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CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS.

The Fourth Department, reversing Family Court, determined the children in the neglect proceeding did not receive effective assistance of counsel from the attorney for the child (AFC). The AFC took positions contrary to the wishes of two of the children (Brian and Alyssa):

The Rules of the Chief Judge provide that an AFC “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]), even if the AFC “believes that what the child wants is not in the child’s best interests” … . There are two exceptions to this rule: (1) where the AFC is convinced that the “child lacks the capacity for knowing, voluntary and considered judgment”; or (2) where the AFC is convinced that “following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child” … . Here, there is no dispute that the trial AFC took a position contrary to the position of two of the subject children … . * * *

Inasmuch as the trial AFC failed to advocate Brian and Alyssa’s position at the fact-finding hearing, he was required to determine that one of the two exceptions to the Rules of the Chief Judge applied, as well as “[to] inform the court of the child[ren]’s articulated wishes” … . Here, the trial AFC did not fulfill either obligation … . Indeed, the record establishes that neither of the two exceptions applied. Matter of Brian S. (Scott S.), 2016 NY Slip Op 05464, 4th Dept 7-8-16

 

FAMILY LAW (CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)/ATTORNEYS (FAMILY LAW, CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)/NEGLECT (CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)/EFFECTIVE ASSISTANCE OF COUNSEL (FAMMILY LAW, CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)

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RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE... NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED.