Conflict of Role of Attorney for Child in Paternity Estoppel Cases

With Normal Rules and Standards Governing Attorneys for Children

 

by

 

George E. Reed, Jr.

 

 


Important Note: This excerpt from a brief does not necessarily represent the position of the Committee on Children and the Law.  Like all briefs, it was written to present a position favorable to the represented party, in this case a putative father appealing from an order establishing paternity by estoppel, not to present the views of the attorney.  It is being presented in this program book as critique of the conflict between (a) the role the courts not only permit but expect the attorney for the child to assume, and (b) the role traditionally  mandated by the applicable rule of the Chief Judge, Rules of Professional Conduct, case law and standards, none specifically addressing the area of paternity estoppel.  The case is the matter of Commissioner of Social Services o/b/o Elizabeth S. V. Julio J., which at the time this book is going to press was awaiting decision by the Appellate Division, First Department.

 

 

 


AN ATTORNEY FOR A CHILD

OLD ENOUGH TO UNDERSTAND A CASE

MUST INFORM THE CHILD OF THE CASE

AND BE DIRECTED BY THE CHILD'S

INFORMED EXPRESSED WISHES, AND

APPOINTMENT OF SUCH AN ATTORNEY

WITH THE EXPECTATION THAT HE

WILL CONCEAL THE FACTS OF THE

CASE FROM HIS CLIENT IS IMPERMISSIBLE

 

 

 

                        While the law of paternity estoppel has remained static, the science of paternity determination has advanced to virtually 100% reliability.  Another development of significance to such proceedings during this time has been the change in the role of the Law Guardian (Attorney for the Child). 

 

                        The earlier view of the Law Guardian was as a sort of guardian ad litem, paternalistically protecting an innocent child.  That is still the view as to babies and toddlers, a concept becoming much more nuanced in the next older years.  There is no ambiguity by the time a child is eight years old (unless she has the mind of a much younger child, which is not alleged here).  However, the old view is of concern because there is a tendency among attorneys for children assigned in paternity estoppel cases (encouraged by the courts) to expand the concept from children who are not able to understand what is going on to children who might be upset by knowing the truth of what is going on.  In fact, an attorney for a child would probably be terrified of losing his job or being expelled from the panel for telling his client the full facts of a paternity estoppel case (absent such special circumstances as that the mother or putative father assures the attorney that the child already knows that paternity is at issue).  Given the dilemma facing such attorneys, it is remarkable that no case could be found addressing the issue.       

 

                        The old view of Law Guardians has continued until quite recently.  Even in the 2006 decision of Shondel J. v. Mark D., 7 N.Y.3d 320, 325, the Court referred to what the Law Guardian "reported" to the court, namely, that the putative father "had acted as the father of the child, who in turn considered him her father."  In Darlene L.-B. v. Claudio B., 27 A.D.3d 564, 564 (2d Dep't 2006), the Court directed the appointment of a Law Guardian "to represent the best interests of the child", and though the Court shortened this reference in the next paragraph to appointing a Law Guardian "to represent the child", there is no reason to believe that the Court was revising the original directive.                     

 

                        Since the rendering of these decisions, the law governing attorneys for children has dramatically changed.  Where "the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child." 22 N.Y.C.R.R. §7.2(d)(2);  Delaney v. Galeano, 50 A.D.3d 1035, 1036 (2d Dep't 2008). 

 

                        Rule 7.2 of the Rules of the Chief Judge, 22 N.Y.C.R.R. §7.2, which the Court recognized in Delaney as being determinative, reads in full as follows:

 

                        §7.2  Function of the attorney for the child.

           

(a) As used in this part, "attorney for the child" means a law guardian appointed by the family court pursuant to section 249 of the Family Court Act, or by the supreme court or a surrogate's court in a proceeding over which the family court might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto.

 

(b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation.

           

(c) In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child.

           

(d) In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child's position.

 

(1) In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances.

 

(2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be di­rected by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney's view would best promote the child's interests.

