Important New Decisions - December 7, 2011

Child Denied the Meaningful Assistance of Appellate Counsel Where Attorney for Child Failed to Consult with and Advise Child in Manner Consistent with the Child's Capacities"

In Matter of Lamarcus E., --- N.Y.S.2d ----, 2011 WL 5984243 (N.Y.A.D. 3 Dept.)
Respondent was the father of the child (born in 2002). In August 2009, while under petitioner's supervision, the father told petitioner that he intended to relocate to Connecticut in October 2009 to work and live with his girlfriend, but that he would not be taking his son with him. Thereafter, petitioner filed a neglect petition against the father alleging that he planned to permanently relocate to Connecticut without his child and without any viable plan for the child's care in his absence, and that the father planned to place the child in foster care. Upon receipt of the petition, Family Court removed the child and placed him in the custody of petitioner. The father relocated to Connecticut the next day. Following a fact-finding hearing, the father was determined to have neglected his child and, after a dispositional hearing, Family Court directed that the child continue his placement with petitioner. The father appealed. No appeal was taken on behalf of the child. The Appellate Division observed that the attorney assigned to represent the child on this appeal was not the same attorney who continued to represent the child in Family Court. Although the child's appellate attorney had taken a position on this appeal that was consistent with that taken by the child's attorney in Family Court, she reported in her brief that she had not personally met with her client, who was now nine years old. She explained that the child's attorney in the ongoing proceedings in Family Court had been "able to provide me with continuing information on my client, his position and the status of the [proceedings in Family Court]." The child's appellate attorney provided the Appellate Division with no further explanation. Given the foregoing, the Appellate Division found that the child had been denied the meaningful assistance of appellate counsel. Counsel's failure to "consult with and advise the child to the extent of and in a manner consistent with the child's capacities" (22 NYCRR 7.2[d][1] ) constituted a failure to meet her essential responsibilities as the attorney for the child. Client contact, absent extraordinary circumstances, is a significant component to the meaningful representation of a child. Therefore, given the circumstances, and for the reasons clearly articulated in Matter of Mark T. v. Joyanna U. (64 A.D.3d 1092, 1093-1095 [2009] ) and Matter of Lewis v. Fuller, (69 A.D.3d 1142 [2010] ), the child's appellate counsel was relieved, the decision was withheld, and new counsel to be assigned to represent the child on the appeal.


Error to Dismiss Custody Case for Lack of Personal Jurisdiction Given Provision UCCJEA Providing That Physical Presence Of, or Personal Jurisdiction Over, a Party or a Child Not Necessary or Sufficient to Make a Child Custody Determination.

In Matter of Malek v Kwiatkowski, --- N.Y.S.2d ----, 2011 WL 5984260 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the unmarried parents of two daughters (born in 2004 and 2008). The father commenced the proceeding for joint custody and visitation in June 2010, alleging that the mother had relocated with the children in April 2010. The mother appeared pro se by telephone at Family Court's first two hearings, but she withheld her out-of-state address from the father because she alleged that she and the children were fearful of him. At the third appearance, the mother's counsel appeared on her behalf and claimed that she was financially unable to travel to New York at that time. Although the mother's counsel raised the issue of the lack of personal jurisdiction over his client, Family Court stated that the mother had submitted to the court's jurisdiction, set a trial date and told counsel that the mother's failure to appear on that date would result in a default. At the scheduled trial date, however, Family Court directed the mother's counsel to again make a motion to dismiss based on lack of jurisdiction, determined that the mother had not waived service by appearing and dismissed the petition with prejudice.
The Appellate Division reversed. It held that the Family Court erred in dismissing the case for lack of personal jurisdiction given the provision of the Uniform Child Custody Jurisdiction and Enforcement Act found at Domestic Relations Law 76(3), which provides that "[p]hysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination." Further, under the circumstances, it was improper to dismiss the father's petition without first ordering service by an alternative method (see Domestic Relations Law 75-g [1][c] ). The mother had not revealed her address to the father, making normal service of process impractical. Additionally, the court had stated previously that the mother had submitted to its jurisdiction and ordered her to appear for a trial, thus giving the father no reason to believe that jurisdiction remained an issue. The court's peremptory resurrection of the issue when the mother did not appear on the trial date and its grant of the motion without affording the father an opportunity to serve the mother by alternative means was improper under these circumstances and it reversed and
remitted for that purpose.



Support Order Which Fails to Comply with Family Ct Act 413(1)(H) Is Invalid and Unenforceable.

