Opinion
10-14-2011
In the Matter of Samy F., A Person Alleged to be a Juvenile Delinquent, Respondent.
Michael Cardozo, Corporation Counsel (Rachel Glantz of counsel), New York City, for Presentment Agency. Terrence J. Worms, Flushing, attorney for respondent.
Michael Cardozo, Corporation Counsel (Rachel Glantz of counsel), New York City, for Presentment Agency.
Terrence J. Worms, Flushing, attorney for respondent.
John M. Hunt, J.
By petition filed pursuant to Family Court Act §310.1 (1) on August 10, 2011 respondent, Samy F., is alleged to have committed acts which, were he an adult, would constitute the crimes of Obstructing Governmental Administration in the Second Degree and Resisting Arrest.
Respondent and his mother appeared before the Court for the initial appearance upon the petition on August 10, 2011 (see, Fam. Ct. Act §320.1). Respondent was advised of the charges and was provided with a copy of the juvenile delinquency petition (Fam. Ct. Act §320.4 [1]).
The Court then proceeded to ascertain whether independent legal representation was available to the respondent or whether an attorney should be appointed to represent respondent pursuant to Family Court Act §249 (Fam. Ct. Act §320.2 [2]).
According to the respondent's mother she has owned a private home located at 25-53 89th Street in Jackson Heights, Queens County, since 1989. According to Ms. F., she resides in "the basement" of that house along with her two sons and her husband, and the upstairs portion of the house is occupied by a tenant who pays rent in the amount of $1,500 per month. Ms. F. further stated that she "is unemployed", that her husband "receives disability" benefits of an unknown amount due to his physical incapacity, and that the family owns a motor vehicle. It is also unclear whether the mother of the respondent received unemployment insurance benefits.
The Court has not been informed of the identity of respondent's father. The Court is merely aware that respondent's mother resides "with her husband".
Based upon the limited information provided to the Court, the Court was unable to concludethat respondent's family was indigent and that the respondent qualified for the appointmentof counsel at public expense pursuant to Family Court Act §249. Therefore, the Court adjourned the conclusion of the initial appearance until August 24, 2011 to allow respondent's mother to retain an attorney to represent him (Fam. Ct. Act §320.2 [1], [3]).The Court advised respondent's mother that she should bring documents establishing her family's income and assets on the adjournment date. On August 24, 2011 respondent and his mother again appeared but no attorney appeared for the respondent. Respondent's mother claimed that she had attempted to obtain a home equity loan to finance the cost of counsel for her son, but that the bank had denied her application for the loan. Although the Court was unable to determine based upon the information available that respondent's mother is indigent and unable to afford counsel to represent the respondent, given that two weeks had elapsed since the filing of the petition, the Court appointed a member of the Family Court Attorneys for Children and Assigned Counsel Plan to serve as the attorney for the respondent for the duration of the proceedings. Thereafter, based upon the representation of counsel that the parties were considering the informal resolution of the case through the Department of Probation adjustment process (Fam. Ct. Act §308.1; 22 NYCRR§§205.22; 205.23; Matter of Aaron J., 80 NY2d 402, 406), the Court further adjourned the conclusion of the initial appearance until September 1, 2011. Respondent, his mother, and the attorneys for the parties appeared on September 1, 2011.
If the husband of the respondent's mother is respondent's father, it will be necessary to
clarify whether the respondent and his brother are receiving derivative social security disability benefits due to the father's disability (e.g., Matter of Graby v. Graby, 87 NY2d 605, 611).
At that time the Court was informed that efforts at adjustment had failed, and the initial appearance was then continued. Respondent entered a denial to the charges, he was released to the custody of his mother, and the case was scheduled for a fact-findinghearing on October 18, 2011 (Fam. Ct. Act §§320.4 [2]). In addition, as there had been no determination that respondent's mother is indigent and is unable to afford the expense of providing counsel for her son, the Court informed respondent's mother that she and any other person legally responsible for respondent's support would be required to reimburse the State of New York for the cost of the representation by the attorney who had been appointed by the Court.
