child” has been found, 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 Support 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.
24
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 City’s 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.

113
McGowan, B. & Walsh, E. “Policy Challenges 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.
25
 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 appoint the same attorney who previously provided

representation for case conferences and any termination of parental rights proceeding. 116 Requiring

respondents to move for assignment of counsel for representation at case conferences post-disposition

is placing the burden on the wrong party; parents have a right to counsel where the state interferes with

their fundamental right to the care and control of their children. That right does not, and should not, end

until the case has been completed.

D. Inadequate Fees Lead to Inadequate Representation

1. Difficulty Recruiting and Retaining Attorneys

As the number of Family Court filings increases, so does the need for court-assigned counsel.

Yet, as discussed in Section I(B)(2)(c) above (infra p. 12), court-assigned attorneys are reimbursed at

rates that make adequate counsel impossible; attorneys cannot even afford to maintain an office under

the current fee structure.

Even if a panel attorney was able to work seven hours a day in court, five days a week, for 12

months, the total annual reimbursement would be $67,200 before taxes. That does not leave enough

for the attorney to rent an office, collect a salary, pay overhead, and hire a support staff.

115
Family Court Advisory and Rules Committee, 2000 Annual Report: New ASFA-related Proposals (December
1999).

116
Id.
26
 Chief Judge Judith Kaye’s report on assigned counsel compensation made clear just how

inadequate assigned counsel fees are. In 1995, individual overhead costs for a single attorney in a law

office of five or fewer attorneys -- the typical arrangement for attorneys who handle assigned counsel

work -- averaged approximately $55,000 per year. Adjusted by 15% to estimate an average

attorney’s overhead costs today, the annual expense is $63,250. Based on a 35-hour work week, that

equals average hourly overhead costs of $34.75. Before taxes a panel member with average hourly

overhead expenses loses $9.75 for every out-of-court hour of assigned counsel work and makes a

profit of only $5.75 for every in-court hour of work.117

This inability to earn a decent living and maintain a law office, which in turn makes it impossible

to provide adequate representation to clients, makes it very difficult to recruit attorneys as panel

members. The irony is that the assigned counsel panels originally were devised as something akin to

part-time pro bono work, but, with the increase in cases and the severe shortage of attorneys, it has

evolved into a full-time, and inadequately compensated.118

In addition, more and more attorneys are leaving the panels as they realize the impossibility of

the task with which they are faced.119 It is not just that there is no financial incentive; it is that the lack

of resources prevents them from being able to represent their clients in a professional manner. Also, the

N.Y.S. Unified Court System, Assigned Counsel Compensation Report, supra note 68, citing a 1997 study by the
New York State Bar Association.

In fact, one attorney reported leaving the First Department panel because one of the judges expected her to work
full-time for the panel and be in court everyday. The attorney, however, viewed her court appointed work as a way
to supplement her income while starting her own practice.

119
Several individuals recounted stories of assigned counsel leaving the panel because they simply could not afford
to continue with their practice and were overwhelmed with the challenges they faced in representing parties in
Family Court.
27
multiple complex issues faced by this client population require extensive and time-consuming work, for

which assigned counsel are not always entitled to reimbursement.120

Finally, a number of panel members reported frustration about what they perceive to be an

institutional bias against their clients who are respondents in child protective proceedings.121 Informal

interviews in Bronx Family Court elicited a general sense from panel attorneys that they are destined to

lose their cases. This is borne out in statistics generated by OCA showing that 88% of abuse and

neglect petitions brought in 1996 resulted in a finding against the parents, who prevailed in only 1.6% of

the fact-finding hearings.122 This feeling of being destined to lose, coupled with inadequate pay, lack of

resources and insufficient time to build a good defense for their clients, leaves panel attorneys with little

incentive to continue working on these difficult cases.

2. Disincentive to Perform Out-of-Court Work

The difference in reimbursement rates for in-court and out-of-court work creates further

problems for assigned counsel. Out-of-court work encompasses meetings with the client, making

investigatory phone calls, and motion practice; all are necessary parts of any effective legal

representation. It is widely recognized that out-of-court preparation is “vital to the efficient disposition

120
For example, Ms. S has two children in foster care. She is a welfare recipient. When the children were removed,
welfare wrongfully reduced her rent allowance to that of one person, instead of three. She is now at risk of losing her
apartment, which means that she will not be able to have her children returned. Ms. S needs a representative to
assist her in addressing the rent issue with welfare. A court-assigned attorney, however, does not have the time or
resources to address this issue, nor would reimbursement be likely for this “collateral” issue.

The idea of institutional bias against respondents in abuse and neglect cases is not too far-fetched. As of 1999,
eight of the Giuliani administration’s 15 Family Court Judicial appointments have prosecutorial backgrounds. Only
two of the others have practiced non-prosecutorial family law recently. The administration has not appointed a
children’s or parent’s lawyer to the bench.

In the remaining 10-11% of cases, the petition was withdrawn, consolidated, transferred or dismissed for other
reasons. Child Welfare Watch, supra note 22. In 1997, allegations were established in 85% of the child protective
proceedings brought in Family Court, and only .7% of the cases were dismissed after fact-finding (in other words,
the allegations could not be established). OCA, Original Dispositions of Child Protective Petitions: Breakdown of
Dispositions (1997).
28
of cases.”123 In order to make sound decisions that have lasting consequences on the lives of children

and families, Family Court judges need thorough lawyering that can only be accomplished through out-

of-court work. Yet, the two-tier system of remuneration, by its very nature, encourages underpaid and

overworked panel members to perform the minimum amount of work out-of-court. For example, a

March 1997 study by the Vera Institute of Justice found that, of files reviewed in the Bronx, only 5%

contained at least one motion by a parent’s attorney; in Manhattan, the occurrence was only slightly

higher, at 15%.124

In one instance, staff at C-PLAN observed a case in which the law guardian had filed an Order

to Show Cause requesting that the mother’s visitation be significantly reduced. The court-appointed

attorney submitted no reply papers, and, when questioned by the judge, stated “I guess I should have

done that.” The judge allowed him an additional two weeks to reply to the law guardian’s application.

E. Lack of Institutionalized Resources

Most assigned counsel members either do not have their own offices and operate from court, or

are private practitioners sharing a receptionist with other small law offices. This results in panel

attorneys more or less working out of their briefcases. Many panel attorneys instruct their clients to

“come to Family Court” in order to meet with them to prepare for an upcoming court date because they

spend all day, every day in court.

123
New York County Lawyers’ Association, Task Force on the Representation of the Assigned Counsel
Compensation Committee (February 1997). Often, the time an attorney spends on a case out-of-court is more
valuable than the time spent in-court. N.Y.S. Unified Court System, Assigned Counsel Report, supra note 68.

124
Armstrong, Trone, & Finck, New York State Family Court Improvement Study, (The Vera Institute of Justice,
1997).
29
 Panel members do not even have access to basic resources within the court that could at least

make adequate representation a possibility. Until very recently, assigned counsel in Bronx Family

Court did not have access to photocopiers,125 and there was one phone to be shared among all panel

members in Manhattan Family Court from which no outgoing calls could be made.126 There are two

small rooms designated for panel members in the Bronx, and they are forced to meet with their clients in

the waiting area if one of the few private interview rooms is not available.127 In light of plans to

construct a new Family Court in Queens, a request for interview rooms designated for use by panel

members was made. The request was denied.128

Although attorneys are working with clients with a myriad of serious personal problems,

assigned counsel generally do not have ready access to social workers, housing or public benefits

specialists, or domestic violence services. They lack receptionists to answer phones or type letters, and

they do not have paralegals to aid them in doing legal research or drafting documents. 129

125
Panel attorneys in the Bronx reported that the only way to get copies of client files from the Record Room was to
be on good terms with the clerks. They also reported being refused access to the photocopier in the Court law
library and being told the machine was not intended for their use.

