Matter of S.A. v S.K.

[*1] Matter of S.A. v S.K. 2013 NY Slip Op 51524(U) Decided on August 26, 2013 Family Court, Bronx County Sherman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 26, 2013
Family Court, Bronx County

In the Matter of a Custody/Visitation Proceeding S.A., Petitioner,

against

S.K., Respondent.



V XXXXX/12



Ellen Winter Mendelson, Esq., Attorney for Petitioner S.A., 305 Highmount Terrace, Upper Nyack, NY 10960; Telephone 914-525-1934.

The Legal Aid Society, Juvenile Rights Practice, Bronx, New York (Lina Del Plato, Esq. of counsel) Attorney for the Children N.K, S.A., L.A., M. A., and T.C.,

900 Sheridan Avenue, Room 6 C 12, Bronx, NY 10451; Telephone: 718-579-8068.

Ira Landsman, Esq., Attorney for Respondent S.K., 930 Sheridan Avenue, #1L, Bronx, NY 10451; Telephone: 718-665-6727.

Carol R. Sherman, J.

In this visitation proceeding brought by Maternal Grandmother S. A. on December 21, 2012, Respondent S. K., adoptive mother of the child N. K. (DOB XX/XX/2009), moved for an order of the court to relieve the Legal Aid Society, Juvenile Rights Practice, and its attorney of record, Attorney for the Child (AFC), from further representation of N. in this proceeding. Respondent alleged that AFC has a conflict of interest that bars her from providing independent representation of the child N. in that she has continuously represented N.'s siblings, the three A. children, L. A. (DOB XX/XX/2002), M.A. (DOB XX/XX/2003), S. A. (DOB XX/XX/1998), and T. C. (DOB XX/XX/1996). Respondent alleged further that the AFC should be disqualified from representing N. because of her support for the following: visits between the older children [*2]and the Maternal Grandmother in spite of child M.'s alleged statement on June 6, 2013 that he does not wish to visit; continued involvement of the older children with the Maternal Grandmother; the closing of the foster home of R. T., who is the mother of Respondent and the former foster parent of the three A. children; and the AFC's potential support for the placement of the A. children with the Maternal Grandmother. In addition, Respondent's Counsel stated the AFC has a "relationship" with the Maternal Grandmother and therefore is biased and cannot provide independent representation for the child N.. The AFC opposed the motion.

It is important to provide a brief history of this case. The Legal Aid Society, Juvenile Rights Practice (JRP), was first appointed to represent the children at the time of the filing of child neglect proceedings by the Administration of Children Services (ACS) against their birth mother N. A. as follows: in 2002, JRP was assigned to represent T. C., S. A. and M. A.; in 2004, JRP was assigned to represent L. A., and, in 2009, JRP was assigned to represent the child N. K. (see Family Court Act §§ 249 [a]; 1016). In 2008, AFC assumed representation of T. C. and the three A. children from the prior JRP staff attorney.

On November 15, 2005, Maternal Grandmother filed for visitation with the A. children, S., M. and L.. In August 2010, the court directed that Maternal Grandmother have visitation between L., M., and S. (if she wished) one time per month.

The birth mother's parental rights were terminated in 2010 as to the four older siblings

legally freeing the children for adoption. The AFC has continued to represent these children in permanency hearings before the family court which provide continuing judicial review for children who are legally freed for adoption and remain in foster care (see Family Court Act § 1089 [a] [1]). Petitioner Maternal Grandmother is the kinship foster care resource for the oldest sibling T. C.. On July 19, 2013, the Maternal Grandmother filed a petition for adoption of T..

The AFC represented the child N. from her birth in 2009 until her adoption. The

child N. was placed in the foster home of Respondent at birth. In 2011, N. was legally freed for adoption and was adopted by Respondent on June 6, 2012. The court re-assigned the AFC to represent the child N. K. on December 21, 2012 at the time of the filing of Maternal Grandmother's petition for visitation.

On December 1, 2006, the foster care agency placed the A. children, M., L. and S., in the home of R. T., a non-kinship foster parent. At the termination of parental rights proceeding in 2010, the court was informed by the agency that R. T. wished to adopt all three children. On October 15, 2012, Ms. T. filed adoption petitions only as to M. and L.. S., then 14 years of age, had informed the agency that she did not wish to be adopted by Ms. T. but continued to reside in her home.[FN1] In 2013, the court was informed by the foster care agency that Ms. T. no longer wished to adopt M.. On June 6, 2013, Ms. T. returned all three children to the agency stating that she no longer wished to have the children in her home. M. and L. were placed in one foster home and S. was placed in a separate foster home. On July 11, 2013, Ms. T. withdrew her petitions to adopt M. and L.. Maternal Grandmother now has unsupervised day visits with these three children pursuant to court order.

In this visitation proceeding, Petitioner Maternal Grandmother S. A. has applied to the [*3]family court for visitation rights with the child N. K. pursuant to Domestic Relations Law § 72 (see People ex rel. Sibley v Sheppard, 54 NY2d 320 [1981]; Matter of Emanuel S. v Joseph E., 78 NY2d 178 [1991]). The court scheduled a hearing to determine whether visitation between Petitioner Maternal Grandmother and N. is in the best interests of the child. In the interim, the court has not granted visitation. The Attorney for the Respondent was assigned to represent Respondent on January 31, 2013. The trial was scheduled to commence on July 19, 2013. Attorney for Respondent filed this motion to relieve AFC on July 18, 2013, the day before the scheduled hearing on the Maternal Grandmother's petition for visitation and five and one-half months after assignment. The hearing has now been adjourned and is scheduled to commence on November 19, 2013.

Legal Analysis

In a family court proceeding, the appointment of the Attorney for the Child is made to ensure independent legal representation for the child (see Family Court Act §§ 241; 249 [a]). "Children are entitled to independent representation in Family Court proceedings because their interests are at stake and because neither the parents, the parents' counsel, nor the court can properly represent the children's interest" (Matter of Fargnoli v Faber, 105 AD2d 523, 524 [3d Dept 1984] citing Family Court Act §§ 241, 249 [a]; Borkowski v Borkowski, 90 Misc 2d 957, 959-961 [Sup Ct, Steuben County 1977] holding that "the most effective means of protecting the child's interest in our adversary system is by independent counsel for the child" [citations omitted]). Moreover, the Legislature authorized the family court "to the extent practicable and appropriate" to appoint the same attorney for the child "who has previously represented the child" emphasizing the importance of continuity in the representation of children "to help protect their interests and to help them express their wishes to the court" (Family Court Act

§§ 241; 249 [b]; Rules of the Chief Judge [22 NYCRR] § 7.2). The attorney for the child must take an active role in the proceedings (Matter of Jamie TT., 191 AD2d 132 [3d Dept 1993]).

The Rules of the Chief Judge direct that in all proceedings other than juvenile delinquency and person in need of supervision cases in which the AFC defends the child, the child's attorney "must zealously advocate the child's position" (22 NYCRR 7.2[d]) and that, in order to determine the child's position, the attorney "must consult with and advise the child to the extent of and in a manner consistent with the child's capacities" (22 NYCRR 7.2[d] [1]). The rule also requires the following:

"(3) When the attorney for the child is convinced either that the

child lacks the capacity for knowing, voluntary and considered

judgment, or that following the child's wishes is likely to result

in a substantial risk of imminent, serious harm to the child, the

attorney for the child would be justified in advocating a position

that is contrary to the child's wishes. In these circumstances, the

attorney for the child must inform the court of the child's articulated

wishes if the child wants the attorney to do so, notwithstanding the

attorney's position" (22 NYCRR 7.2 [d] [3]).

The appointment creates an attorney-client relationship that makes the attorney for the child subject to the same ethical requirements applicable to all lawyers, "including but not [*4]limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in litigation" (22 NYCRR 7.2 [b]). These ethical requirements are rooted in an attorney's fundamental duty "to fully protect client confidences and secrets" and these rules "offer a clear test which is easy to administer" (Solow v Grace & Co., 83 NY2d 303, 308 [1994]). In addition, an attorney "must avoid not only the fact, but even the appearance, of representing conflicting interests" (Cardinale v Golinello, 43 NY2d 288 [1977]). "[T]he lawyer may not place himself in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional" (Matter of Kelly, 23 NY2d 368 [1968]).

Whether to disqualify an attorney for the child is a matter that lies within the discretion of the family court (Matter of Marvin Q., 45 AD3d 852, 853 [2d Dept 2007] [internal citations omitted], appeal dismissed 10 NY3d 927 [2008]). "[D]isqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties' substantive rights, thus requiring any restrictions to be carefully scrutinized" (Matter of Madris v Oliviera, 97 AD3d 823, 824 [2d Dept 2012] [internal citations omitted]). The burden of proof is on the moving party who must make "a clear showing that disqualification is warranted" (Olmoz v Town of Fishkill, 258AD2d 447 [2d Dept 1999]). The court must consider the evidence in the light most favorable to the non-moving party (Matter of Madris v Oliviera, 97 AD3d at 825). The courts have recognized that "motions to disqualify are frequently used as an offensive tactic, inflicting hardship on the current client and delay upon the courts" (Solow v Grace & Co., 83 NY2d at 310).

To prevail in the instant motion, Respondent must present clear evidence of an actual or potential conflict of interest or demonstrate a failure to diligently represent the child N. on the part of AFC and the JRP in this proceeding (Matter of Taylor G., 270 AD2d 259, 260 [2d Dept 2000] citing Matter of Rosenberg v Rosenberg, 261 AD2d 623, 624 [2d Dept 1999]; Matter of Petkovsek v Snyder, 251 AD2d 1087 [4th Dept 1998]; Matter of Zirkind v Zirkind, 218 AD2d 745, 746 [2d Dept 1995]).

In this visitation proceeding, Maternal Grandmother has requested that the court grant her

visitation rights with the adopted child, N., pursuant to the court's equitable authority under Domestic Relations Law § 72 that affords grandparents the right to bring a special proceeding or habeas corpus to obtain visitation rights in respect to certain infant grandchildren. In 1975, the legislature amended Domestic Relations Law § 72 "to allow standing not only where a parent had died, but also where circumstances show that conditions exist which equity would see fit to intervene' " (Matter of Emanuel S., 78 NY2d at 181 quoting Domestic Relations Law § 72 [1]). The fact that a child has been freed for adoption does not negate a grandparent's standing to seek visitation with the grandchild (see People ex rel. Sibley v Sheppard, 54 NY2d 320 [1981]; Matter of Netfa P.,115 AD2d 390 [4th Dept 1985]; Matter of Loretta D. v Commissioner of Social Servs. of City of NY, 177 AD2d 573 [2d Dept 1991]). "[T]he court must make a threshold determination that the grandparent has established the right to be heard' . . . Only after standing has been established is it necessary or permissible to determine if visitation is in the best interest of the grandchild' " (Karr v Black, 55 AD3d 82, 85 [1st Dept 2008] quoting Matter of Emanuel S., 78 NY2d at 181). The grandparents must establish a "sufficient existing relationship with their grandchild or in cases where that has been frustrated by the parents, a sufficient effort to establish [*5]one, so that the court perceives it is one deserving the court's intervention" (Matter of Emanuel S., 78 NY2dat 182; Matter of Sherman v Hughes, 32 AD3d 959, 960 [2d Dept 2006]). The presence of "much conflict" between the petitioning grandparent and the adoptive parents, by itself, does not defeat the grandparent's right to visitation (Matter of Layton v Foster, 95 AD2d 77, 78 [3d Dept 1983]). Ultimately, although section 72 of the Domestic Relations Law "does not guarantee grandparents an absolute or automatic right of visitation [Lo Presti v Lo Presti, 40 NY2d 522, 526] it favors such access when visitation would contribute to the overarching goal of promoting the child's best interest" (Matter of Layton v Foster, 95 AD2d at 78).

Respondent alleged that in this proceeding AFC and JRP violated the Code of Professional Responsibility DR 5-105 (22 NYCRR 1200.24), which is no longer in effect. The Rules of Professional Conduct (22 NYCRR 1200.0) replaced the Code of Professional Responsibility (22 NYCRR 1200.24) effective April 1, 2009, and the current rule governing conflicts of interest with current clients is set forth at Rule 1.7 as follows:

"Rule 1.7 Conflict of interest: current clients

(a) Except as provided in paragraph (b), a lawyer shall notrepresent a client if a reasonable lawyer would concludethat either:

(1) the representation will involve the lawyer in representing

differing interests; or

(2) there is a significant risk that the lawyer's professionaljudgement on behalf of client will be adversely affected by thelawyer's own financial, business, property or other personalinterests.

(b) Notwithstanding the existence of a concurrent conflict of interestunder paragraph (a) a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able toprovide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by

one client against another client represented by the lawyer in thesame litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing."Rule 1.0 (f) defines "differing interests" to "include every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest." The children T., M., L., and S. are in very different circumstances from the child N.. N. has been adopted by Respondent, the only parent this child has ever known. However, these different circumstances are not equivalent to "differing interests."

The courts, in cases cited by Respondent, have found concurrent representation of [*6]multiple clients by an attorney to be impermissible where there is an actual or potential conflict of interest based on the presence of identified "adverse" interests that divide the loyalties of the attorney or cause the attorney to aid one client at the expense of the other or otherwise impede a client's independent representation (e.g. Raymond v Raymond, 174 Misc 2d 158, 161 [Fam Ct, Albany County 1997] attorney represented a grandmother requesting visitation with her five year old granddaughter and also represented the grandfather in criminal court in which he was charged with sexual abuse of the same child. The court held that the attorney, by representing both grandparents, even though in different proceedings, clearly had a conflict because the "strategy chosen to aid one client may adversely affect the other"; Matter of Kelly, 23 NY2d 368 [1968] the court found an impermissible conflict where a law firm represented an insurance company while one attorney of the firm was a claims adjuster for that insurance company and the court remanded the case to the trial court to determine whether the conflict was disclosed and the affected parties gave prior consent to continued representation by the law firm; Green v Green, 47 NY2d 447 [1979] the court held that because a law firm had "strong interests on both sides of the litigation" it was a "reasonable probability" that confidential information would be disclosed or used to aid one client and disadvantage the other warranting disqualification of the firm from representation of the plaintiff). In sum, there must be a showing that the attorney's representation of a client is "materially adverse" to that of another client to warrant a non-discretionary disqualification pursuant to the ethical rules (Anonymous v Anonymous, 251 AD2d 241 [1st Dept 1998] citing Matter of H. Children, 160 Misc 2d 298, 300-301 [Fam Ct, Kings County 1994]; see also Field v Moore, 189 AD 709, 711 [1st Dept 1919] holding that "[i]t is only where the nature of his work or advice is such that he would find himself in the equivocal, anomalous position of aiding one [client] as against the other, or of being compelled to choose between them, that the dual service would be improper. In other words, there must be a conflict of interest before it becomes unethical for a lawyer to represent both").

In applying these case law principles in this matter, Respondent must show that the interests of the child N. and her siblings are divergent in this proceeding and these "differing interests" adversely affect the judgment or the loyalty of AFC in her representation of the child N.. Respondent asserted that AFC's prior and current representation of the A. children, S., M., and L., and T.C. in permanency hearings pursuant to Family Court Act § 1089 (a) (1) and in a prior visitation proceeding filed by Maternal Grandmother as to the A. children impairs her ability to represent N. in this proceeding. However, Respondent has presented no evidence to support her claim. The issues in the permanency hearings in which the A. children are subject children are not related to and certainly are not adverse to the issues in this case and the findings and determinations made in permanency hearings as to them have no bearing on the instant visitation proceeding.

