Unified Court System - Judiciary of New York

NEW YORK STATE

Unified Court System

OFFICE OF COURT ADMINISTRATION LAWRENCE K. MARKS

CHIEF ADMINISTRATIVE JUDGE

MEMORANDUM

EILEEN D. MILLETT

COUNSEL

To: From: Re:

All Interested Persons

Eileen D. Millett

Request for Public Comment on Adopting a New Section 205.19 of the Uniform Rules of the Family Court to Develop Uniform Standards of Eligibility for Assigned Counsel That Would Apply in All Family Court Proceedings

Date:

June 3, 2022

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The Administrative Board of the Courts is seeking public comment on a proposal, proffered by the Chief Judge's Commission on Parental Legal Representation (the "Commission"), to issue a new Section 205.19 of the Uniform Rules of the Family Court (Exhibit A, 22 NYCRR ? 205.19) that would implement a uniform standard of eligibility for assigned counsel that would apply in all Family Court proceedings and would include a presumption of eligibility for counsel in child welfare proceedings. (Exhibit B ? Interim Report to the Chief Judge, p. 30.) The Commission, chaired by former Presiding Justice Karen Peters, proposed in its February 2019 Interim Report to Chief Judge Janet DiFiore (Ex. B) that uniform standards of eligibility in Family Court proceedings be developed and implemented. The Office of Indigent Legal Services has developed these uniform standards and issued the Standards for Determining Financial Eligibility for Assigned Counsel in revised form on February 16, 2021 (Exhibit C ? "ILS standards"). The proposed rule (Ex. A) closely tracks the ILS standards and provides the uniformity recommended by the Commission for all assignments of counsel for adults in civil cases pursuant to Family Court Act ? 262, Surrogates Court Procedure Act ? 407, and custody and visitation proceedings in Supreme Court under Judiciary Law ? 35(8).

In the specific context of Family Court child welfare proceedings, the proposed rules state that counsel must be provided:

(i) upon the filing of a petition or pre-petition request under Article 10 of the Family Court Act for an order for immediate removal of a child or temporary order of protection; (ii) where the court has received notice of an

COUNSEL'S OFFICE ? 25 BEAVER STREET, NEW YORK, NEW YORK 10004 ? PHONE: 212-428-2150 ? FAX: 212-428-2155

extra-judicial emergency removal of a child; or (iii) upon the filing of a petition alleging abuse or neglect against the parent or person legally responsible.

(Ex. A, Section 205.19 (a)(3)). According to the proposed rules, counsel may be provided during the investigative phase of a child protective proceeding prior to the filing of a petition. Tracking the ILS standards (Ex. C), the proposed rules provide several presumptions of eligibility, including, among others, cases in which the person seeking counsel earns at or below 250% of the federal poverty level, is confined or incarcerated, is receiving need-based public assistance or, within the past six months, has received assigned counsel in another proceeding (Ex. A, Section 205.19 (b)).

The Commission submits that the promulgation of such a court rule is authorized under the New York State Constitution, according to Levenson v. Lippman, 4 N.Y.3d 280 (2005). The Commission further states that the promulgation of Section 205.19 falls within the Chief Administrative Judge's regulatory power, in conjunction with the Administrative Board, under the New York State Constitution and supervisory authority over the courts under the Judiciary Law and Family Court Act. See NY Constitution Article VI ?28(b); Judiciary Law ?212(1); Family Court Act ?212(a). The Commission also notes that many public hearings were conducted in 2018 and 2019 in advance of drafting the proposed rules, with four public hearings devoted to the issue of financial eligibility issues. The Commission submits that there was widespread support for uniform eligibility standards and for timely access to counsel, especially when the loss of the care of a child is at issue.

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Persons wishing to comment on the proposal should e-mail their submissions to rulecomments@ or write to: Eileen D. Millett, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York, 10004. Comments must be received no later than August 3, 2022.

All public comments will be treated as available for disclosure under the Freedom of Information Law and are subject to publication by the Office of Court Administration. Issuance of a proposal for public comment should not be interpreted as an endorsement of that proposal by the Unified Court System or the Office of Court Administration.

Exhibit A

Section 205.19 (additions underlined):

Section 205.19. Financial eligibility for publicly funded counsel.

A person entitled to publicly funded counsel pursuant to section 262 of the Family Court Act, section 407 of the Surrogate's Court Procedure Act, or section 35(8) of the Judiciary Law shall be financially eligible for counsel when the person's current available resources are insufficient to pay for a qualified private attorney, the expenses necessary for effective representation, and the reasonable living expenses of the person and any dependents. Counsel shall be provided unless the person is conclusively ineligible based upon the criteria in this section. The provisions of this section shall be applied uniformly, consistently, and with transparency.

(a) Timely access to counsel.

(1) Counsel shall be provided at the first court appearance or immediately following the request for counsel, whichever is earlier. Eligibility determinations shall be made in a timely fashion so that representation by counsel is not delayed.