126
Vitullo-Martin & Maxey, Report of the Family Court Service Project, (October 18, 1999) (unpublished manuscript,
on file with The Vera Institute of Justice). According to Harriet Weinberger, supra note 78, the most frequently
lodged complaint about 18-B attorneys is that they do not return phone calls. Fifty-six percent of the respondents to
C-PLAN’s survey reported that their attorneys do not return their phone calls (see Appendix G).

In response to the C-PLAN survey, 48% of the respondents reported that when they met with their attorneys, they
were unable to do so in private (see Appendix G).

Harriet Weinberger, supra note 78.

129
Such a law office existed for a short time in Brooklyn. In 1993 and 1994, Beth Harrow ran a three-lawyer unit at
Brooklyn Legal Services Corporation A, funded by the state legislature to provide continuous representation for
each parent. A social worker helped clients who needed social services enroll in community-based programs.
Attorneys had access to the institutional resources of the Legal Services Corporation. The unit handled 71 cases
and helped return 58 children to their families. When the money ran out, however, the legislature refused to renew
the funding. Child Welfare Watch, supra note 22 at 10, citing Tobis, D. & Horowitz, B., “Legal Services for Family
Preservation: Assessment of a Pilot Project of Brooklyn Legal Services Corporation A,” (April 1995).
30
 DLS and The Legal Aid Society also have strained resources, but they are in a far better

position than assigned counsel. They have access to offices, telephones, social workers, supervision,

training and support staff. Parents are the only parties in child protective proceedings who are not

provided with comparable support systems. To be effective, and to successfully reduce the time a child

spends in foster care, a parent’s attorney must have similar resources readily available.130

F. The Lack of Specialization

Members of the assigned counsel panels in Family Court represent both adults and children,

and they deal with a wide array of proceedings and a complex body of law: custody, visitation, child

support, family offense (domestic violence), abuse and neglect, termination of parental rights, juvenile

delinquency, paternity, persons in need of supervision (PINS), adoptions, and foster care reviews.131

JRD has dealt with this diversity of Family Court practice by creating specializations within the agency;

attorneys and social workers are assigned to either a delinquency team, to original child protective

cases, or to permanency planning. 132 Judges are also specializing, with their Parts being devoted to: (1)

family offense, custody and visitation, and contested paternity cases; (2) juvenile delinquency and

persons in need of supervision (PINS) cases; (3) abuse and neglect and termination of parental rights;

or (4) child support cases, which are handled by hearing officers.133 The City Law Department,

headed by the Corporation Counsel, has also specialized by creating the Division of Legal Services

130
“ ... [T]he most cost effective preventive service we could provide would be good attorneys for parents.” David
Lansner, counsel to the New York State Assembly Committee on Children and Families. Id.

131
Supra note 7.

132
Telephone interview with Sam Dalberg, Attorney-in-Charge, The Legal Aid Society Juvenile Rights Division,
Brooklyn (December 20, 1999).

133
Interview with Judge Lauria, supra note 83.
31
(DLS), which exclusively represents the Administration for Children’s Services in child protective

cases.

This system of specialization is beneficial in three ways. First, the client gets an attorney who is

specifically trained and able to keep abreast of a particular area of law. Second, specialization allows

for professional growth and development, making the attorney an even stronger advocate for the client.

Finally, specialization in Family Court promotes efficiency and competency.

G. Insufficient Accountability and Judicial Oversight

As Judge Elkins of Brooklyn Family Court stated, “[i]f representation is inadequate, then the

entire court is inadequate. The court culture accepts delays, adjournments, and being unprepared. ...

With so few resources, sloppiness is accepted.”134

The most recent report by the Special Child Welfare Advisory Panel135 highlights some of the

most glaring problems with New York City’s Family Courts, specifically pointing to the lack of

adequate representation for parents, pervasive delays, lack of professionalism, lack of attention to

critical legal dictates, and judges who see themselves as “powerless victims of the system.”136

One of the most disturbing sections in that document is the reported acknowledgment by some

judges that they

do not hold ACS accountable by refusing to grant their petitions when they lack
adequate preparation or fail to present a solid evidentiary case of abuse or neglect.
They felt they could not risk making a mistake and having a child die; spoke of the
134
Telephone interview by C-PLAN intern, Howard Goodman, with Judge Lee Elkins, Brooklyn Family Court
(December 7, 1999).

This Panel was created as part of the 1998 settlement of the class action lawsuit Marisol v. City of New York, 95 Civ.
10533 (RJW).

Special Child Welfare Advisory Panel, Advisory Report on Front Line and Supervisory Practice, (March 9, 2000),
available on the Annie E. Casey website at www.aecf.org.
32
 withering media attention to decisions which turn out badly; and cited the lack of
Court of Appeals support for insistence upon solid legal evidence for removal,
noting the doctrine of ‘safer course’ that the higher court typically relies upon.137

This comment more than any other underscores the need for quality legal representation for

parents. The institutionalization of incompetence and inadequacy on all levels must be rectified. All

practitioners working in Family Court should be held to high standards and be made accountable when

they fail to meet them.

H. The Impact on Children

Those who suffer the most from all of these problems, of course, are the children. They are

sometimes unnecessarily or for too long separated from their parents and siblings. For example, in

1998, 12,000 children in foster care were separated from at least one of their siblings.138 In addition,

the foster care system often fails children badly and sometimes even causes them physical harm.

According to a recent ACS study, the number of investigated 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 the non-kinship (relative) homes.139 That, of course, is the

most devastating statistic of all, and one which should motivate all concerned to move speedily to

restructure the system.

Id at 48.

This represents half of all children in foster care in 1998 with siblings. Administration for Children’s Services,
Reform Plan Indicators Status Report 2 (March, 2000) at 37.

Id at 89.
33
III. - RECOMMENDATIONS

A. Short Term Recommendations

1. Increase Reimbursement Rates to $75 Per Hour

Any steps to improve the assigned counsel system must begin with an increase in fees. At a

minimum, to combat the dwindling numbers of panel members, the disincentive to performing out-of-

court work, and the impossibly high caseloads, the reimbursement rate should be raised significantly,

based on a flat fee for both in-court and out-of-court work.

On January 10, 2000, Chief Judge Judith S. Kaye proposed a fee increase for assigned counsel

to $75 an hour for both in and out-of-court work and abolishing the $800 cap on fees per case.140 She

proposed to fund the increase with the nearly $70 million in criminal surcharge fees collected by the

State, thus imposing no new financial burden on local governments. In the alternative, Judge Kaye has

proposed that the large amounts of unpaid criminal court fines be collected in order to create a funding

source for an increase in fees.141 Judge Kaye’s original proposal has been introduced in the Assembly

by Helene Weinstein (A-10083). Strong support for an increase in fees has been developing over the

past several years.142

140
Hon Judith S. Kaye, “New York State of the Judiciary Address,” New York Law Journal (January 10, 2000).

Wise, Daniel, “New Collection Effort Begins for Court Fines,” New York Law Journal (April 26, 2000).

For example, over the last three years, key Judiciary and Executive Branch officials have expressed their concerns
that the reimbursement rates fixed by law create a risk of inadequate representation. See Hon. Judith S. Kaye, “New
York State of the Judiciary Address,” supra note 140 (“a bedrock component of our State’s commitment to equal
justice is the availability of qualified assigned counsel to represent indigent litigants in Criminal and Family Court
matters. Unfortunately, our ability to honor that commitment is at risk.”); Emi Endo, “Attorney Shortage? Call to
Raise Court-Appointed Fees?,” N.Y Newsday (June 3, 1999), at A43 (quoting Chief Administrative Judge Jonathon
Lippman that because of the current rate structure “the quality of representation has clearly suffered and the system
is at a point of a breakdown.”); letter from Deputy Chief Administrative Judge Juanita Bing Newton to Governor
George Pataki (December 18, 1997)(calling the current rates “outdated” and “unfair,” and noting that “[i]t will become
increasingly difficult to realize a continuation of the high quality of justice we currently employ if steps are not taken
to increase the rates paid assigned counsel.”); letter from Administrative Judge for the Twelfth Judicial District
Burton B. Roberts to Governor Pataki (November 24, 1997)(calling the current rates “an affront and beneath the
dignity and vision of New York, which has always been renowned for being in the forefront of providing competent
representation for defendants who are indigent.”); 1997 petition signed by all fifty Justices and Judges of the
34
 Unfortunately, Governor Pataki has made clear that he has no intention of raising assigned

counsel fees.143 The issue may ultimately be resolved by the courts, since the New York County

Lawyers Association has sued the governor on this issue, alleging violations of both the State

constitution and State law.144

Increased fees, however, only begin to address the injustices in Family Court. Our already

overburdened system is faced with a multitude of new challenges under ASFA, which requires that

children be freed for adoption much quicker than before, leaving parents with less time to obtain

services and work to reunify their families.145 With the system as overburdened and understaffed as it

is, the extension of placement and permanency hearings are perfunctory and fail to provide the parents

a genuine opportunity to challenge ACS’s determination that the child needs more time in foster care or

should be freed for adoption. 146

Supreme Court, Twelfth District, Civil and Criminal Branches (recommending that the rates be increased and that the
distinction between rates paid for in-court and out-of-court work be abolished); letter from Kings County Supreme
Court Justice Carolyn E. Demarest to Governor Pataki (May 30, 1997)(stating that “[b]ecause so few attorneys are
able or willing to accept the minimal compensation” provided, “those few who are willing to accept these
assignments have so many cases they are often over-extended and unable to devote the time necessary to properly
represent all their clients.”); 1997 petition signed by eighty-nine members of the Bench in Kings County
(recommending that the rates be increased and that the distinction between in and out-of-court work be abolished);
letter from Manhattan District Attorney Robert M. Morgenthau to Governor Pataki (July 17, 1997)(stating that “[t]he
present level of compensation makes it less likely that qualified counsel will undertake court appointments to
represent poor defendants.”); testimony of New York City Criminal Justice Coordinator Steven M. Fishner before the
City Council (January 24, 2000)(stating the Mayor Rudolph Guiliani supports Chief Judge Kaye’s proposed rate
increase and stating that the “current challenge facing the Assigned Counsel Plan is maintaining a sufficient number
of attorneys” given the “simply inadequate” rates paid to them).

143
Caher, J., “Proposed Budget Has No Increase For 18-B Fees,” New York Law Journal (April 6, 2000). See also
Caher, J., “Raise In Court Fines Would Benefit Victims: Pataki Opposes Pay Raise for Assigned Counsel,” New York
Law Journal (January 11, 2000).

NYCLA v. State of New York and Governor Pataki, Supreme Court (N.Y. County), Index No. 102987/00.

Following the 1999 New York State implementation of federal ASFA, the number of petitions to terminate parental
rights filed in Family Court jumped by one-third to 4,201. Child Welfare Watch (a joint publication of the Center for
an Urban Future and the New York Forum), Too Fast for Families (Winter 2000) at 6.

146
Senator DeWine of Ohio (R) is sponsoring legislation in Congress that would award grants to State and local
courts for the development and implementation of data collection and case tracking systems for abuse and neglect
cases; for addressing barriers to achieving permanency and backlogs of termination of parental rights and
adoptions, including establishing night courts, hiring additional judicial personnel and attorneys, and extending the
35
 Terminating parental rights does not, however, guarantee that the child will find a permanent

family. There are far too few adoptive families available for foster children, particularly those who are

older or who have special needs. Some advocates believe ASFA may create a whole new troubled

group of “legal orphans.” There is already evidence of numerous children returned to foster care after

a disrupted -- or “failed” -- adoption. So far, it appears ACS is not keeping statistics on these

unfortunate cases in which the children just recycle back into foster care.

With an increase in the reimbursement rate to a reasonable amount, more attorneys will be

willing to work on the assigned counsel panels, which in turn would reduce the assigned counsel

caseloads. Higher payment rates and lower caseloads would be a step in the right direction in

bettering the assigned counsel system of representation and might lead to reduced foster care stays. In

February of this year, a judge in Duchess County proved that point. Ignoring the statutory

reimbursement rates, the judge granted counsel to a parent the $75 per hour fee recommended by

Judge Kaye. The judge rewarded the attorney for doing an excellent and thorough job that allowed

three children to quickly return to their mother, a nursing student, who was wrongly charged with

neglect.147

2. Expand Pilot Projects Providing Interdisciplinary Representation to Respondents

Unfortunately, assigned counsel, even if better paid, cannot both provide legal representation to

their clients and act as social workers. Children subject to abuse and neglect require both legal and

social work services (and JRD has provided this combination for many years). Parents also need a

operating hours of the courts; and for training for judges, judicial personnel, law enforcement, attorneys, and court-
appointed special advocates (CASA), as well as the expansion of CASA to under served areas. “Strengthening
Abuse and Neglect Courts Act of 1999,” S. 708 (March 24, 1999).

Richard, M. “Higher Fees for Family Court Lawyer,” New York Law Journal (February 8, 2000).
36
holistic system of representation to help them achieve family reunification, particularly in light of the new,

short time frames of ASFA. Parents no longer have the luxury of waiting for the bureaucratic processes

of ACS, the foster care agencies or the overburdened judiciary to put services in place.148 In order to

quickly and safely reunify families, realistic, accessible and well-thought out service plans are required,

based on thorough and professional assessments of the family as a whole and the individual members.

There are some model interdisciplinary programs which serve a small number of families.

These should be evaluated and expanded where possible throughout the system. Legal Services of

New York (LSNY), for example, provides interdisciplinary representation to parents with children in

foster care by working closely with social workers in community based agencies, providing out-of-

court representation, referrals, and representation post-disposition. As a full service legal office, LSNY

also has attorneys who specialize in domestic violence, housing and public assistance who are available

to offer their expertise on various cases.

Another model program that utilizes this holistic approach is The Family Reunification Justice

Project, Inc, which was started in September 1999 in Bronx Family Court. The project, funded by the

National Association of Public Interest Law and the law firm of Arnold & Porter, provides social work

services to respondents represented by assigned counsel. The social worker provides intensive case

management, advocacy and crisis intervention through the duration of the court case and for one year

past return of the children to their home. The majority of this work occurs between court dates, and,

since the social worker maintains communication with all parties during the pendency of the matter, the

likelihood that movement towards the safe discharge of the child from foster care will occur is great.

For example, the latest report by the Special Child Welfare Advisory Panel, supra note 136, reveals that it is common
for caseworkers to wait, “sometimes for several months,” until the next court date to change a visiting plan, even
when no court order is required to do so, at 13.
37
 Judge Elkins in Brooklyn Family Court has started a pilot project teaming assigned counsel with

social workers. In certain designated cases (i.e. educational neglect), Judge Elkins signs a voucher for

appointment of a City-reimbursed social work expert to work with the parent for up to ten hours. Case

conferences are scheduled four days after the filing of the abuse and neglect petition. On the seventh

day after the filing of the petition, all parties appear in court. Although it is possible for the social

worker to remain on the case through the entry of a disposition, Judge Elkins’ goal is to expedite

resolution of the cases.

C-PLAN: Child Planning and Advocacy Now, a special project created by Public Advocate

Mark Green in 1995, operates the Pro Bono Legal Assistance Network, which provides pro bono

counsel recruited from the private Bar to biological parents. Attorneys are trained by Professor Martin

Guggenheim of NYU Law School and paired with pro bono social workers who work with the clients.