 

(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.

 

                        No claim has been made in these proceedings, let alone proven, that the subject child is not capable of knowing, voluntary and considered judgment;  no claim has been made that she was anything less than a normally intelligent eight-year-old girl.  A normal child of that age is in third grade and handling work far more difficult than understanding the issues of a paternity case. 

 

                        The assignment of the Attorney for the Child (or in this case an institutional Attorney for the Child) with the apparent expectation that he would conceal the truth from the child is totally contrary to the requirements of Rule 7.2.  The Attorney for the Child cannot "zealously advocate the child's position", because he cannot find out what the child's position is.  One cannot find out someone's position on an issue without telling the person what the issue is.

 

                        Neither rule 7.2, nor any of the other currently effective authority cited herein, makes an exception where the Attorney for the Child or the court determines that it would be upsetting to the child to be told the truth.  Moreover, no such authority provides for the Attorney for the Child to assume that he knows what the child's position would be if the child were told the truth, which is almost certainly the basis on which the Attorney for the Child proceeded here.  Vague assertions (or findings) that it would be detrimental for the child to find out the truth of her paternity are no substitute for the requirement that she state her position to her attorney (with full knowledge of the facts). 

 

                        The question of what the child wants the court to do has nothing to do with the question of what the child wishes would turn out to be true.  Although the child at bar undoubtedly enjoyed receiving handouts on the street, that does not mean that she would want appellant to be ordered to be her father without being allowed to find out if he really is.  While the word "estoppel" is unknown to almost everyone outside of the legal system, it is not hard to explain the concept:  "He [showing picture] might be your Dad, we're not sure, there's a test they can do to find out for sure.  But sometimes we can get the judge to say that he has to be your father and that he can't get that test to find out, etc."  Of course the actual conversation would be a dialogue and not so predictable, but there is no question that an adult of normal intelligence could explain the matter to an 8-year-old of even reasonably normal intelligence.  The concern of the court and Attorney for the Child has traditionally been whether the news would upset the child, and there is no provision in the governing law for avoiding upset.  In fact, given the limited nature of the relationship, the child would probably not be greatly surprised to be told that paternity was uncertain.

 

                        An Attorney for the Child who participates in a proceeding without having fully discussed the issues with his client is not "directed by the wishes of the child", as required by Rule 7.2(d)(2), because the child has to be informed of the issues before the wishes become meaningful. 

 

                        Assigning an Attorney for the Child in a paternity estoppel case with the expectation that he would conceal the nature and facts of the case from his client would also violate Rule 1.4 of the Rules of Professional Conduct, 22 N.Y.C.R.R. §1200.4, governing communication between attorney and client.  The assignment puts the attorney in the impermissible position of choosing between violating the expectation of the court by disclosing the paternity dispute to the child and violating Rule 1.4 as well as the requirements of Rule 1.2(a) (22 N.Y.C.R.R. §1200.2[a]) and the definition of informed consent in Rule 1.0(j) (22 N.Y.C.R.R. §1200.0[j]).  The attorney for the child "is subject to the ethical requirements applicable to all lawyers. . . ."  Rule 7.2(b). 

 

                        The Committee on Children and the Law of the New York State Bar Association1 has published standards for representation of children in most proceedings, but not specifically in paternity estoppel proceedings.  The standards which come closest are the Standards for Attorneys Representing Children in Custody, Visitation and Guardianship Proceedings (June 2008), and the Standards for Attorneys Representing Children in New York Child Protective, Foster Care, and Termination of Parental Rights Proceedings (June 2007).  Both publications (at A-3) set forth two circumstances in which an Attorney for the Child is entitled to substitute judgment:                   

 

(1)  The attorney has concluded that the Court's adoption of the child's expressed preference would expose the child to substantial risk of imminent, serious harm [2007 Standards:  "grave physical harm"] and that this danger could not be avoided by removing one or more individuals from the home, or by the provision of court-ordered services and/or supervision;  or

 

(2)  The attorney is convinced that the child is not competent due to an inability to understand the factual issues involved in the case, or clear­ly and unequivocally lacks the capacity to perceive and comprehend the consequences of his or her decisions. 

 

                        If the Attorney for the Child did indeed proceed to take a position herein without having disclosed the fact of the paternity dispute to the child, and therefore without allowing the child even to attempt to make a knowing and considered judgment, but nevertheless based in part on his interview of his client, as appears likely to be the case, his statements constitute a report or recommendation, which is prohibited.  See Graham v. Graham, 24 A.D.3d 1051 (3d Dep't 2005).

 

[A] law guardian "is the attorney for the children . . . and not an investigative arm of the court"  (Weiglhofer v Weiglhofer, 1 A.D.3d 786, 788 n 1, [2003]; see Matter of Rueckert v Reilly, 282 A.D.2d 608, 609 [2001]). 

 

Cobb v. Cobb, 4 A.D.3d 747, 747 (4th Dep't 2004). 

 

                        It should be repeated that the arguments under this Point II are based on the assumption that the Attorney for the Child did not fully inform the child of the nature of the proceeding, in particular that appellant was challenging paternity.  This assumption was made based on the perception of a uniform practice by attorneys (with a corresponding uniform expectation of Family Court judges) that the attorneys will not make such disclosure.  The thinking is that because the focus is (incorrectly) believed to be protecting the child from knowledge of her true paternity (if it turns out to be different from what she thought) and even from knowledge of the fact that someone is challenging paternity, to have the attorney disclose these facts is to let the cat out of the bag and defeat the purpose of the estoppel hearing.  Of course, if the purpose of a paternity proceeding is really financial, as stated in Jane PP v. Paul QQ, supra, 64 N.Y.2d 15 (1984), then the feelings of the child should not matter.  In practice, however, it does not appear that Family Court adheres to the doctrine of Jane PP.  In fact, the apparently routine practice of relieving assigned counsel after the conclusion of the paternity phase of a case, notwithstanding the mandate of FCA §1120(a) that counsel continue on an appeal and on a motion for leave to appeal to the Court of Appeals, and the rule of Jane PP that the right to appeal as to paternity arises when the order of support is made, indicate that the doctrine of Jane PP is not being followed in the Family Court.2

 

                        It is conceded that this Point reflects a radical departure from the practice and expectations which were established years ago before reliable paternity testing was available and before the role of the Law Guardian (Attorney for the Child) was redefined, and therefore this discussion should not be taken as criticism for the Attorney for the Child (or his agency) who was in good faith adhering to such practices and honoring such expectations. 

                        This is not, however, merely a blueprint for a change in practice.  The change in practice was ordered and legislated by the Rules of the Chief Judge and the Rules of Professional Conduct set forth above, and appellant is only the messenger, not the architect. 

 

                        These issues were not raised in the court below, but the conduct of the trial with the presence and active involvement of an Attorney for the Child with the apparent expectation, apparently fulfilled, that he would not tell his client that appellant was challenging paternity or otherwise fully inform her of the nature and issues of the case, was a structural defect which should not require preservation.  Only certain persons are permitted to participate in a Family Court proceeding, and an Attorney for the Child who is performing a function other than that defined by the applicable rules is effectively an interloper. 

 

                        Appellant is prejudiced because Family Court presumably relied in part on the position taken by the Attorney for the Child.  An Attorney for the Child who is understood to be substituting judgment (as a judge normally does), but also known to be in a position to make his own investigation, gathering information on the case in preparation for trial (which a judge cannot do), can be expected to have a great influence on the trier of fact. 

 

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            Last Updated January 4, 2012

 

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     1  Both the undersigned attorney and the Attorney for the Child herein are members of the Committee.

     2  The conundrum is certainly not lessened by the language in FCA §262(a)(viii) that representation by assigned counsel is mandated for "the respondent in any proceeding under article five of this act in relation to the establishment of paternity.  (Emphasis supplied.)