In addition, Maternal Grandmother's petition for visitation with the three A. children is unrelated to this proceeding. The allegation that AFC's support of Maternal Grandmother's continued visitation with the three A. children indicates that she is biased is also without merit. AFC's advocacy of this position did not reflect "personal and unreasoned prejudging of the issues" (Matter of Carballeira v Shumway, 273 AD2d 753, 756 [3d Dept 2000], lv denied 95 NY2d 764 [2000]). In 2010, the court directed supervised visits once a month between the Maternal Grandmother and the A. children. After Ms. T. returned the children to the Agency and [*7]adoption by her was not a possibility, the court ordered unsupervised day visits between the Maternal Grandmother and the three children.

Further, the rights of the A. children are not in any way affected by the outcome of this proceeding and it is abundantly clear that the A. children have no stake or interest in the outcome of this visitation proceeding. Nor do they have a conflicting personal interest that is antagonistic to the child N.. The A. children have an independent right to have visitation with their sibling N. to the extent the court determines it is in their best interests and that of N.'s (see Domestic Relations Law § 71; Matter of Keenan R. v Julie L., 38 AD3d 435 [1st Dept 2007]; Matter of Lovell Raeshawn McC., 308 AD2d 589 [2d Dept 2003]). The visitation rights of siblings survives the adoption of N. and any adoption of the A. children (see Matter of Hatch v Cortland County Dept. of Social Servs., 199 AD2d 765 [3d Dept 1993] holding that Domestic Relations Law § 71 authorizes the court to grant post-adoption visitation rights to siblings). Whether the A. children ultimately continue to reside with or are adopted by their current foster parents or whether they reside with or are adopted by their Maternal Grandmother, their right to seek visits with N. is not in any way impacted. Further, whether the court grants or denies the Maternal Grandmother's petition for visitation with N. has no effect on the rights of the A. children to visitation with N.. In fact, Respondent has stated that she has no objection to the A. children visiting with N.. Thus, whether or not the court determines pursuant to Family Court Act § 1089 (d) (2) (viii) (B) ( I ) that Maternal Grandmother should be considered as an adoptive resource for the A. children does not create an actual or a potential conflict of interest between N. and her siblings. No "differing interest" exists between or among the children, nor are the rights of the children to visitation with each other implicated by the court's decision in the Maternal Grandmother's visitation proceeding.

Accordingly, Respondent has failed to establish that the A. children and the child N. have "differing interests" that divide the loyalties of AFC or diminish her ability to represent the child N. independently. Further, Respondent has failed to meet her burden of proof as to the presence of an actual or potential conflict of interest in the simultaneous representation by AFC of the A. children and the child N..

Nor has there been any showing of a violation of any other of the ethical rules. Respondent has not shown that JRP and AFC failed to preserve the children's confidences or that JRP, since 2002, and AFC, since 2008 for the A. children and from March 12, 2009 to June 6, 2012 and then from December 21, 2012 to the present for the child N., has not represented these children zealously (cf. Matter of H. Children, 160 Misc 2d 298 [Fam Ct, Kings County 1994]). Moreover, during the many years of AFC's representation of N., Respondent has never raised an objection until the filing of the instant motion on July 18, 2013, on the eve of the trial as to Maternal Grandmother's visitation rights. In fact, AFC supported N.'s continued placement with Respondent and her adoption by Respondent. The delay in asserting her objection to AFC's representation of N. and her failure to show any "differing interest" that was adverse or antagonistic to N., causes the court to question whether this motion was motivated by substantive issues or was filed as a "litigation tactic" to postpone the final determination by the court as to the visitation rights of Maternal Grandmother (see Matter of T'Challa D., 196 Misc 2d 636, 645 [Fam Ct, Kings County 2003]).

