Matter of Malik L.

[*1] Matter of Malik L. 2009 NY Slip Op 50370(U) [22 Misc 3d 1130(A)] Decided on March 4, 2009 Family Court, Queens County Hunt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 4, 2009
Family Court, Queens County

In the Matter of Malik L., A Person Alleged to be a Juvenile Delinquent, Respondent.



D-2696/09



Michael A. Cardozo, Corporation Counsel (Ralph M.C. Sabatino of counsel), New York City, for Presentment Agency. The Legal Aid Society (Tamara Steckler and Lisa E. Tuntigian), New York City, Law Guardian for Malik L.

John M. Hunt, J.

The Legal Aid Society has moved for an order to be relieved of its assignment as Law Guardian for the respondent in this juvenile delinquency proceeding. For the reasons which follow, the motion is denied.

On February 18, 2009 the Presentment Agency filed a petition against Malik L. pursuant to Family Court Act §310.1 alleging that he is a juvenile delinquent as defined by Family Court Act §301.2 (1). Respondent and his aunt appeared on February 18, 2009 and the initial appearance upon the petition was conducted before a Family Court Judge on that date (see, Fam. Ct. Act §320.1). At the initial appearance the Juvenile Rights Practice of the Legal Aid Society was appointed as respondent's Law Guardian (Fam. Ct. Act §§249 [a], 320.2 [2]), the Court directed that respondent be detained by the Department of Juvenile Justice pending further proceedings upon the petition (Fam. Ct. Act §320.5 [3]), and a probable cause hearing was scheduled before this Court for February 23, 2009 (Fam. Ct. Act §320.4 [2] [c]).

On February 23rd the respondent and his Law Guardian were present but no parent or other adult family member appeared on his behalf. The Court was advised that respondent's mother was undergoing medical treatment and she could not be present in court on that day. The respondent then waived his right to a probable cause hearing (Fam. Ct. Act §325.1 [4]; see, Matter of Brion H., 161 AD2d 832, 833; Matter of William U., 285 AD2d 512, 513), and the case was adjourned until February 25, 2005. On that date, respondent's mother, Larina Washington, appeared and the case was adjourned until March 2, 2009 for the commencement of [*2]

the fact-finding hearing as required by the provisions of the statute (see, Fam. Ct. Act §340.1 [1]). The fact-finding hearing commenced before the Court on March 2, 2009 and the testimony of Police Officer LoMangino was received. The hearing was then continued until March 4, 2009 for the conclusion of the police officer's testimony and the presentation of other evidence.

On March 4, 2009 the respondent, his mother, the Law Guardian and the Presentment Agency appeared and the Court proceeded to address the issues raised in the order to show cause. Respondent's mother, who is employed as a traffic enforcement agent by the New York City Police Department, stated that she had issues relating to the representation being provided to her son by the Legal Aid Society, although she was not forthcoming with specific details. The mother did indicate that she had issues apparently relating to her son's arrest which she believes was accomplished by the use of excessive force by police officers as well as with the pace at which the case is proceeding. When the mother raised these concerns, the Court explained that the short time frame for bringing the case to trial was required by the speedy trial provisions of the statute. Respondent's mother then stated that the Law Guardian and a member of the non-legal staff of the Legal Aid Society "threatened her son" in the Department of Juvenile Justice detention facility of the courthouse, a claim which was denied by both the Law Guardian and the respondent himself. Nevertheless, respondent's mother stated that she "wants new people" to represent her son and that she had telephoned "1-800-LAWYERS" to find an attorney for her son, and had spoken to an unidentified secretary in an unidentified law office who allegedly informed her that an attorney whose name she could not recall could not be present in court today. Finally, with the permission of the Law Guardian, the Court inquired of the respondent whether he was threatened by any employee of the Legal Aid Society and he stated that he had not been threatened. The Court then inquired whether the respondent wished for the Law Guardian to continue representing him and he indicated that he did.

Given the allegations made by the respondent's mother, her confrontational position towards the Law Guardian's office and her general uncooperativeness, the concerns raised by the Legal Aid Society are understandable. However, upon the inquiry made in open court, there is no factual or legal ground which would require a mid-trial disqualification of respondent's Law Guardian.

An accused juvenile delinquent has both constitutional and statutory rights to be represented by counsel as well as the right to have counsel appointed if the child and his parents are indigent (In re Gault, 387 US 1, 41 [1967]; In re D., 27 NY2d 90, 93-94 [1970]; People ex rel. Silbert v. Cohen, 29 NY2d 12, 15 [1971]). Where the Court appoints a Law Guardian for an accused delinquent or any child who is the subject of a proceeding before the Family Court, an attorney-client relationship is created between the juvenile, the attorney and her office (Matter of Bentley v. Bentley, 86 AD2d 926, 927 [1982]; Matter of Karl S., 118 AD2d 1002, 1003 [1986]; Matter of New York City Department of Social Services [Samuel H.] v. Luz S., 208 AD 746, 747 [1994]; Matter of Angelina A., 211 AD2d 951, 953 [1995], lv. denied 95 NY2d 764 [1995]; Matter of Rebecca B., 227 AD2d 315 [1996]; Campolongo v. Campolongo [Weisberg], 2 AD3d 476, 476-477 [2003]; Matter of Marvin Q., 45 AD2d 852, 853 [2007], lv. dismissed 10 NY3d [*3]

927 [2008]; Matter of Cervera v. Bressler, 50 AD3d 837, 840 [2008]).

