| Matter of Lamarcus E. (Jonathan E.) |
| 2011 NY Slip Op 08693 [90 AD3d 1095] |
| December 1, 2011 |
| Appellate Division, Third Department |
| In the Matter of Lamarcus E., a Child Alleged to be Neglected.Otsego County Department of Social Services, Respondent; Jonathan E.,Appellant. |
—[*1] Steven Ratner, Otsego County Department of Social Services, Cooperstown, for respondent. Michelle I. Rosien, Philmont, attorney for the child.
Spain, J.P. Appeal from an order of the Family Court of Otsego County (Burns, J.), enteredJuly 28, 2010, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 10, to adjudicate respondent's child to be neglected.
Respondent is the father of the subject child (born in 2002). In August 2009, while underpetitioner's supervision, the father told petitioner that he intended to relocate to Connecticut inOctober 2009 to work and live with his girlfriend, but that he would not be taking his son withhim. Thereafter, petitioner filed a neglect petition against the father alleging that he planned topermanently relocate to Connecticut without his child and without any viable plan for the child'scare in his absence, and that the father planned to place the child in foster care. Upon receipt ofthe petition, Family Court removed the child and placed him in the custody of petitioner. Thefather relocated to Connecticut the next day. Following a fact-finding hearing, the father wasdetermined to have neglected his child and, after a dispositional hearing, Family Court directedthat the child continue his placement with petitioner. The father now appeals. No [*2]appeal has been taken on behalf of the child.
The attorney assigned to represent the child on this appeal is not the same attorney whocontinues to represent the child in Family Court. Although the child's appellate attorney has takena position on this appeal that is consistent with that taken by the child's attorney in Family Court,she has reported in her brief that she has not personally met with her client, who is now nineyears old. She explains that the child's attorney in the ongoing proceedings in Family Court hasbeen "able to provide me with continuing information on my client, his position and the status ofthe [proceedings in Family Court]." The child's appellate attorney has provided this Court withno further explanation.
Given the foregoing, we find that the child has been denied the meaningful assistance ofappellate counsel (see Matter of Jamie TT., 191 AD2d 132, 136-137 [1993]). Counsel'sfailure to "consult with and advise the child to the extent of and in a manner consistent with thechild's capacities" (22 NYCRR 7.2 [d] [1]) constitutes a failure to meet her essentialresponsibilities as the attorney for the child. Client contact, absent extraordinary circumstances,is a significant component to the meaningful representation of a child. Therefore, given thecircumstances herein, and for the reasons clearly articulated in Matter of Mark T. v Joyanna U. (64AD3d 1092, 1093-1095 [2009]) and Matter of Lewis v Fuller (69 AD3d 1142 [2010]), "the child'sappellate counsel will be relieved of her assignment[.] [T]he decision of this Court will bewithheld and a new appellate attorney will be assigned to represent the child toaddress—after consulting with and advising the child—any issue the record maydisclose" (Matter of Lewis v Fuller, 69 AD3d at 1143; see Matter of Dominique A.W., 17AD3d 1038, 1040-1041 [2005], lv denied 5 NY3d 706 [2005]).
Rose, Kavanagh, 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.