Through five years of child welfare advocacy, C-PLAN found quality legal representation to be one of

the main needs of parents with children in foster care. In addition, C-PLAN’s expertise in the field

made it obvious that no legal representation could be complete without the assistance of a social

worker. Through the use of this holistic model of representation, several families have been safely

reunified.

Holistic services like these should be institutionalized and made available to all members of the

assigned counsel panel. There is strong reason to believe that the initial cost of such services will be

off-set over the long run with shorter stays for children in foster care, less recidivism due to poorly

conceived and implemented service plans, and fewer adjournments due to lack of communication and

information. A 1995 study of a model LSNY office that had social workers on staff found that through

continuity of representation, interdisciplinary practice, and institutional support, children spent less time

38
in foster care.149 Such services would allow assigned counsel to focus their energies on the legal

matters at hand, knowing that their clients have social workers to aid with service referrals, provide

advocacy at Service Plan Reviews and case conferences, and assist the client in working with the other

systems that impact their Family Court cases.

Also, judges need to be educated about the benefits of holistic services for parents so that they

have a better understanding of the need for comprehensive, interdisciplinary services. A judge’s refusal

to sign a voucher for the appointment of a mental health expert undermines strategic legal decisions

made by attorneys and bars access to the one resource currently made available to assigned counsel.

3. Establish Specialized Panels of Attorneys

While some members of the assigned counsel panels “self-specialize” by making it known to

judges and court officers that they will only work on certain cases,150 a more formal system should be

put in place.

The idea of specialization is not a new one; the benefits to practitioners and clients are clear,

which explains why private firms specialize and why Family Court has moved in that direction. There is

only one model program currently operated that is authorized to receive 18-B fees for specialized

representation. It is operated by Sanctuary for Families, which provides legal services for victims of

domestic violence.151

Tobis, D. & Horowitz, B., supra note 129.

150
As reported by several panel members.

There are a number of agencies that have essentially “stepped in” to handle particular cases that would have
previously been referred to the assigned counsel panel. The Children’s Law Center, a special state funded law office
with staff attorneys and social workers, provides representation to children in custody and visitation matters. The
New York Society for the Prevention of Cruelty to Children also provides representation to children in custody and
visitation cases. Lawyers for Children provides representation and social work services to children. Victim Services,
Sanctuary for Families, and Network for Women’s Services all provide representation and social work services to
39
 In order to promote quality representation in Family Court, the assigned counsel panel should

follow suit with The Legal Aid Society’s Juvenile Rights Division, ACS’s Division of Legal Services,

and the judiciary by specializing. Divisions for family offense; abuse and neglect, foster care reviews,

and termination of parental rights cases; and delinquency and PINS cases should be created within the

Family Court panels, allowing the attorneys to provide their clients with specialized services, enhance

their professional development and growth, and add to the efficiency of the Family Court system.

Custody, visitation, paternity and child support cases should be left as part of the general caseload that

any panel member can handle.

4. Establish Continuity of Representation

Assignment of counsel for respondents in child protective proceedings should not end until the

matter is completed; that is, until the child is returned to the home and the period of ACS supervision

has ended, or the child is freed for adoption. There is no reason under the law that representation

should end at the entry of a dispositional order, and such practice flouts the national standards for

assigned counsel adopted by the National Legal Aid and Defender Association, 152 as well as

recommendations by the United States Department of Health and Human Services that “the same legal

representatives for the child, parent and State remain involved throughout the case.”153 Such continuity

is imperative for the court to function effectively and will allow attorneys for all parties to “[a]ctively

domestic violence victims in Family Court. Finally, LSNY has family law units that represent parents in child
protective proceedings. None of these organizations, however, can handle the full volume of cases referred to them.

152
Supra note 57.

153
Duquette & Hardin, Adoption 2002: The President’s Initiative on Adoption and Foster Care: Guidelines for
Public Policy and State Legislation Governing Permanency for Children, Children’s Bureau, U.S. Dept. of Health and
Human Services, pp. IV-4, IV-5, VII-5 – VII-6 (June 1999).
40
participate in every critical stage of the proceedings.”154

Increasing the duration of representation, increasing the rate of payment, and instituting a

holistic, interdisciplinary approach to representation would allow for continuity of representation,

familiarity with the family and their needs, and meeting those needs thoroughly and promptly.

5. Increase Oversight and Accountability

The courts should be a place of justice for all, particularly when such sensitive and vital issues

as family life and the safety of children are involved. Both the judicial system and the administrators of

the assigned counsel panels should have the ability to provide the necessary checks and balances

needed to insure that the system works properly.

In addition, the clients, judges and panel administrators need to be vested with more of a voice

about the assigned counsel system. Upon being appointed an attorney, the client should be provided

with a “Client Bill of Rights and Responsibilities” (see Appendix F) specifically tailored to

representation in Family Court, along with the name and phone number of the court assigned attorney,

and the means of lodging a complaint.155 This would provide clients with a clear idea of their rights and

responsibilities, as well as those of their attorneys. In addition, it would insure that clients are provided

with the information they need to contact their attorneys.

When a client believes that any of the rights enumerated in the handout has been violated, the

client should be able to lodge a formal complaint with both the administrators of the panel and the

154
National Council of Juvenile and Family Court Judges, Resource Guidelines: Improving Court Practice in Child
Abuse and Neglect Cases , at 22 (1995).

155
This is based on a suggestion by a staff member at the Vera Institute of Justice who suggested that the clerk in
each Part have a “Client Bill of Rights” on the computer. When an attorney is appointed, the clerk can enter the
attorney name and phone number on the document and print it out. It can then be given to the client along with the
adjourn date slip.
41
Family Court judge. In addition, more weight should be given to recommendations from Family Court

judges, as they interact with panel attorneys on a day-to-day basis. The Appellate Division should vest

more authority in Family Court judges to discipline panel attorneys when necessary.

Client evaluations of panel attorneys should be made a regular part of the re-application and re-

certification process.156 Evaluation forms should be made available at Legal Information for Families

Today (LIFT) tables and in the Petition Room. Client evaluations should be utilized not only to identify

problem areas within the assigned counsel system, but to identify and recognize attorneys who do

exceptional work. In a field as emotionally taxing as this one, positive feedback is necessary to

maintain motivation.

Partially certified attorneys should be required to become fully certified within 12 months, and

“second-seating” should be utilized in this process. Panel members should be reimbursed at a reduced

rate for in-court time while shadowing more experienced attorneys.

The panel administrators should maintain records of which attorneys have been assigned to which cases

and monitor the caseloads of panel members. It is important that there be some oversight of a system

that is charged with an interest as fundamental as family life.

6. Replicate and Expand the Successful Model Courts

Manhattan’s Model Court is an example of how a system of accountability and judicial

oversight can improve the delivery of services to families. The Model Court is part of a nationwide

pilot project exploring better methods of achieving permanency for children. The goals of the project

are to facilitate and increase information presented at each court appearance, increase compliance with

156
This suggestion comes out of an undated report from the Coalition of Battered Women’s Advocates by Robyn
Thiemann.
42
court orders, and facilitate more efficient case management. In addition, the project strives to decrease

disposition time, the number of placements, and the time between termination of parental rights and

finalization of adoptions.

The Model Court is flush with resources; a judge, two referees, a social worker, an ACS

liaison, and court clerks. The judge presides over all removal hearings, fact-finding hearings,

dispositional hearings, contested permanency hearings and contested extension of placement hearings.

One referee ensures that all parties are notified of what is taking place, sets up the service plan,

facilitates getting services in place, follows-up with the various agencies, and oversees case

conferences. The other referee reviews compliance with the service plan, reviews permanency goal

changes, and tracks permanency planning. The social worker tracks data and analyzes repeat

problems and trends. The ACS liaison facilitates and addresses barriers to service delivery, while the

court clerks monitor submission of reports and termination petitions, generate orders and collect data.

During calendar year 1999, 286 cases came before the Model Court. One hundred fifty-four

have had preliminary and settlement conferences, 70% have had fact-finding completed within 60 days

(the usual average is 180-210 days), and 60% have reached the dispositional stage.157

This intensive judicial oversight and availability of resources has enabled members of the

assigned counsel panel working in the Model Court to serve their clients better; with short adjourn

dates and follow-through on service delivery, agencies involved with the family are more likely to abide

by service plans. This allows the attorney to focus his or her energies on the legal issues of the case.

Clients who are provided with the services they need are more likely to be focused and easier to work

157
December 20, 1999 Update on the Model Court by Judge Schecter, held at The Children’s Aid Society.
43
with. Short adjournments keep all parties up-to-date on what is happening with the case, and case

conferences allow for much needed communication to occur.

B. Long-Term Recommendation - An Organization for Parent Representation

The best way to combine all of the recommended changes -- accountability, specialization,

social work support services and institutional resources -- is to establish a legal organization to

represent parents in child protective proceedings.158 The assigned counsel panel would still be needed;

with conflicts of interest and high caseloads, there will always be cases that an institutional model will

not be able to manage.

Based on our analysis, we believe that the costs of an institutional model of representation

would be off-set in the long run by savings as a result of fewer children entering foster care and shorter

stays for those that do enter the system. Currently, the annual cost of maintaining a child in a foster care

boarding home is about $15,000 per year. Children in New York City spend an average of four years

in foster care,159 compared with the national average of 33 months. The estimated cost of maintaining

the approximately 36,000 children currently in foster care in New York City is $723 million per

year.160 More appropriate legal representation of 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 of children in foster care boarding homes in New York City were

Even Katharine Law, supra note 72, has acknowledged that institutionalized representation would be the best option
given the demands of ASFA.

The City of New York, Office of the Comptroller, Bureau of Management Audit, Audit of the Administration for
Children’s Services Efforts to Move Children Out of Foster Care , (November 30, 1999).

160 Based on an average of $15,000 per child, per year for maintenance in foster care boarding homes and $54,000 per
child, per year for maintenance in congregate care. Approximately four-fifths of children in foster care are in
boarding homes.
44
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.161

While no comparable jurisdiction has implemented an institutionalized model of representation

for parents involved in child protective proceedings, the Honorable Trine Bech, a Vermont Supreme

Court Justice, spearheaded a campaign to design an alternative model to Vermont’s assigned counsel

plan. After two years of meetings and focus groups with professionals and clients, Vermont has

identified the needs of a model system of representation for parents, which are as follows:162

1. Full-time staff attorneys trained in family law, child abuse and neglect, social service delivery
and alternative dispute resolution (ADR) models;

2. Pay for these staff attorneys that is the equivalent of other state, county and agency
attorneys;

3. Appointment of attorneys for parents for the duration of the matter;

4. Training, support and supervision for staff attorneys;

5. Manageable caseloads;

6. Staff attorneys who work in conjunction with family advocates, paralegals or social workers
who can educate and assist the parents;

7. Tools to measure the performance of the attorneys.

The hope is that the Vermont legislature will fund a three-year pilot project to test the model.

New York State would benefit from a similar project.

Foster care costs are shared by the federal, state and city governments. Assigned counsel (18-B) costs for the
representation of adults, in contrast, are paid entirely by the localities.

This information comes from Judge Bech’s presentation at the New York City Association of the Bar on January 24,
2000.
45
 Conclusion

It is clear that dramatic changes must be made in New York City’s Family Court system to

ensure that parents have access to justice, children do not suffer unnecessarily, and families are

strengthened rather than destroyed. It is not enough to raise the reimbursement rate or to abolish the

distinction between in and out-of-court work; adequate representation cannot be guaranteed without

restructuring our current model of ad hoc representation. In the interim, many of the problems with the

system as it exists today can be ameliorated through the use of some or all of the short-term

recommendations made in this report. However, implementing these changes will not resolve the crisis

in the system. If New York State is to meet its statutory and constitutional duties of providing

representation to indigent adults involved in Family Court matters, fundamental changes must be made.

If parents have access to adequate representation, everyone will gain; money will be saved, Family

Court will function more effectively, and children will receive the stability and permanence to which they

are entitled.

46
 Regulations Governing Assigned Counsel

1. The First Department (Manhattan and the Bronx)

Governed by Section 611 of Title 22 of New York Codes, Rules and Regulations (NYCRR),

and codified in Section 611 of the New York Rules of Court, the assigned counsel plan in the First

Department is known as the Family Court Panel Plan, and is administered by the Law Guardian

Director who is appointed by the Presiding Justice of the Appellate Division, First Department.1

According to the Rules, the Departmental Advisory Committee to the Family Court is to be made up of

at least twenty-two members,2 and has the authority and responsibility to oversee the operation of the

Family Court Panel.3 These duties are conducted pursuant to bylaws originally promulgated to govern

the assigned counsel plan for indigent criminal defendants.4

Under the regulations, attorneys are appointed to the Family Court Panel for a one year term,

subject to recertification. 5 An attorney seeking admission to the Panel must be screened by the

1
New York Rules of Court § 611.1(a), (b); 22 NYCRR § 611.1(a),(b).

2
The Departmental Advisory Committee “shall be composed of fifteen attorneys who shall be experienced in Family
Court proceedings, three Family Court judges, one representative from each of the three bar associations ..., one
faculty member of an accredited law school in the First Judicial Department, the Law Guardian Director and the
Assigned Counsel Plan Administrator.” New York Rules of Court § 611.6(a); 22 NYCRR § 611.6(a). All committee
members except the representatives from the three bar associations are nominated by the Justices of the Appellate
Division, First Department. New York Rules of Court § 611.6(b); 22 NYCRR § 611.6(b).

3
New York Rules of Court § 611.5; 22 NYCRR § 611.5. The Departmental Advisory Committee to the Family Court
“considers all matters that pertain to the performance and professional conduct of individual panel plan attorneys in
their assignments as panel attorneys and the representation of indigent parties in Family Court proceedings.” Id.

4
New York Rules of Court Section 611 Appendix A, “Central Screening Committee Indigent Defendant’s Assigned
Counsel Plan.” See also New York Rules of Court § 611.7; 22 NYCRR § 611.7 (“The Law Guardian Director shall be
substituted where reference in the Bylaws is made to the Administrator.”).

5
New York Rules of Court § 611.4(b); 22 NYCRR § 611.4(b).
1
Departmental Advisory Committee in accordance with the standards for admission entitled “General

Requirements for All Applicants to The Family Court Panels.”6 This statutorily created document is in

actuality the application for admission to the assigned counsel panel.7

According to the strict language of the Rules, upon submission of an application (see

Attachment 1), the Departmental Advisory Committee assigns a Committee member to review the

application and contact two-thirds of the required references, at least two in each category (judges,

adversaries and colleagues).8 A written recommendation of the action to be taken on the application is

then made.9

Once a written recommendation is made by the Committee member, the Chair of The

Departmental Advisory Committee can either accept the recommendation or refer the application to the

Committee for review. The applicant may be invited to address the Committee in this instance.10 The

Committee then votes to: certify the applicant; deny certification, in which case the attorney may not

reapply for the panel for one year; or set conditions that the applicant must meet.11 For example, an

applicant who does not have sufficient experience to qualify for admission to the Panel may be granted

partial certification in the categories in which the attorney is qualified, provided the attorney completes

the requirements for full certification within twelve months.

6
New York Rules of Court § 611.8(a), (b); 22 NYCRR § 611.8(a), (b).

7
Telephone interview by Hank Orenstein, Executive Director of C-PLAN, with Katharine Law, Administrator, Law
Guardian Panel, First Department.

