| Matter of Mark T. v Joyanna U. |
| 2009 NY Slip Op 06053 [64 AD3d 1092] |
| July 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Mark T., Appellant, v Joyanna U. et al.,Respondents. (And Another Related Proceeding.) |
—[*1] John D. Cadore, Binghamton, for Joyanna U., respondent. Teresa C. Mulliken, Harpersfield, for Paul V., respondent. J. Mark McQuerrey, Law Guardian, Hoosick Falls.
Malone Jr., J. Appeal from an order of the Family Court of Broome County (Pines, J.),entered March 27, 2008, which, among other things, in a proceeding pursuant to Family Ct Actarticle 5, granted the motion of respondent Joyanna U. to dismiss the petition.
In December 1996, petitioner and respondent Joyanna U. (hereinafter the mother) engaged ina sexual relationship. At that time, the mother was also engaged in a sexual relationship withrespondent Paul V. (hereinafter respondent). The following month, petitioner assaultedrespondent, was arrested and incarcerated. The mother and respondent were married several dayslater and the subject child was born in October 1997. After respondent and the mother divorcedin 2007, petitioner commenced this paternity proceeding, seeking a DNA test to establish that hewas the biological father of the subject child and, in addition, petitioned for visitation. Themother moved to dismiss the paternity petition based on the ground of equitable estoppel. Afterconducting a hearing, Family Court granted the motion and also dismissed the visitation petition.Petitioner appeals. No appeal has been taken on behalf of the child.
The child is represented by a different attorney on this appeal, who filed a brief in [*2]support of an affirmance of Family Court's order, which is aposition counter to that taken by the attorney representing the child in Family Court. Whiletaking a different position on behalf of a child on appeal is not necessarily unusual, the child'sappellate attorney appeared at oral argument and, in response to questions from the court,revealed that he had neither met nor spoken with the child. He explained that, while he did notknow the child's position on this appeal, he was able to determine his client's position at the timeof the trial from his review of the record and decided that supporting an affirmance would be inthe 11½-year-old child's best interests.
In establishing a system for providing legal representation to children, the Family Ct Actidentifies, as one of the primary obligations of the attorney for the child, helping the childarticulate his or her position to the court (see Family Ct Act § 241). As with therepresentation of any client, whether it be at the trial level or at the appellate level, thisresponsibility requires consulting with and counseling the client. Moreover, expressing thechild's position to the court, once it has been determined with the advice of counsel, is generallya straightforward obligation, regardless of the opinion of the attorney. The Rules of the ChiefJudge (22 NYCRR 7.2) direct that in all proceedings other than juvenile delinquency and personin need of supervision cases, the child's attorney "must zealously advocate the child'sposition" (22 NYCRR 7.2 [d] [emphasis added]) and that, in order to determine the child'sposition, the attorney "must consult with and advise the child to the extent of and in a mannerconsistent with the child's capacities" (22 NYCRR 7.2 [d] [1]). The rule also states that "theattorney for the child should be directed by the wishes of the child, even if the attorney for thechild believes that what the child wants is not in the child's best interests" and that the attorney"should explain fully the options available to the child, and may recommend to the child a courseof action that in the attorney's view would best promote the child's interests" (22 NYCRR 7.2 [d][2]). The rule further advises that the attorney representing the child would be justified inadvocating a position that is contrary to the child's wishes when he or she "is convinced eitherthat the child lacks the capacity for knowing, voluntary and considered judgment, or thatfollowing the child's wishes is likely to result in a substantial risk of imminent, serious harm tothe child" (22 NYCRR 7.2 [d] [3]). In such situations the attorney must still "inform the court ofthe child's articulated wishes if the child wants the attorney to do so" (22 NYCRR 7.2 [d] [3];see Matter of Carballeira v Shumway, 273 AD2d 753, 754-757 [2000], lv denied95 NY2d 764 [2000]). The New York State Bar Association Standards for representing childrenstrike a similar theme in underscoring the ethical responsibilities of attorneys representingchildren, including the obligation to consult with and counsel the child and to provideclient-directed representation (see generally NY St Bar Assn Standards for AttorneysRepresenting Children in Custody, Visitation and Guardianship Proceedings [June 2008]; NY StBar Assn Standards for Attorneys Representing Children in New York Child Protective, FosterCare, and Termination of Parental Rights Proceedings [June 2007]).
In October 2007, the Administrative Board of the Courts of New York issued a policystatement, entitled "Summary of Responsibilities of the Attorney for the Child," which outlinesthe necessary steps that form the core of effective representation of children. These enumeratedresponsibilities, which apply equally to appellate counsel, include—but are not limitedto—the obligation to: "(1) [c]ommence representation of the child promptly upon beingnotified of the appointment; (2) [c]ontact, interview and provide initial services to the child at theearliest practical opportunity, and prior to the first court appearance when feasible; (3) [c]onsultwith and advise the child regularly concerning the course of the proceeding, maintain contactwith the child so as to be aware of and respond to the child's concerns and significant changes inthe [*3]child's circumstances, and remain accessible to the child."
Clearly, the child in this proceeding has not received meaningful assistance of appellatecounsel (see Matter of Dominique A.W., 17 AD3d 1038, 1040 [2005], lv denied5 NY3d 706 [2005]; Matter of Jamie TT., 191 AD2d 132, 135-137 [1993]). He was, atthe least, entitled to consult with and be counseled by his assigned attorney, to have the appellateprocess explained, to have his questions answered, to have the opportunity to articulate aposition which—with the passage of time—may have changed, and to explorewhether to seek an extension of time within which to bring his own appeal of Family Court'sorder. Likewise the child was entitled to be appraised of the progress of the proceedingsthroughout. It appears that none of these services was provided to the child (see Matter ofDominique A.W., 17 AD3d at 1040-1041).
Moreover, while the record reflects the position taken by the attorney for the child in FamilyCourt, there is nothing in the record to indicate that the child—who was 11½ yearsof age at the time of the argument of the appeal—suffered from any infirmity which mightlimit his ability to make a reasoned decision as to what position his appellate attorney shouldtake on his behalf. Indeed, absent any of the extenuating circumstances set forth in 22 NYCRR7.2 (d) (3), the appellate attorney herein should have met with the child and should have beendirected by the wishes of the child, even if he believed that what the child wanted was not in thechild's best interests (see 22 NYCRR 7.2 [d] [2]). By proceeding on the appeal withoutconsulting and advising his client, appellate counsel failed to fulfill his essential obligation(see Matter of Jamie TT., 191 AD2d at 136-138).
Accordingly, the child's appellate counsel will be relieved of his assignment, a new appellateattorney will be assigned to represent the child to address any issue that the record may disclose,and the decision of this Court will be withheld.
Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the decision is withheld,appellate counsel for the child is relieved of assignment and new counsel to be assigned torepresent the child on this appeal.