A Law Guardian who is appointed in Family Court proceedings is the attorney for the child and not the child's parents (Matter of Fargnoli v. Faber, 105 AD2d 523, 524 [1984], app.dismissed 65 NY2d 631 [1985]; Matter of Jamie EE., 249 AD2d 603, 604-605 [1998]; Matter of Davis v. Davis, 269 AD2d 82, 85 [2000]; Drummond v. Drummond, 291 AD2d 368, 369[2002]). This is true even where, for example, the Court must compel financially able but recalcitrant parents to retain counsel for an allegedly delinquent child, or where the Court must compel such parents to reimburse the public treasury for services rendered by a Law Guardian assigned by the Court (see, Matter of Cheri H., 121 Misc 2d 973, 975 [1983]; Matter of Juan G.,21 Misc 3d 1103U, 2008 NY Slip Op 51937U).

While the parent of an accused juvenile delinquent fulfills a role as an advisor to the child by reason of being the child's natural guardian (see, Fam. Ct. Act §§305.2 [post-arrest questioning], 320.3, 320.4 [initial appearance], 321.3 [acceptance of an admission by court], 341.2 [parent's presence at hearings]), it is the Law Guardian who acts as the child's attorney with all of the inherent responsibilities created by that relationship (e.g., Matter of Jamie TT., 191 AD2d 132, 136-137 [1993]; 22 NYCRR §1200.19 (DR 4-10) [preservation of client's confidences]; §1200.26 (DR 5-107) [avoiding influence of others than client]; §1200.32 (DR 7-101) [representing a client zealously]).

In this particular case there is no allegation that a dispute has arisen between the respondent and the court-appointed Law Guardian. While such a conflict may warrant the replacement of the Law Guardian (Matter of Elianne M., 196 AD2d 439, 440 [1993]; Matter of Cassandra R., 269 AD2d 862, 863 [2000]; Matter of Albanese v. Lee, 272 AD2d 81 [2000]), the asserted conflict in this instance appears to involve the mother of the respondent and the child'sLaw Guardian. Indeed, the respondent specifically denied any conflict with his Law Guardian and indicated his desire that she continue representing him. In the absence of a demonstrable conflict between the Law Guardian and the juvenile who is her client, the child's mother has no standing to seek removal of the Law Guardian.[FN1]

This is not a situation where the parent of the accused juvenile delinquent is seeking to vindicate the child's right to be represented by counsel of the child's own choosing (Fam. Ct. Act §§249, 320.3), or where the parent is acting on her child's behalf in an attempt to replace a Law Guardian who is embroiled in an irreconcilable conflict with the child (e.g., Matter of Zirkind v. Zirkind, 218 AD2d 745, 746 [1995]; Matter of Maurer v. Maurer, 243 AD2d 989 [1997]; Matter [*4]of Petkovsek v. Snyder, 251 AD2d 1087, 1088 [1998], lv. denied 92 NY2d 942 [1998]). Instead, this application appears to be motivated by the non-party mother's desire to replace the Law Guardian with someone whom she believes she will have a better relationship with or someone who will advance interests which are unrelated to the proceeding before this

Court. This is an insufficient basis to act upon the mother's request to replace the Law

Guardian which is opposed by the child himself.

Accordingly, there is no basis to grant the relief requested in the order to show cause and this Court will not entertain the application further. In the event that respondent's Law Guardian believes that the respondent's mother is actively interfering with her legal representation of the child, the proper course is for the Law Guardian to move for the appointment of a Guardian ad Litem to act as the adult-advisor to the child in place of the mother.

This constitutes the order of the Court.

ENTER:

_______________________________

John M. Hunt

Judge of the Family Court

Dated:Jamaica, New York

March 4, 2009

Footnotes

Footnote 1:With respect to counsel who are assigned to represent adult litigants before the Family Court, it should be noted that courts have uniformly found that the right to have counsel assigned at public expense does not include the right to have a particular attorney assigned (Matter of William D., 198 AD2d 40, 40-41 [1993], lv. denied 83 NY2d 756 [1994]; Matter of Child Welfare Administration [John R.] v. Jennifer A., 218 AD2d 694, 696 [1995], lv. denied 87 NY2d 804 [1995]; Matter of Ashley D., 268 AD2d 803, 805 [2000], lv. denied 94 NY2d 763 [2000]).