8
New York Rules of Court § 611 Appendix A, 2.3; 2.4.

9
Id at 2.4.

10
Id at 2.5.

11
Id at 2.5(1)-(3); 2.8.
2
 A partially certified attorney may also be recommended to participate in the co-counsel

program, where the attorney works under an experienced Family Court practitioner and attends training

sessions on Family Court practice and procedures.12 After completing the program, a report on the

attorney is submitted which is reviewed and evaluated by the Family Court Advisory Committee.13 The

co-counsel program can also be part of the orientation and training for new panel members which

allows them to “second-seat” on cases and shadow a mentor attorney for two to four weeks, unpaid.

Because it is unpaid, the co-counsel program is not mandatory. 14

Once admitted, the regulations require that panel attorneys must biennially (every two years)

complete at least eight hours of training and education programs that focus on practice in Family Court

developed and conducted by The Departmental Advisory Committee, the Assigned Counsel Plan, the

Office of Projects Development, and the three bar associations.15 In light of the mandatory continuing

legal education required by New York State, panel attorneys must now complete 24 hours of training

and education every two years, with at least eight hours specifically related to family law and practice.16

These organizations must also work together to annually promulgate a list of recommended training

and education programs pertaining to family law sponsored by independent providers of legal

education.17

The regulations require that panel attorneys are to be evaluated annually by The Departmental

12
New York Rules of Court § 611.9(a)(3); 22 NYCRR § 611.9(a)(3).

13
Katharine Law, supra note 7.

14
Id.

15
New York Rules of Court § 611.9(a)(1), (b); 22 NYCRR § 611.9(a)(1), (b).

First Department, “Selection and Evaluation of Law Guardian Panels and Disqualifying the Law Guardian.”

17
New York Rules of Court § 611.9(a)(2); 22 NYCRR § 611.9(a)(2).
3
Advisory Committee in consultation with Family Court judges, colleagues of the panel members, and

the bar associations.18 The Committee files the evaluations with the Appellate Division along with a

report which contains information about the performance of panel attorneys, the efficiency of the panel

as a means of representing indigent parties, training and education programs, and proposals for

improving the operation of the panel.19

Complaints about the competence and conduct of panel attorneys are accepted and recorded

by the Law Guardian Director, which are forwarded to the Chair of The Departmental Advisory

Committee.20 The Chair can either dismiss the complaint or refer it to a committee member for further

investigation.21 Once referred, a subcommittee made up of the Chair, the Law Guardian Director and

two additional committee members vote as to whether the attorney should be suspended; suspension

continues pending a resolution of the complaint.22 The investigation into the complaint must be

completed within ninety days, at which time a report to the full Committee is made with findings and

recommendations.23 The Committee may invite the attorney to appear before the Committee and may:

dismiss the complaint, adopt the recommendation, reject the recommendation, suspend the attorney

and impose conditions for restoration, recommend the substitution of the attorney on some or all cases,

18
New York Rules of Court § 611.10(a); 22 NYCRR § 611.10(a). Evaluations of the panel attorneys are confidential.
Katharine Law, supra note 7.

19
New York Rules of Court § 611.10(a); 22 NYCRR § 611.10(a). An annual report of the operation of the panel is also
filed by the Appellate Division with the Chief Administrator of the Unified Court System. Id at § 611.10(b). See also
22 NYCRR § 611.10(b). See Appendix C. This report is considered “pro forma” and simply certifies that the panel
attorneys are qualified to practice law and meet minimum standards. Katharine Law, supra note 7.

20
New York Rules of Court Section 611 Appendix A, 3.1.

21
Id at 3.2.

22
Id at 3.3.

23
Id at 3.5.
4
or remove the attorney from any or all panels.24 The attorney has a right to written notification of the

action taken by the Committee, but the determination of the Committee is final and nonappealable.25

The Appellate Division always has the authority to suspend or remove an attorney from the panel.26

It is the Advisory Committee to the panel that is responsible for reviewing applications, ensuring

that certain standards are met, and disciplining members of the panel. It has been reported that the

Advisory Committee pursues disciplinary actions when necessary and has even dismissed attorneys

from the panel. The Committee is also charged with dealing with complaints panel members may have

about payments.

2. The Second Department (Brooklyn, Queens, and Staten Island)

Governed by Section 679 of Title 22 of New York Codes, Rules and Regulations (NYCRR),

and codified in Section 679 of the New York Rules of Court, the assigned counsel plan for the Second

Department is known as the Family Court Law Guardian Plan, which is administered by the Director of

the program who is appointed by the Appellate Division of the Supreme Court, Second Department

and supervised by the Presiding Justice.27 The Family Court Law Guardian Plan has an Advisory

Committee made up of the Deputy New York City Administrative Judge - Family Division (or a

designee), a representative of each of the Second Department county bar associations, a member of the

faculty of an accredited law school, and three additional members (at least one of whom is not an

attorney).28 The Advisory Committee is vested with the power to establish procedures for appointment

24
Id at 3.6(1)-(6).

25
Id at 3.8; 3.9.

26
Id at 3.10.

27
New York Rules of Court §§ 679.1, 679.2; 22 NYCRR §§ 679.1, 679.2.

28
New York Rules of Court § 679.4(a); 22 NYCRR § 679.4(a).
5
and reappointment of attorneys to serve on the panel, to periodically evaluate panel attorneys, to train

panel members, investigate complaints made against members of the panel, and remove attorneys from

the panel when necessary. 29

Attorneys are appointed to the panel for one year, subject to reappointment.30 To be eligible

for recommendation for appointment to the panel, the regulations require that the attorney be admitted

to and be a member in good standing of the bar of the State of New York and have served as counsel

or co-counsel in a minimum of three proceedings under Family Court Act article three, six or ten.31 The

Advisory Committee is free to set forth additional requirements and procedures as they see fit, subject

to approval by the Appellate Division.32 The minimum requirements may be waived if, in the opinion of

the Advisory Committee, the applicant is otherwise qualified by reason of education, training or

substantial trial experience.33

The Advisory Committee, in conjunction with the Director of the Law Guardian Plan, is

responsible for establishing a training and education program for members of the panel.34 Attendance

at the training programs is a requirement for continued membership on the panel.35 Currently, panel

attorneys are required to complete 24 hours of training every two years.36 Training topics range from
29
New York Rules of Court § 679.5; 22 NYCRR § 679.5.

30
New York Rules of Court § 679.7; 22 NYCRR § 679.7.

31
New York Rules of Court § 679.6(a); 22 NYCRR § 679.6(a).

32
New York Rules of Court § 679.6(d); 22 NYCRR § 679.6(d). See Attachment2B, “Application for Membership,
Kings County Family, Supreme and Surrogate’s Court, LawGuardian/18B Assigned Counsel Plan.”

33
New York Rules of Court § 679.6(c); 22 NYCRR § 679.6(c).

34
New York Rules of Court § 679.9; 22 NYCRR § 679.9.

35
Id.

36
This is as per a statewide directive by Judge Judith S. Kaye, Chief Judge of the Court of Appeals, in keeping with
New York State’s mandatory continuing legal education requirement. Telephone interview by Hank Orenstein with
Harriet Weinberger, Director, Family Court Law Guardian Plan, Office of the Law Guardian, Supreme Court of the
6
termination of parental rights, adoptions, and custody to delinquency and person in need of supervision

(PINS) cases.37 New attorneys are offered a “fundamentals course” that can be conducted in person

or on videotape.38

Assignment of cases varies by borough; in Brooklyn and Queens, attorneys have days on

which they are assigned to intake during which they pick up new cases. There are no intake days in

Staten Island, as there are only two judges there.39

It is the responsibility of The Advisory Committee to establish procedures to periodically

evaluate the representation provided by panel members.40 These evaluations are completed with

information from Family Court judges and “other appropriate and knowledgeable persons.”41 No

attorney whose representation is determined to be unsatisfactory will be recommended for

reappointment.42 The Advisory Committee may, at any time, make a written recommendation to the

Presiding Justice of the Appellate Division that an attorney be removed from the panel.43

The Advisory Committee also must submit an annual evaluation to the Appellate Division of the

operation of the plan and training programs and recommendations for improvements.44 As with the

State of New York, Appellate Division, Second Department (November 27, 1999). The regulations are silent as to
specific training requirements.

