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