The essence of Respondent's motion is her personal objection to the continued [*8]representation of N. by the AFC. However, a parent's objection to the attorney for the child is not a basis to relieve the attorney (Matter of Kristi L.T. v Andrew R.V., 48 AD3d 1202, 1206 [4th Dept 2008], lv denied 10 NY3d 716 [2008], reversing the family court's failure to reappoint the attorney for the child in a custody proceeding in a case in which the attorney had represented the child in two prior matters based on the mother's objection to the attorney holding that "[t]he record establishes that the prior Law Guardian was available, and we conclude that he should have been reappointed" citing Family Court Act § 249 [b] which provides that the court "shall, to the extent practicable and appropriate, appoint the same attorney who has previously represented the child"). Moreover, only grounds that would justify disqualification of any lawyer warrant the disqualification of an attorney for the child (see Matter of Stien v Stien, 130 Misc 2d 609, 616 [Fam Ct, Westchester County 1985] [internal citations omitted] denying a motion to disqualify the attorney for the child where the parent claimed bias and incompetence finding that the parent's counsel sought to hold the lawyer answerable to his standards and lawyers who represent children "cannot be required to satisfy standards of performance laid down for her by other counsel in the case, whose motives are dictated by the obligation to represent another party, with his or her own interests, which may or may not coincide with the interests of the child").

Respondent's claim that the Attorney for the Child is biased and has a "relationship" with Maternal Grandmother is also without merit. The AFC has known the Maternal Grandmother as a party to this long ongoing litigation. She has also known Respondent as a foster mother and adoptive mother of N.. She has also known Respondent's mother, R. T., as the former foster mother of the three A. children. Respondent has presented no evidence that AFC's "relationship" with Maternal Grandmother was and is anything but a professional one that has developed over the course of her many years of representing the children in these proceedings. Contrary to Respondent's claims that AFC favors Maternal Grandmother, the AFC opposed an interim order granting visitation to Maternal Grandmother in this proceeding.

It is not clear at this time what the ultimate permanency plan will be for the children S., M. and L. nor has the Attorney for the Children advocated a particular permanency plan. However, even if AFC had formulated a position on the plan for the A. children, she has acted appropriately without bias " it is entirely appropriate, indeed expected, that a Law Guardian form an opinion about what action, if any, would be in a child's best interests' " (Matter of Carballeira v Shumway, 273 AD2d at 756 quoting Besharov, Practice Commentaries, McKinney's Cons Law of NY, Book 29A, Family Ct Act, § 241, at 218-219; see also Matter of Apel, 96 Misc 2d 839, 844 [Fam Ct, Ulster County 1978])in an Article 10 proceeding of five years duration in which the attorney for the children has provided continuous representation "formulation of an opinion and the taking of a position in support of continued placement" by the attorney was not evidence of bias and was not inconsistent with his proper role in the proceeding).

Having thoroughly reviewed the record in this matter and having been presented with no specific facts by Respondent, the court finds no credible basis for Respondent's claims of a conflict of interest or potential conflict of interest on the part of AFC and the JRP in the representation of N. as well as the A. children and T. C. Nor has Respondent presented any evidence that either AFC or the JRP has failed to diligently represent the child N.. Thus, she has not met her burden of proof and the instant motion must be denied (see Matter of King v King, [*9]266 AD2d 546, 547 [2d Dept 1999]; Matter of Rosenberg v Rosenberg, 261 AD2d 623, 624 [2d Dept 1999]; Matter of Petkovsek v Snyder, 251 AD2d 1087, 1088 [4th Dept 1998]; Matter of Maurer v Maurer, 243 AD2d 989 [3d Dept 1997]; Matter of Smith v Smith, 241 AD2d 980[4th Dept 1997]; Matter of Zirkind v Zirkind, 218 AD2d 745, 746 [2d Dept 1995]).

Accordingly, the motion to disqualify AFC from further representation of the child N. in this matter is denied.

This constitutes the decision and order of the court.

Notify counsel and the parties.

E N T E R:

Dated: Bronx, New York

August 26, 2013___________________________

Carol R. Sherman, Judge

Family Court, Bronx County Footnotes

Footnote 1: Pursuant to Domestic Relations Law § 111 (1) (a) the adoptive child's consent to adoption is required if the child is over 14 years of age unless the court dispenses with this requirement.