37
Id.

38
Id. The “fundamentals course” does not count towards the 24 hour requirement.

39
Id.

40
New York Rules of Court § 679.8; 22 NYCRR § 679.8

41
Id.

42
Id.

43
New York Rules of Court § 679.10; 22 NYCRR § 679.10. The recommendation must be submitted in writing, along
with a report of the basis for such a recommendation. Id.

44
New York Rules of Court § 679.12; 22 NYCRR § 679.12.
7
First Department, the Appellate Division of the Second Department is required to file an annual report

with the Chief Administrator of the Courts (see Appendix D).45

45
Id.
8
Note:

Appendix A, Attachments 1 & 2 available on request

Appendix B, C, D, & E available on request

To request these appendices, please e-mail mgreen@pubadvocate.nyc.gov, or write to the Public

Advocate’s Office, 1 Centre Street, NY, NY 10007.

9
 Appendix F

Model Family Court “Statement of Client’s Rights and Responsibilities”

YOUR COURT-APPOINTED ATTORNEY IS ________________________. HIS/HER

PHONE NUMBER IS ___________________.
Your attorney is appointed by the court and is reimbursed by the City or State. At no time should
your attorney request or require payment from you.

You are being provided with this document to inform you of what you, as a client, are entitled to. To
prevent any misunderstanding between you and your attorney, please read this document carefully. If
at any time you feel your attorney is not honoring these rights, you may make a complaint about your
attorney to the judge hearing your case or by calling:

IN MANHATTAN AND THE BRONX: 212-779-7880

IN BROOKLYN, QUEENS AND STATEN ISLAND: 718-855-3619

You have a right:

1. To ask questions or your attorney about the way your case is being handled.
2. To an attorney who is readily available to represent your interests and keep you informed about
your case.
3. To an attorney who will represent you zealously.
4. To an attorney who will keep confidential information revealed in the course of the relationship.
5. To regular contact with your attorney, and to have your telephone calls, letters and other inquiries
responded to promptly.
6. To be kept informed of the status of your case, and to be provided with copies of correspondence
and documents prepared on your behalf or received from the court or your adversary.
7. To be informed of, and be present during, all court dates involving your case.
8. To make the ultimate decision on the objectives to be pursued in your case, and to make the final
decision regarding the settlement of your case.
9. To an explanation of the proceedings in which you are involved, as well as the purpose and outcome
of each court appearance.
10. To request of the judge that a different attorney be appointed to your case if you believe that your
attorney is not exerting his or her best efforts on your behalf.

It is your responsibility:

1. To be truthful in all discussions with your attorney, and to provide all relevant information and
documentation to enable your attorney to competently prepare your case.
2. To keep appointments made with your attorney, or to contact your attorney in advance to cancel or
reschedule meetings.
3. To keep your attorney informed of any new developments that may have an impact on your case.

10
THE C-PLAN SURVEY

A. Purpose

C-PLAN’s goal in surveying birth parents was to document their experiences with
assigned counsel. Since the project’s inception in 1995, C-PLAN has heard repeated complaints
from clients about their court-appointed attorneys. To look at specific variables of the attorney/client
relationship and overall client satisfaction, a survey consisting of 21 questions was administered to 158
parents who have been appointed legal counsel by New York City Family Court. The surveys were
completed between 1998 and 1999.
Areas surveyed included overall client satisfaction and perceived quality of legal representation.
Also collected were statements written by the clients themselves. Although not intended to be scientific,
the survey has enabled us to understand qualitatively the way in which assigned counsel has affected
real lives.

B. Prior Related Studies

The Vera Institute of Justice, from November 1998 to May 1999, interviewed 450 civilian
Family Court users as part of a project to provide feedback to the New York County Judiciary about
problems in Family Court, with the goal of fostering improvements. The survey was very broad,
documenting the physical environment of the court, scheduling, waiting time, access to information, as
well as consumer attitudes about legal representation. The study found that Family Court users had
difficulties communicating with their court-appointed attorneys. Others reported that their attorneys
were unprepared when they came to court and were not adequately informed about the case. In all,
over 27% of the respondents said their attorney was unhelpful. 1

Vitullo-Martin & Maxey, Report of the Family Court Service Project (October 18, 1999) (unpublished manuscript, on
file with The Vera Institute of Justice, New York, N.Y.)
1
C. Method

Development of Survey
C-PLAN tracks client-specific information and demographics on a customized computer
database. This data, along with verbal reports from clients and other advocacy groups, were used to
develop the list of survey questions intended to reflect the quality of legal representation (see copy of
survey attached).
The questionnaire consisted of 21 items. The first 13 offered a “yes/no” response option and
were comprised of individual variables addressing the client/attorney relationship and the types of
services that were actually provided to clients by assigned counsel. Examples of attorney services
include providing a client with the attorney’s name and phone number, advising clients of their legal
rights, and appealing court decisions. The attorney-client relationship was measured by variables
related to communication, such as “Was your attorney’s explanation of your legal rights and options
clear and easy to understand?” and “If you were able to speak with your attorney, [before appearing
before the judge] were you able to do so in private?”
The last eight questions had six categories based on a Likert-like scale: never, rarely,
sometimes, most of the time, always, and does not apply. Questions included, “Do you feel your
attorney expressed your desires in front of the judge?” and “Did your attorney discuss the judge’s ruling
with you and how it would affect you?” These questions were designed to measure the degree of client
satisfaction with their legal representation. The content of these last eight survey questions were also
drawn from case data and C-PLAN practice experience to reflect the main concerns that were
expressed by our clients regarding their court-appointed attorneys.
Additional space was provided on the survey to explain for clarification of any responses,
as well as an open-ended “comment” section at the end.

Sample and Data Collection

One hundred and fifty-eight surveys were completed. An interviewer administered the survey
to clients and provided specific instructions. The surveys were administered to parents in a variety of

2
settings, including several parent education and support groups located in Harlem and the Bronx, a
drug treatment program, the C-PLAN office and Manhattan Family Court. Respondents had court
cases in all five New York City counties. The survey was printed in English but was translated by
bilingual interviewers at one of the interview locations.

D. Findings

Table 1 below summarizes the results of the first thirteen questions on the survey.

Table 1 (N=158)

Summary of Responses to Questions Pertaining to Attorney Services

Variable Yes No

Did your attorney give you his/her name? 96% 4%

Did your attorney give you his/her business address? 83% 17%

Did your attorney give you his/her business phone? 88% 12%

Does your attorney return phone calls? 44% 56%

Did your attorney ever ask you for money? 5% 95%

Were you assigned your attorney on the first day you 69% 31%
were in court?

If so, were you able to speak with your attorney 57% 43%
before appearing before the judge?

If so, were you able to speak with your attorney in 52% 48%
private?

Did your attorney advise you of your legal rights and 47% 53%
options?

If so, was your attorney’s explanation of your legal 42% 58%

rights and options, clear and easy for you to
understand?

3
 Variable Yes No

Did your attorney advise you of your right to appeal a 27% 70%
final order?

*If you wished to appeal, did your attorney explain to 19% 74%
you the process of starting an appeal?

*If you wished to appeal a judge’s final decision, did 13% 53%
your attorney appeal the decision for you?

*For these variables, there were some missing responses because the question did not

apply to all respondents.