(2) Counsel shall be provided to persons who have not obtained counsel prior to initiation of a proceeding which may result in detention, in removal of children from their care or where there is an unavoidable delay in the eligibility determination, subject to judicial approval once the court proceeding has begun. For timely access to counsel, a person seeking counsel prior to the filing of a petition shall be provided with the contact information of the entity which has the primary responsibility in the jurisdiction for providing representation.

(3) A parent or legally responsible person, as defined by law, shall be entitled to and provided with immediate representation by counsel: (i) upon the filing of a petition or pre-petition request under Article 10 of the Family Court Act for an order for immediate removal of a child or temporary order of protection; (ii) where the court has received notice of an extra-judicial emergency removal of a child; or (iii) upon the filing of a petition alleging abuse or neglect against the parent or person legally responsible. In accordance with this entitlement, counsel shall be provided sufficiently in advance of the person's first court appearance and shall also be provided for parents during a child protective agency investigation, consistent with paragraph (2) of this subdivision.

(b) Presumptions of eligibility. The following presumptions of eligibility shall apply and are rebuttable only where there is compelling evidence that the person seeking counsel has the financial resources sufficient to pay for a qualified private attorney, the expenses necessary for effective representation in this and related proceedings, and the reasonable living expenses of the party and any dependents:

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(1) The person's net income is at or below 250% of the Federal Poverty Guidelines, provided, however, that a person with an income in excess of 250% of the guidelines shall not be denied counsel if other criteria are met;

(2) The person is incarcerated, detained, or confined to a mental health institution; (3) The person is currently receiving, or has recently been deemed eligible pending

receipt of, need-based public assistance, including but not limited to Family Assistance (TANF), Safety Net Assistance (SNA), Supplemental Nutrition Assistance (SNAP), Supplemental Security Income (SSI)/New York State Supplemental Program (SSP), Medicaid, or Public Housing assistance; or (4) The person has, within the past six months, been deemed financially eligible for counsel in another court proceeding in that jurisdiction or another jurisdiction.

(c) Additional considerations. The following factors shall be considered in determining a person's financial eligibility for publicly funded counsel:

(1) Debts and other financial obligations, including the obligation to provide reasonable living expenses of the person and his or her dependents; and

(2) The actual cost of retaining a private attorney in the relevant jurisdiction for the type of matter for which publicly funded counsel is sought.

(d) Exclusions from assets of an applicant seeking publicly funded counsel.

(1) Non-liquid assets shall not be considered unless such assets have demonstrable monetary value and are readily convertible to cash without impairing the person's ability to provide for the reasonable living expenses of themselves and their dependents. Ownership of a vehicle shall not be considered where such vehicle is necessary for basic life activities. The person's primary residence shall not be considered unless the fair market value of the home is significant, there is substantial equity in the home, and the person is able to access the equity in an amount and within a time-frame sufficient to retain private counsel promptly.

(2) Any income from receipt of child support or need-based public assistance shall not be considered in determining eligibility for publicly funded counsel.

(3) Third-party resources. The resources of a third party shall not be considered available to the person seeking publicly funded counsel unless the third party expressly states a present intention to pay for counsel, the person seeking counsel gives informed consent to this arrangement, and the arrangement does not interfere with the person's representation or jeopardize the confidentiality of the attorney-client relationship. Neither the resources of a spouse nor the resources of a parent of a person seeking publicly funded counsel shall be considered, except as provided in this subdivision.

(e) Process for determining eligibility.

(1) Each judicial district shall establish a procedure developed in accordance with guidelines and a uniform screening tool promulgated and approved by the Chief

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Administrative Judge. The court has the ultimate authority to determine eligibility but may delegate the responsibility for screening and making an eligibility recommendation to entities that are independent and conflict-free, including, but not limited to, entities providing representation. (2) The eligibility process, including the documentation required to be submitted, shall not be unduly burdensome for the person seeking publicly funded counsel. Counsel shall not be denied where the person has made a good faith, but unsuccessful, effort to produce required documentation or has made minor inadvertent or technical errors. Nor shall a person be required to demonstrate an unsuccessful effort to retain private counsel to be deemed financially eligible for publicly funded counsel. (3) The court or delegated screening entity shall preserve the confidentiality of the information presented as part of the financial eligibility determination and shall take steps to ensure that the screening and determination are done in a confidential setting and that information identifying the person seeking counsel is not accessible to the public. (f) Reconsideration and review of a denial of publicly funded counsel. (1) A determination denying counsel by either the court or delegated screening entity shall be in writing, shall include reasons for the denial and procedure for seeking reconsideration, and shall be provided to the person seeking counsel. (2) In addition to a procedure for seeking prompt reconsideration from the court or delegated screening entity, each judicial district shall establish a procedure for prompt supervisory administrative review upon request by a person who has been denied publicly funded counsel or for whom an order for payment under section 722-d of the County Law has been issued. These procedures shall be in writing, shall be posted on the judiciary's public website and in each courthouse, and shall be furnished to any person who has been denied publicly funded counsel or who has been issued an order directing payment under section 722-d of the County Law.

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Exhibit B

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