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Changes recommended for parental legal representation.

Byline: Bennett Loudon

A panel of experts has recommended that the state of New York provide lawyers for indigent parents in child welfare cases, even before the first court appearance.

The Commission of Parental Legal Representation, created about a year ago by Chief Judge Janet DiFiore, called for "a complete transformation" in the state's publicly funded system of parental legal representation in child welfare cases.

"Our conclusion is not a revelation. The systemic problems in our underfunded, county-based system are well-documented, as are the harmful effects of inadequate representation on families and Family Courts," according to the interim report from the Commission.

"Without state funding and oversight, attorneys lack all the resources necessary to deliver the effective assistance to which parents are constitutionally entitled. Those messages clearly emerged in testimony to the Commission," according to the report.

The Commission made six recommendations:

Parents should be informed that they have a right to an attorney and provided one during a child protective agency investigation, even before their first court appearance.

The Commission called for the creation of a state Office of Family Representation to oversee parental representation to ensure high-quality parental legal representation throughout the state.

The Office of Family Representation should develop uniform standards of eligibility for assigned counsel for all Family Court cases and the presumption of eligibility for counsel in child welfare cases should be established in legislation.

The state should fund a study to determine the appropriate maximum caseload standards for attorneys representing parents in Family Court. Until the study is completed, the recommended maximum caseload should be 50 to 60 clients.

The state should pay for parental legal representation in child welfare cases to eliminate disparities among localities.

The hourly rate for assigned attorneys should be increased from $75 to $150 per hour, and the rate should be reviewed and adjusted periodically.

Former Monroe County Family Court Judge Joan S. Kohout, who retired at the end of 2018, testified before the Commission in Rochester in September.

Kohout was pleased with the suggestions that the state should take over funding and oversight of legal services for indigent parents and the increase in the hourly rate for assigned counsel.

"They're wonderful recommendations that certainly are consistent with what I was testifying to," she said Thursday.

The 18-member Commission, which included state Supreme Court Justice Craig Doran, administrative judge for the Seventh Judicial District, was chaired by Karen K. Peters, who served as presiding justice of state Supreme Court Appellate Division, Third Department, from 2012 until her retirement in 2017.

DiFiore created the Commission to study the current state of representation for indigent parents and develop a plan to provide quality, cost-effective legal representation statewide.

"For decades, reports have chronicled the crisis in parental representation, particularly regarding child welfare proceedings. Instances of inadequate representation, delays in access to representation, and the outright denial of representation, are all too frequent," according to the 50-page report.

The Commission held four public hearings, including one in Rochester on Sept. 13. A total of about 40 witnesses testified and the Commission received about 40 written statements.

Carla M. Palumbo, president and CEO of the Legal Aid Society of Rochester, submitted written testimony to the Commission.

"We should be sure that, at all levels, both criminal and Family Court, and civil, that everybody is adequately funded and resourced and trained, and that people have access to the court system by having access to the providers," she said Thursday in a telephone interview.

Under state law, parents in Family Court cases who can't afford a lawyer are provided one at no cost. But county governments are responsible for administering those legal services and the quality of those services varies by location.

"Indigent litigants in New York's criminal courts and Family Courts often have not received effective representation," according to the Commission's report.

There has been significant progress in improving the quality of representation in criminal courts, but "parental representation in Family Court cases has been excluded from these reforms," according to the report.

Because the testimony heard was overwhelmingly focused on the impact of inadequate legal counsel in child welfare cases, the Commission decided to issue an interim report focused on that issue. Other aspects of parental representation will be covered in a final report. (585) 232-2035

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Publication:Daily Record (Rochester, NY)
Date:Mar 7, 2019
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