In reviewing these results, we observed that clients responded affirmatively more often in the
categories related to attorneys providing them with basic information – their name, business address
and phone number. The percentage of “no” responses appears to increase with the level of intensity or
time demanded by the service. The fact that 56% of respondents indicated that their attorneys did not
return phone calls reflects the daily reality of attorneys with high caseloads, and a disincentive and lack
of time to perform out-of-court work. Just 47% of respondents indicated that their attorney advised
them of their legal rights and options. This supports our general observation that many parents who
contact our office seem uninformed about their rights and responsibilities in Family Court.
Table 2 below lists the mean scores for questions that were measured in a Likert-like scale –
with values from zero to five -- as follows:
Always = 5
Most of the Time = 4
Sometimes = 3
Rarely = 2
Never = 1
Does Not Apply to Me = 0

A mean score greater than 3 indicates some degree of satisfaction, while a mean score of less
than 3 indicates a degree of dissatisfaction. The overall statistical mean for these combined scores is
2.84, indicating an overall score that reflects a less than satisfactory rating.

4
 Table 2 Overall Satisfaction Scores (N=158)

Variable Mean

Do you feel your attorney treated you with respect? 3.10

Did you leave the court knowing what the judge had 3.07
ruled and what you were required to do?

Do you feel your attorney listened to you and understood 2.97

what you were saying?

Did your attorney discuss the judge’s ruling with you and 2.90
how it would affect you?

Was your attorney prepared for your court appearance? 2.80

Do you feel your attorney expressed your desires in front 2.72

of the judge?

Did your attorney discuss and share court papers with 2.34
you?

Average Score = 2.84

The areas of lower satisfaction were in response to questions related to attorneys discussing
and sharing court papers (2.34), expressing clients’ desires in front of the judge (2.72)
and being prepared for court (2.80). The latter two questions are perhaps the most critical indicators
of court outcomes from the clients’ perspective.
Fifty percent of respondents answered that their attorneys never shared court papers with them,
and 41% answered that their attorney was either never (27.6%) or rarely (13.8%) prepared for their
court appearance. Just 22.4% of respondents indicated that their attorneys were always prepared for
their court appearance. Other responses further highlight client perceptions about the quality of their
legal representation. For example, just 30% of respondents answered that their attorneys adequately
expressed their desires in front of the judge (in the courtroom) either always (18.7%) or most of the
time (11%). Thirty percent responded that their attorneys never expressed their desires in front of the
judge.
5
Respondent Comments
Of the 158 completed surveys, 76 respondents included written statements to clarify their
responses or to summarize their feelings about how their attorney handled their case. Lack of
preparation by the attorney, difficulty reaching the attorney by phone, the attorney not showing up to
court, and lack of professionalism were the most frequent complaints. A few excerpts follow:

• “I feel that my attorney could be doing a better job. It’s hard to get in touch with him
because he’s always out of the office.”
• “ . . . Always in a rush – never fights ACS decisions. . . ”
• “No conferences held. Cross examination was extremely meager and mostly
unproductive. . .No witnesses were called! . . .”
• “I sent the attorney a certified letter in April 1998 requesting an adjournment and that
she contact a witness. She received the letter prior to the court date but still failed to
comply with my requests. A finding of neglect was entered in my absence.”
• “I didn’t like the way my attorney handled my case because she did not take the time to
hear what I had to say. When we entered the courtroom my attorney did not even
speak out on my behalf, and she also waived my right for a 1028 . . . ”
• “I submitted documents which he asked for that were pertinent to my defense, and he
never presented them to the court. I’m sure the first judge would have considered
them, which would have resulted in an earlier discharge for my children and overall save
my family from all the unnecessary anguish of continued placement for two years.”
• “On my first meeting with my attorney he informed me of what was said by ACS.
However, on my next court date when I tried to inform him that some of the information
he had was incorrect, he brushed me off very abruptly and would not let me interject
with my comments, which made me ask if he was on my side or not”

There were a number of parents who commented that it seemed that their attorneys were more
beholden to the court than to representing their interests and wishes. Some expressed frustration that

6
their attorney seemed to be part of an uncaring court bureaucracy rather than a true advocacy system.
Several respondents indicated that their attorneys complained about how little they get paid.

Limitations and Future Research

Some respondents answered the survey questions based on experiences with several attorneys,
while others had only been recently introduced to their first attorney. For those with only one encounter
with an attorney, answers to questions 14-21 may be misleading, in that the answer choices imply a
routine or pattern of representation as opposed to a single experience. Some respondents had limited
literacy abilities, making it difficult for the interviewer to determine if they fully understood the questions.
Several respondents were unclear about the “legalese” used in the survey, such as “final order” and
“appeal.”
Future research related to parent satisfaction should examine possible intervening variables,
such as the outcome of family court hearings and the nature of the allegation against the parent. Given
the emotionally charged nature of family court cases and the devastating impact of having one’s children
removed, the degree of parent satisfaction with the quality of their legal representation is likely to be
related to the outcome of their case – that is, whether or not their children are returned. We also
recognize that parents, given the tremendous impact that Family Court decisions have on their lives,
tend to focus their frustrations on their attorneys. Demographic information, including age, gender,
race and ethnicity as well as comparative analyses with court innovations and enhanced models of legal
representation may also be instructive. In addition to surveys, focus groups and interviews might reveal
additional information and increase the degree of accuracy and descriptiveness of the responses.
While it is clear that there are cases involving attorney incompetence, C-PLAN’s understanding
of the assigned counsel system leads us to conclude that most of the problems stem from severe
structural flaws in the system of legal representation, rather than flaws in individual attorneys. Even
talented and knowledgeable attorneys are hard-pressed to provide quality legal representation under
the working conditions and deficient resources that we have described in Justice Denied: The Crisis in
Legal Representation of Birth Parents in Child Welfare Proceedings (May, 2000).

7
 About C-PLAN

C-PLAN: Child Planning and Advocacy Now was established in 1995 by New York City
Public Advocate Mark Green in response to ongoing problems in the city’s child welfare system which
for decades had been plagued by a lack of accountability and poor service delivery. C-PLAN was the
first initiative of The Accountability Project, Inc., a non-profit organization that was created to assist the
Public Advocate in promoting improvements in city government.

C-PLAN uses an innovative three-pronged approach to child welfare advocacy: it investigates

individual consumer complaints, identifies and documents systemic problems and trends, and promotes
systemic changes and policy reforms.

C-PLAN does not advocate for a particular position on whether children should be returned to
their families; our mission is to ensure that people involved in the city’s child welfare system are treated
fairly, that their rights are valued and respected, and that they are receiving the information and services
to which they are entitled. Through individual case work, weekly support groups and advocacy
training, we teach parents about their rights and responsibilities. We challenge public and private child
welfare agencies to provide services in a timely manner and to promote child and family well-being. In
some cases, advocates accompany clients to Family Court, foster care agency service plan reviews and
other case conferences.

Since our inception in 1995, C-PLAN has provided assistance to more than 2000
child welfare consumers, including biological parents, relatives of children in foster care, foster parents
and youth, touching the lives of more than 5,000 children. C-PLAN receives 50-60 new complaints
each month, mostly from low-income parents with children in foster care.

C-PLAN created our Family Court Initiative in 1997 to better understand and correct
injustices in the system by recruiting and training pro bono attorneys and social workers to represent
parents in Family Court and to initiate a systemic analysis of the problems in the legal representation of
birth parents.

C-PLAN has issued several reports that include: The Child Welfare Scorecard (1998),
which identified problematic trends and gaps in services, and assessed the progress and impact of the
city’s Administration for Children’s Services (ACS )reforms; and Creating a Child Welfare System
for the 21st Century (1996) , which outlined 25 concrete recommendations for reforming the child
welfare system.

C-PLAN’s 30-member Advisory Council includes fellow advocates, representatives from

academic institutions, policy experts, community-based organizations, government and parents.

For additional information about C-PLAN, please contact us at 212 669-4955.