In Matter of McKenna v McKenna, --- N.Y.S.2d ----, 2011 WL 5984262 (N.Y.A.D. 3 Dept.) upon the oral stipulation of petitioner (mother) and respondent (father), an order was entered that set the father's basic monthly child support obligation for the parties' two children at $1,235. In March 2010, the father filed an application to vacate the order, claiming that it did not comply with Family Ct Act 413(1)(h). Family Court affirmed the Support Magistrate's denial of the father's motion.
The Appellate Division reversed. It found that the order was invalid and unenforceable because it failed to include, as required, " 'a provision stating that the parties have been advised of the provisions of [the Child Support Standards Act] and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded' . While the parties acknowledged that they had agreed to the amount that the father would pay in basic child support-before any additional amount was added for child care and health insurance, no reference was made to the presumptive amount of child support under the Child Support Standards Act in their agreement or at the hearing, or in the order ultimately issued by Family Court. Because neither the agreement nor the order advised the parties in accordance with the nonwaiveable requirements of the Child Support Standards Act and the record contained no explanation as to whether or why there has
been a deviation from the child support calculation provided by that statute, the
support order at issue was invalid and unenforceable. The matter was remitted to Family Court to determine the amount of child support that the father was obligated to pay.


Mistrial Granted an New Attorney Assigned Based upon Failure of Attorney for the Child to Fulfill Attorney's Obligations under 22 Nycrr 7.2 (D) to Advocate Child’s Wishes

In Michael H v April H,--- N.Y.S.2d ----, 2011 WL 6015796 (N.Y.Fam.Ct.) on October 4, 1999, the Court issued an Order awarding April "H ("the mother") and Michael "H." ( "the father") joint legal custody of the subject child, Seth "H." with the mother having
primary physical custody of the subject child subject to a schedule of visitation
for the father. On August 3, 2011, the father filed a modification petition seeking sole legal and physical custody. The father alleged among other things, that the child has resided with the father since June 22, 2011, when the mother essentially kicked the child out of her home. During the trial, held on November 2, 2011, the Court conducted a Lincoln hearing to take the subject child's testimony under oath. See, Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 247 N.E.2d 659 [1969]. During the Lincoln hearing, the child, a mature fourteen year old, expressed a clear position to the Court and a reasonable basis for his position. During closing arguments, the Attorney for the Child advocated for a disposition that directly contradicted the wishes of the child as expressed in the Lincoln hearing.
As a result of the Attorney for the Child's closing arguments, the Court became concerned that the Attorney for the Child was not fulfilling her obligations under 22 NYCRR 7.2(d). This section requires the Attorney to zealously advocate for the child's position. See, Krieger v. Krieger, 65 AD3d 1350, 886 N.Y.S.2d 463 [2d Dept 2009]; and Mark T. v. Joyanna U., 64 AD3d 1092, 882 N.Y.S.2d 773 [3d Dept 2009]. Except in two circumstances, the Attorney for the Child must be directed by the wishes of the child even when the attorney believes that what the child wants is not in the child's best interest. The first exception applies when the child is not capable of knowing, voluntary and considered judgment.. The second exception applies when the child's wishes are likely to result in substantial risk of imminent, serious harm to the child.
After considering the events of the trial, the Court, sua sponte, moved for a mistrial and an order assigning a new Attorney for the Child to represent the child's interests going forward based upon the apparent failure of the Attorney for the Child to fulfill the attorney's obligations under 22 NYCRR 7.2 (d). In the Court's opinion the mother in effect stated that that the child was capable of knowing, voluntary and considered judgment as those terms are used by 22 NYCRR 7.2(d). Neither the father nor the Attorney for the Child argued that the child was not capable of knowing, voluntary and considered judgment. The Attorney for the Child's credit frankly acknowledged that she failed to zealously advocate for her client during the closing argument. She acknowledged that although it was an honest mistake, it was a mistake.
The Court declared a mistrial. It found that counsel's error was not harmless. Reasonable minds could differ regarding what order served the best interest of the child
and therefore, closing arguments were important in this case. If counsel elects to
make a closing argument, the closing argument may not advocate for an outcome
which directly opposed the child's position (except in the two circumstances described above). Second, if the Court were to ignore the Attorney for the Child's closing argument placed upon the record and make a decision in this case based upon the rest of the record, the legitimacy of the judicial process could be reasonably questioned. If the Court were to decide in the mother's favor, a reasonable mind may be suspicious that the Court was, in fact, not ignoring the Attorney for the Child's argument. If the Court were to decide in the father's favor, a reasonable mind may be suspicious that the Court was trying to manipulate the outcome in order to render this issue meaningless. Third, the Court could not be certain of the scope of the Attorney for the Child's error. If the error went beyond closing argument, the scope of the evidence admitted may have been effected. Given the Court's decision to declare a mistrial, it was consistent with the administration of justice and the best interest of the child to relieve the Attorney for the Child of any further responsibilities in the matter and to assign a new attorney to represent the child's interests going forward. The Court considered whether or not this issue should be raised sua sponte and acknowledged that neither parent nor the Attorney for the Child raised the issue or asked for any relief as a result of the issue. However, the trial judge was the only person present during the Lincoln hearing other than the child and the Attorney for the Child and thus, the parents and their counsel did not have an opportunity to evaluate the testimony of the child. Furthermore, the Court has an obligation to ensure that an individual's right to zealous advocacy is protected.