Opinion
D-24216/07.
Decided September 24, 2008.
Michael A. Cardozo, Corporation Counsel (Rachel Glantz of counsel), New York.
City for Presentment Agency; Angela T. Starr, Jamaica, Law Guardian, Counsel.
By petition filed pursuant to Family Court Act § 360.1 on May 2, 2008 the respondent, Juan G., is alleged to have violated the conditions of an order of disposition entered in this Court on January 25, 2008 which placed him under the supervision of the New York City Department of Probation for a period of 12 months ( see, Fam. Ct. Act § 352.2 [b], § 353.2, § 360.2).
Respondent was adjudicated to be a juvenile delinquent by order dated January 25, 2008 which, upon an order dated January 8, 2008, found that he committed an acts which, were he an adult, would constitute the crime of Criminal Possession of Stolen Property in the Fifth Degree (P.L. § 165.40).
Respondent made his initial appearance upon the violation petition on May 2, 2008. On that date, the Court assigned a Law Guardian to represent the respondent as he had been represented by a court appointed Law Guardian in the prior proceedings upon the delinquency petition ( see, Fam. Ct. Act §§ 249 [a]; 360.3 [4]), and the Court entered an order directing that respondent be detained pending further proceedings upon the violation petition. On June 4, 2008 respondent entered an admission to having violated the condition of the order probation which directed that he attend school regularly and that he not receive any school suspensions. The Court adjourned the proceeding for a new dispositional hearing and updated reports were ordered from the Department of Probation as well as the Family Court Mental Health Services Clinic (Fam.Ct. Act §§ 360.3, 351.1 [2]). With respect to the updated investigation to be conducted by the Department of Probation, the Court directed that the Department investigate the circumstances of respondent's father, Vincente G., whom the Court was advised is employed as a helicopter mechanic by Sikorsky Aircraft Corporation in Connecticut and who resides in a private house in Waterbury, Connecticut.
Sikorsky Aircraft Corporation, located in Stratford, Connecticut, is a unit of United Technologies Corporation, and it designs and produces helicopters for commercial, industrial and military customers. The updated report submitted by the Department of Probation indicates that respondent's father "earns about $80,000 a year" at Sikorsky Aircraft Corporation.
Respondent and both of his parents appeared before the Court on June 24, 2008. On that date, the dispositional hearing was further continued so that respondent's parents could be interviewed by the Mental Health Services Clinic and for the Department of Probation to complete its exploration of placement. The hearing commenced on July 2, 2008 and continued until August 19, 2008. Respondent was released from detention upon the condition that he reside with his father in Connecticut until the next court date ( see, 22 NYCRR § 205.25 [a] [5]). On August 19, 2008 the Court received information from the Department of Probation relating to respondent's adjustment in Connecticut and the Court continued respondent's release and requested the Probation provide a final report to the Court on September 24, 2008. In addition, the Court advised respondent's father, Vincente G., that given his income and assets, he would be required to reimburse the State of New York for the cost of the legal services rendered by his son's Law Guardian in these proceedings upon the probation petition violation.
While there has been no refusal by the respondent's parents to obtain counsel for him ( e.g., State ex rel. Gordon v. Copeland, 803 SW2d 153, 160 [Mo. App. 1991]; In re J.B., 602 A2d 368, 369 [Vt. Sup Ct 1991]; see also, Fam. Ct. Act § 249-a), because respondent's father did not appear before the Court until June 24, 2008, the Court had no information relating to his income and assets prior to then and a Law Guardian was appointed by the Court at public expense. While the Court has been made aware that respondent's father has remarried and may have other support obligations, the Probation Department has also informed the Court that the father earns "at least $80,000 per year" and that he resides in a private house in Connecticut, and when Mr. G. appeared in court on September 24, 2008, he indicated that he was presently residing with his wife, their young child and the respondent in a house she owns in Bridgeport, Connecticut and that had rented his house in Waterbury and was drawing rental income of more than $1,500 per month from his tenant.
The relevant statutes render the parents of a minor child liable for his or her support (Fam.Ct. Act § 413; Social Services Law § 101; Bani-Esraili v. Lerman, 69 NY2d 807, 808), such that it may be said that parents are jointly and severally liable for the support of their children ( see generally, Ravo v. Rogatnick, 90 NY2d 305, 309; Matter of Seagroatt Floral Company, Inc., 78 NY2d 439, 448), and courts have found that the parental obligation to provide support for a child may include the expense of counsel for the child in a juvenile delinquency or other court proceeding as a "proper and reasonable expense" (Fam.Ct. Act § 416; see, Matter of Cheri H., 121 Misc 2d 973, 973-974 1983]; People v. Kearns, 189 Misc 2d 283, 285-286; Matter of Plovnick v. Klinger , 10 AD3d 84 , 90; State ex rel. Gordon v. Copeland at 160; In re J.B. at 369; see also, 1989 Op. Att. Gen. (Inf.) 126).
Family Court Act § 416 (a) provides: "[t]he court may include in the requirements for an order of support the providing of necessary shelter, food, clothing, care, medical attention, expenses of confinement, the expense of education, payment of funeral expenses, and other proper and reasonable expenses [emphasis added])."
At the initial appearance in a juvenile delinquency proceeding the statute directs that "the Court must appoint a law guardian to represent the respondent pursuant to the provisions of section two hundred forty-nine if independent legal representation is not available to such respondent" (Fam.Ct. Act § 320.2), and as relevant to the current procedural posture of this proceeding, where respondent is charged with violating the conditions of an order of probation, the statute provides, in pertinent part, that "[t]he respondent is entitled to counsel at all stages of a proceeding under this section" (Fam.Ct. Act § 360.3). Here at the time that respondent made his initial appearances upon the juvenile delinquency and the violation of probation petitions, the Court was unaware of his father's circumstances and a Law Guardian from the panel was assigned. It is recently that this Court because familiar with the father's circumstances which may make it appropriate to apportion a part of the cost of the legal services rendered by the Law Guardian to the father ( see, County Law § 722-d [court may direct payment for legal services subsequent to assignment of counsel where circumstances change]).
As Justice Buckley, later the Presiding Justice of the Appellate Division for the First Judicial Department, stated in his opinion in Colangelo v. Colangelo ( 176 Misc 2d 837), "[t]he assigned Law Guardian panel is only intended to provide public funding for children of those parents unable to afford privately retained counsel . . . [ t]o assign publicly funded legal representation to individuals with an ability to afford their own counsel makes no sense . . . [t]he creation of a Law Guardian panel did not preclude representation of minors by private counsel and relegate all children to publicly funded attorneys" ( id. at 842-843 [emphasis added]), an observation which has also been made by the Appellate Division for the Second Judicial Department ( Matter of Plovnick v. Klinger at 89).
Accordingly, it is hereby
ORDERED, that Vincente G., father of the respondent, shall submit a completed financial disclosure affidavit which shall identify his dependents, the amount of any child support he pays pursuant to court order or written agreement, and the income of any other adult who is legally responsible to support such dependents, along with copies of his most recently filed income tax return or returns and a copy of his most recent pay check stub (indicating year-to-date earnings), within twenty days of this order; and it is further
ORDERED, that at the conclusion of her representation of the respondent in this case, the assigned Law Guardian shall submit her claim for compensation which shall be recomm-ended by this Court for payment in full by the Appellate Division as approved by this Court. At such time this Court will ascertain what amount, if any, respondent's father shall pay towards the cost of the legal services provided to the respondent and direct payment of that amount to the State of New York ( see, Matter of Cheri H. supra).
This constitutes the Order of the Court.