The representation ofan accused juvenile delinquent by counsel is an indispensable elementof due process (Fam. Ct. Act §§241; 320.3; In re Gault, 387 US 1 [1967]; In re C.S., 115 Ohio St3d 267, 277, 874 NE2d 1177, 1187 [Sup Ct 2007]). Under New York lawa parent is ordinarily responsible for thesupport of his or her children until they reach the age of 21 (Fam. Ct. Act §413 [1]; Social Services Law §101 [1]; Bani-Esraili v. Lerman, 6 NY2d 807, 808;Matter of Miller v. Miller, 299 AD2d 463, 464; Matter of Calvello v. Calvello, 20 AD3d 525, 527; Matter of Cancilla v. Cancilla, 22 AD3d 490, 491; Cimons v. Cimons, 53 AD3d 125, 134), and a parent's obligation to provide child support has been construed to include the expense of providing counsel for a child who is the subject of a proceeding before the Family Court (Fam. Ct. Act §416; Pascazi v. Pascazi, 65 AD3d 1202, 1203, lv denied 13 NY3d 714; Matter of Plovnick v. Klinger, 10 AD3d 84, 89-90; Matter of Cheri H., 121 Misc 2d 973, 974; People v. Kearns, 189 Misc 2d 283, 288; Matter of Giles C. v. Janet L., 31 Misc 3d 1245[A], 2011 NY Slip Op 5114[U], at *1; see also, In re W.B.J., 966 P2d 295, 298-299 [Utah Sup Ct 1998]; In re J.B., 157 Vt 668, 669, 608 A2d 368, 369 [Sup Ct 1991]; State ex rel. Gordon v. Copeland, 803 SW2d 153, 160 [Mo. Ct. App 1991]; Opinion of the Justices, 121 NH 531, 535, 431 A2d 144, 148 [Sup Ct 1981]).
Family Court Act §416 provides, in pertinent part, that "[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" (Fam. Ct. Act §416 [a] [italics added]).
While New York has enacted a comprehensive system to provide counsel at public expense for indigent children and adults who appear before the Family Court, "[t]he assigned counsel Law Guardian panel is only intended to provide public funding for children of those parents unable to afford privately retained counsel" (Colangelo v. Colangelo, 176 Misc 2d 837, 842). The state funded Attorneys for Children (i.e., Law Guardian) program does "not preclude [the] representation of minors by private counsel and relegate all children to publicly funded attorneys "(id. at 843), and "[t]o provide publicly funded legal representation to individuals with an ability to afford their own counsel makes no sense" (id. at 842; see also, Plovnick at 89;Pascazi at 1203).
As a matter of public policy, the Family Court Act mandates the "swift and certain" adjudication of juvenile delinquencycharges (Matter of Frank C., 70 NY2d 408, 413; Matter of Randy K., 77 NY2d 398, 402; Matter of Benjamin L., 92 NY2d 660, 665; Matter of Bernard T., 92 NY2d 738, 745). A parent's reluctance or outright refusal to hire an attorney for a child charged with juvenile delinquency cannot operate as a waiver of counsel (Matter of Cheri H. at 974; Gordon v. Copeland at 159), or be permitted to impair the child's right to a speedy resolution of the proceeding (In re J.B., 157 Vt 668, 669, 608 A2d 368, 369 [Sup Ct 1991]; In re W.B.J. at 299).
New York's juvenile delinquency statute contains a presumption against the waiver of counsel by an accused delinquent (Fam. Ct. Act §249-a; e.g., Matter of Lawrence S., 29 NY2d 206, 208; Matter of Dillon Z., 44 AD3d 1192, 1193).
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Accordingly, as the record does not establish that respondent's mother is indigent and unable to afford the expense of retaining the services of an attorney for her son, she is responsible for the cost of the legal services provided by the court appointed attorney. At the conclusion of this proceeding, the attorney for respondent shall submit his claim for compensation to the Court, and the Court will determine the liability of the respondent's mother for the cost of the representation. Respondent's mother will be provided with an opportunity to submit updated financial documentation prior to any final determination by the Court.
This constitutes the order of the Court.
ENTER: