AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings NEW YORK

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1 AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings NEW YORK Copyright 2018 American Bar Association All rights reserved. American Bar Association Standing Committee on Legal Aid and Indigent Defendants 321 N. Clark Street Chicago, IL Phone: ; FAX: The materials herein may be reproduced, in whole or in part, provided that such use is for informational, noncommercial purposes only and any copy of the materials or portion thereof acknowledges original publication by the American Bar Association and includes the title of the publication, the name of the author, and the legend Copyright 2014 American Bar Association. Reprinted by permission. Requests to reproduce materials in any other manner should be addressed to: Copyrights and Contracts Department, American Bar Association, 321 N. Clark Street, Chicago, IL 60610; Phone: ; FAX: ; i

2 NEW YORK Table of Contents Preface... 1 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 3 1. SHELTER SUSTENANCE SAFETY AND/OR HEALTH... 8 A. Domestic Violence Protection Order Proceedings... 8 B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings... 9 C. Civil Commitment or Involuntary Mental Health Treatment Proceedings D. Sex Offender Proceedings E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings CHILD CUSTODY A. Appointment of Counsel for Parent State-Initiated Proceedings B. Appointment of Counsel for Parent Privately Initiated Proceedings C. Appointment of Counsel for Child State-Initiated Proceedings D. Appointment of Counsel for Child Privately Initiated Proceedings MISCELLANEOUS A. Civil Contempt Proceedings B. Paternity Proceedings C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion D. Proceedings Involving Child Support E. Juvenile Delinquency, Status Offenses, or Child in Need of Supervision Proceedings F. Proceedings Involving Persons in Military Service G. Marriage Dissolution/Divorce Proceedings H. Forfeiture Proceedings Seeking Recovery of Proceeds I. Personal Injury Suits J. Civil Conversion Claims K. Parole Revocation Proceedings L. Proceedings Involving Claims by or Against Prisoners M. Marriage of Minors N. Truancy Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally ii

3 Preface Important Information to Read Before Using This Directory The ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings (Directory) is a compilation of existing statutory provisions, case law, and court rules requiring or permitting judges to appoint counsel for civil litigants. The Directory consists of 51 detailed research reports one for each state plus D.C. that present information organized by types of civil proceedings. Prior to using the Directory, please read the Introduction, at the Directory s home page, for the reasons behind the development of the Directory, the various sources of authority from which judicial powers to appoint counsel in civil proceedings may derive, and the structure used to organize information within each of the research reports. Terms of Use/Disclaimers This Directory should not be construed as providing legal advice and the ABA makes no warranties concerning the information contained therein, which has been updated to reflect the law through early The Directory does not seek to address all conceivable subsidiary issues in each jurisdiction, but some such issues were researched and addressed, including: notification of right to counsel; standards for waiver of right to counsel; standard of review on appeal for improper denial of counsel at trial; whether counsel for a child means a clientdirected attorney or a best interests attorney/attorney ad litem; and federal court decisions finding a right to counsel. Similarly, the research did not exhaustively identify all law regarding the issue of compensation of appointed counsel in each jurisdiction, though discussion of such law does appear within some of the reports. The Directory attempts to identify as unpublished any court decisions not published within an official or unofficial case reporter. Discussion of unpublished cases appears only for those jurisdictions where court rules currently permit their citation in briefs or opinions. Limitations on the use of unpublished opinions vary by jurisdiction (e.g., whether unpublished cases have value as precedent), and such limits were not exhaustively researched. Users should conduct independent, jurisdiction-specific research both to confirm whether a case is published and to familiarize themselves with all rules relating to the citation and use of unpublished or unreported cases. Acknowledgments This Directory was a multi-year project of the ABA s Standing Committee on Legal Aid and Indigent Defendants (SCLAID). We are indebted to our partner in this project, the National 1

4 Coalition for a Civil Right to Counsel (NCCRC), for sharing the body of research that was adapted to form the Directory s reports. The Acknowledgments, at the Directory s home page, details additional specific contributions of the many individuals involved in this project. 2

5 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 1. SHELTER State Statutes and Court Decisions Interpreting Statutes Intro 214-b, enacted in 2017 by New York City, adds N.Y.C. Admin. Code et seq. N.Y.C. Admin. Code (a) provides that: Subject to appropriation, the coordinator shall establish a program to provide access to legal services for covered individuals in covered proceedings in housing court and shall ensure that, no later than July 31, 2022, 1. all covered individuals receive access to brief legal assistance no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable; and 2. all income-eligible individuals receive access to full legal representation no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable. Covered individual is defined as a tenant of a rental dwelling unit located in the city, including any tenant in a building operated by the New York city housing authority, who is a respondent in a covered proceeding, while covered proceeding is defined as any summary proceeding in housing court to evict a covered individual, including a summary proceeding to seek possession for the non-payment of rent or a holdover, or an administrative proceeding of the New York city housing authority for termination of tenancy A New York statute grants the state s courts a discretionary power to appoint unpaid counsel to in forma pauperis litigants in any civil case. N.Y. C.P.L.R. 1102(a) ( The court in its order permitting a person to proceed as a poor person may assign an attorney. ). In deciding whether to appoint counsel as a discretionary matter, a trial court stated in a published opinion that proper case[s]... would include cases where indigent civil litigants face grievous forfeiture or loss of a fundamental right. Morgenthau v. Garcia, 561 N.Y.S.2d 867, 869 (Sup. Ct. 1990), discussed infra Part 5.H. In New York City Housing Authority v. Johnson, 565 N.Y.S.2d 362, 365 (App. Div. 1990) (per curiam), the court denied appointed counsel under section 1102 in an eviction from public housing proceeding. The court s refusal was based primarily on its belief that the tenant had failed to articulate a meritorious defense. See id. 3

6 The courts also may appoint an attorney to represent a person in military service who does not appear due to his or her military service, in any proceeding or action in which such person is a party. N.Y. Mil. Law 303(1). This right extends to appointed attorneys in eviction proceedings in landlord/tenant court. 444 W. 54th St. Tenants Ass n v. Costello, 523 N.Y.S.2d 374, 381 (Civ. Ct. 1987). In 2009, the legislature passed N.Y. C.P.L.R. 3408(b), which states that any foreclosure defendant appearing pro se at the mandatory conference is presumed to have filed a motion to proceed as a poor person, or in forma pauperis, under 1101, and for appointment of counsel, under 1102(a). If the court appoints counsel in the foreclosure matter, it is required to adjourn the conference to a date certain for appearance of counsel and settlement discussions[.] Id. Federal Statutes and Court Decisions Interpreting Statutes The federal Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968, provides that [a]n aggrieved person may commence a civil action in an appropriate United States district court or State court[.] 42 U.S.C. 3613(a)(1)(A). Further, [u]pon application by a person alleging a discriminatory housing practice or a person against whom such a practice is alleged, the court may... appoint an attorney for such person[.] 3613(b)(1). State Court Decisions Addressing Constitutional Due Process or Equal Protection In Costello, the court considered whether it should appoint counsel pursuant to the discretionary appointment provision of N.Y. Mil. Law 303 in an eviction case. 523 N.Y.S.2d at 374. In making this determination, the court launched into a constitutional analysis, discussing the court s inherent powers, the New York high court s due process decisions in various cases, the cutbacks to legal services that made the court reluctant to burden such agencies with new appointments (as part of a discussion of whether it could order payment for any attorney it appointed), and the Lassiter v. Department of Social Services, 452 U.S. 18 (1981) balancing test. Id. at The court suggested that while the New York Court of Appeals in In re Smiley, 330 N.E.2d 53 (N.Y. 1975) (discussed infra Part 5.G) had stated that counsel is Constitutionally required only when the state is proceeding against a litigant who has at risk liberty or other grievous forfeiture, such a stance had been made uncertain by the 1981 United States Supreme Court determination in Lassiter... Under the Lassiter test,... even if liberty is not at stake, there is only a rebuttable presumption that counsel is not mandatory. Id. at 378. The Costello court s reliance on Lassiter suggests that it was relying on an interpretation of the Fourteenth Amendment. The Costello court also pointed out: 4

7 Id. at 379. Certainly, even in the Smiley decision, then Chief Judge Breitel recognized that one's right to a home involves a vital private interest. Perhaps in keen foresight of the many homeless indigents who dwell on the streets of our nation, he said that there are various kinds of private litigation which may drastically affect indigent litigants... Eviction from homes, revocation of licenses affecting one's livelihood, mortgage foreclosures, repossession of important assets purchased on credit, and any litigation which may result in the garnishment of income may be significant and ruinous for an otherwise indigent litigant. The Costello court concluded by finding appointment both an appropriate exercise of discretion as well as a constitutional right in the instant case (and possibly all cases involving evictions of military personnel): [I]t is clear that this Court chooses to exercise whatever discretion it has in directing appointment of an attorney for the litigant in military service. Indeed, it is held that such appointment is mandated by public policy considerations and is also Constitutionally required due to the potential grievous forfeiture of a vital private interest of one in the military service of our country the rebuttable Lassiter presumption... has been rebutted under the facts of this case... thereby mandating appointment of counsel. Id. at 381. The court also concluded that: Id. at 378. Although the Smiley majority indicated... that courts lacked authority to direct expenditure for assigned civil counsel from public funds (see also In Re Goresen v. Gallagher, supra), earlier Court of Appeals decisions held that the power to incur legal expenses necessarily implies the power to direct payment for those expenses, especially in fulfilling a Constitutional mandate[.] Conversely, the appellate division in New York City Housing Authority v. Johnson held that under the federal and state Due Process Clauses an indigent person does not have the right to counsel in eviction proceedings. 565 N.Y.S.2d 362, 364 (App. Div. 1990). The state court found that while [the] tenant s property interest in continued possession is certainly significant, it is not so fundamental an interest mandating a due process right to assigned counsel. Id. The court relied on Lassiter as well as In re Smiley, and noted that Smiley had said in dicta that eviction from homes is ordinarily one of the many kinds of private litigation 5

8 which may drastically affect indigent litigants, but for which appointed counsel is not constitutionally required. Id. (quoting Smiley, 330 N.E.2d at 57). The holding in Johnson overruled the court s prior holding in Hotel Martha Washington Mgmt. Co. v. Swinick, which found a right to counsel in eviction cases. 322 N.Y.S.2d 139, 141 (Sup. Ct. 1971) (holding that the right of an indigent tenant to assigned counsel under the 14th Amendment of the U.S. Constitution, to defend his right to remain in possession of his dwelling had been established by several U.S. Supreme Court holdings, including Boddie v. Connecticut). The Johnson court noted that [o]ur prior extrapolation there of Boddie v. Connecticut... to mandate the assignment of counsel if indigent tenants, faced with eviction, have a meritorious defense and are unable to obtain free counsel, was rejected years later by the Court of Appeals in Smiley. Johnson, 565 N.Y.S.2d at 364. A number of cases have failed to find a right to counsel for indigent tenants in eviction proceedings. Brown v. Popolizio, 569 N.Y.S.2d 615, (App. Div. 1991) ( While an indigent tenant does not have a constitutional right to assigned counsel, the tenant must still be provided adequate procedural safeguards to satisfy due process); 170 W. 85th St. Tenants Ass n v. Cruz, 569 N.Y.S.2d 705, 707 (App. Div. 1991) (rejecting respondent s claim that he was entitled to counsel in eviction proceeding under due process clause, noting the appointment of counsel is ancillary to an order granting leave to proceed in forma pauperis and is entirely within the discretion of the motion court ); Donaldson v. New York, 548 N.Y.S.2d 676, 678 (App. Div. 1989) (recognizing the absence of a declaration by [the] Supreme Court of a right to assigned counsel for indigent tenants in Housing Court, whether derived from the Federal or State Constitution ); Williams v. White Plains Housing Auth., 309 N.Y.S.2d 454, 460 (Sup. Ct. 1970) (although due process requires that low-income housing tenant have opportunity to be heard at housing termination hearing and right to be heard by counsel, housing authority has no obligation to provide such counsel); Jagr v. Kubus, 481 N.Y.S.2d 977, 979 (Just. Ct. 1984) (finding no due process or equal protection right to counsel under state constitution in a proceeding to evict a nursing home resident, reasoning there was insufficient state action to trigger a right to counsel); In re Enrique R., 512 N.Y.S.2d 837, 841 (App. Div. 1987) (relying on Smiley for proposition that Family Court lacked power to appoint attorney for mother in order to seek public housing necessary to retain custody). 2. SUSTENANCE State Statutes and Court Decisions Interpreting Statutes New York law states that [t]he court shall appoint an attorney for an unrepresented claimant for unemployment insurance in the following cases, except when the claimant takes an appeal to the court of appeals : 6

9 (1) On an appeal from a decision of the appeal board in favor of the claimant. (2) On a motion for leave to appeal to the court of appeals from a decision of the appellate division of the supreme court which relates to a decision of the appeal board in favor of the claimant. (3) On an appeal to the court of appeals from a decision of the appellate division of the supreme court which relates to a decision of the appeal board in favor of the claimant. N.Y. Lab. Law 538(1)(d)-(e). In addition to any fee which may be allowed by the appeal board for services rendered to the claimant, an attorney representing a claimant [in the above cases] shall be entitled to a fee not to exceed the sum of [$500] and necessary printing and other disbursements[.] 538(1)(d). 1 [T]he court shall allow a fee and disbursements only if it finds the appeal to have been meritorious. Id. Fees and disbursements provided in such [cases] shall be fixed by the court in which the appeal is taken or the motion for leave to appeal is made. Such fees and disbursements shall be paid by the commissioner as part of the expenses incurred in the administration of the unemployment insurance law. 538(1)(e). Federal Statutes and Court Decisions Interpreting Statutes Title VII of the Civil Rights Act of 1964 prohibits employment discrimination. While nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has specified that state courts have concurrent jurisdiction with federal courts for Title VII claims. Yellow Freight Sys. Inc. v. Donnelly, 494 U.S. 820, (1990). Title VII provides that [u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant[.] 42 U.S.C. 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Circuit observed: Title VII s provision for attorney appointment was not included simply as an afterthought; it is an important part of Title VII s remedial scheme, and therefore courts have an obligation to consider requests for appointment with care. In acting on such requests, courts must remain mindful that appointment of an attorney may be essential for a plaintiff to fulfill the role of a private attorney 1 An amendment introduced by New York State Senator Marisol Alcantara on March 15, 2017 would adjust this level of compensation... to provide assigned counsel with a fee at the rate of $75 per hour subject to a cap in any one case of $2,000. As adjusted, compensation would continue to be funded by the State through the court system budget. 7

10 general, vindicating a policy of the highest priority.... Once the plaintiff has triggered the attorney appointment provision, courts must give serious consideration to the plaintiff s request.... such discretionary choices are not left to a court s inclination, but to its judgment; and its judgment is to be guided by sound legal principles.... Furthermore, in exercising this discretion, the court should clearly indicate its disposition of the request for appointment and its basis for that disposition. 737 F.2d 1173, (D.C. Cir. 1984) (citations omitted). State Court Decisions Addressing Constitutional Due Process or Equal Protection New York s highest court did not find a due process or equal protection right to counsel under either the state or Federal Constitution during a welfare termination hearing, holding that the fair hearing held according to the statute and regulations provided the indigent claimant with due process. Brown v. Lavine, 333 N.E.2d 374, 377 (N.Y. 1975). The court also rejected an equal protection argument: Id. Petitioner s argument that denial of counsel because of indigency violates equal protection falls, we think, with the due process claim.... The right to a fair hearing does not turn on the financial ability to retain counsel and the equal protection clauses do not impose on the State an absolute duty to give to some whatever others can afford. 3. SAFETY AND/OR HEALTH A. Domestic Violence Protection Order Proceedings State Statutes and Court Decisions Interpreting Statutes An indigent petitioner or respondent in any proceeding under Article 8 of the Family Court Act dealing with domestic violence or family offenses, or on appeal of such action, has the right to appointed counsel. N.Y. Fam. Ct. Act 262(a)(ii); 1120(a). Where these proceedings take place in the New York Supreme Court, the petitioners and respondents have these same rights to appointed counsel. N.Y. Jud. Law 35(8) (providing for fees to be paid to appoint counsel when the supreme court exercises jurisdiction over family court matter whereby, if such proceedings were pending in family court, such court would be required by section [262] of the family court act to appoint counsel ). 8

11 B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings State Statutes and Court Decisions Interpreting Statutes Article 81 of the New York Mental Hygiene Laws provides for counsel in a procedure to determine whether someone is incapacitated and provides a guardian for those determined to be incapacitated. N.Y. Mental Hyg. Law 81.10; 81.11(e) (requiring appointment of counsel where requested, where a petition is contested, where the court thinks it would be helpful, where the court is not satisfied that the person is capable of making an informed decision regarding the appointment of counsel, or some other scenarios specified in the statute); In re Turner, 730 N.Y.S.2d 188, 190 (N.Y. Sup. Ct. 2001) ( [I]ndigent defendants in the Criminal and Family Courts, and poor [allegedly incapacitated persons] and [incapacitated persons] in Article 81 proceedings have the right to appointment of effective counsel. ). The Turner court also suggested that counsel is provided when the guardianship is being modified. See id. at 189. See also Matter of Azzi (Trapani), 141 A.D.3d 1159, 1162 (N.Y. App. Div. 4th Dep't July 8, 2016) (reversing guardianship where no counsel appointed because [w]e cannot agree with petitioner that the Surrogate s errors are harmless based on the AIP [allegedly incapacitated person] s agreement to her appointment as guardian... The petition itself avers that the AIP is easily influenced and persuaded by others and that the disclaimer is invalid in part because the AIP did not have the benefit of his own independent counsel before signing the disclaimer. In our view, the failure to appoint independent counsel for the AIP renders it impossible to determine whether the AIP s agreement to petitioner's appointment as guardian was an informed decision. ); In Re Diurno, 182 Misc.2d 205, 211 (NY.Sup.Ct. 1999) (procedural safeguards for guardianship on review are essentially the same ). Additionally, the state provides a mental hygiene legal service in each judicial department provid[ing] legal assistance to patients or residents of a [mental] facility[.] N.Y. Mental Hyg. Law 47.01(a). For guardianships conducted pursuant to Article 17-A of the Surrogate's Court Procedure Act, which is utilized where there is a diagnosis of a developmental or intellectual disability, appointment of counsel is governed by N.Y. Surr. Ct. Proc. Act 407(1)(b), which states that the court appoints counsel if the judge determines that such assignment of counsel is mandated by the federal or state constitution. Mentally ill and/or physically impaired adults seeking temporary protection from abuse and neglect are entitled to legal representation, and the court shall assign counsel to assist the respondent. N.Y. Soc. Serv. Law 473-a(5)(b)(iv). New York state law provides that residents of mental health facilities are entitled to initiate and take any legal action deemed necessary 9

12 to safeguard the right of any patient or resident to protection from abuse or mistreatment. N.Y. Mental Hyg. Law 47.03(e). 2 The Appellate Division in In re St. Luke s-roosevelt Hosp. Ctr (finding constitutional right to counsel for involuntary guardianship) ordered the city to pay for appointed counsel, 640 N.Y.S.2d 73, 74 (App. Div. 1996), a ruling that was upheld by the Court of Appeals. 675 N.E.2d 1209, 1210 (N.Y. 1996) ( We conclude that the Legislature, by providing for the assignment of counsel for indigents in the Mental Hygiene Law, intended, by necessary implication, to authorize the court to compensate counsel. ). State Court Decisions Addressing Constitutional Due Process or Equal Protection In In re St. Luke s-roosevelt Hosp. Ctr., the court held that, under Lassiter v. Department of Social Services, 452 U.S. 18 (1981), and the Fourteenth Amendment, an indigent elderly person was entitled to representation by counsel before the imposition of a guardian to handle an involuntary transfer to a nursing home, after applying the balancing test from Mathews v. Eldridge, 424 U.S. 319 (1976). 607 N.Y.S.2d 574, (Sup. Ct. 1993) ( [A]t least where an Article 81 petition seeks powers for a guardian of the person to either place the [allegedly impaired person] in a nursing home or other institutional facility, or to make major medical decisions, an indigent [allegedly impaired person] is constitutionally entitled to the appointment of counsel at state expense. ), decision modified and remanded, 627 N.Y.S.2d 357 (1995). After applying the balancing test from Mathews, the court found that the privacy interests and risks of erroneous deprivation were high because involuntary nursing home placement is dangerous to the person s health and because it implicates the person s liberty interests while the state s interests (primarily the cost of providing the guardian) were low. Id. The court found that a forced relocation to a nursing home implicated a fundamental right akin to physical liberty. Id. In Matter of Leon, 53 Misc. 3d 1204(A), 43 N.Y.S.3d 769, 2016 WL , at *1 (N.Y. Sur. 2016), the court held that an indigent proposed ward in a guardianship proceeding within Surrogate Court 3 is entitled to appointed counsel. The court noted that NY CLS SCPA 407(1)(b) gives the Surrogate Court the authority to appoint counsel in any case where the judge "determines that such assignment of counsel is mandated by the constitution of this state 2 A set of parallel bills in the New York State Senate and Assembly would alter this wording to include the word youth as follows: initiate and take any legal action deemed necessary to safeguard the right of any patient, resident or youth to protection from abuse or mistreatment NY S.B (NS); 2017 NY A.B (NS). 3 Guardianships initiated pursuant to Article 17-A of the Surrogate's Court Procedure Act, which only apply where there is a diagnosis of a developmental or intellectual disability, are not covered by N.Y. Mental Hyg. Law and 81.11(e), which provide a right to counsel. 10

13 or of the United States, and the court held that this case fit that description. Id. at *1, *5. The court observed that Gideon s due process mandate has been extended to civil proceedings and quasi-criminal proceedings when fundamental interests no less important than freedom from incarceration are threatened, and the court noted past NY cases finding a right to counsel for cases involving termination of parental rights, transfers of mental health patients, parole revocation proceedings, and others. Id. at *2 (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). The court also pointed to the recent efforts around Intro 214 (which as of 2017 provides a right to counsel in NYC housing cases), and noted former Chief Judge Lippman s support for a civil right to counsel as well as the NY Legislature s endorsement of the civil right to counsel principle. Id. at *3 & n.6. The court concluded: Given that the right to assigned counsel is recognized in a myriad of quasi-criminal and civil proceedings, ranging from military eviction and child custody, to involuntary commitment and employment litigation, there is no question that in Article 17-A proceedings, where a person s decision-making authority in every aspect of life is at stake, constitutional protections are warranted. The resulting deprivation of fundamental liberty interests inherent in the appointment of an Article 17-A guardian constitutes a loss of liberty as significant as those which previously have triggered the appointment of counsel.... The fundamental liberty interests of an individual to self-determination, privacy, and autonomy are certainly equal to, if not greater than, the private interests implicated in proceedings involving the rights of parents in neglect proceedings or of tenants in housing court. Article 17-A guardianship infringes on a person s fundamental right to privacy..., a fundamental right to refuse unwanted medical treatment..., and a fundamental right to make personal decisions regarding marriage, procreation, contraception, family relationship, child rearing, and education[.] Id. at *3 (citations and quotations omitted). The court also held that appointment of a guardian ad litem would not satisfy the due process need for a vigorous advocate on the respondent s behalf[.] Id. at *5. See also In re Zhuo, 42 N.Y.S.3d 530, 2016 N.Y. Slip Op (N.Y. Surr. Ct. 2016) (court holds an indigent adult subject to guardianship proceedings within Surrogate Court was entitled to assigned counsel). C. Civil Commitment or Involuntary Mental Health Treatment Proceedings State Statutes and Court Decisions Interpreting Statutes 11

14 A hospital may involuntarily admit a patient suffering from mental illness on the medical certification of two doctors. N.Y. Mental Hyg. Law 9.27(a). In addition: The mental hygiene legal service in each judicial department of the state shall perform the following duties:... (b) To inform patients or residents... of the patients or residents right... to be represented by legal counsel... (c) To provide legal services and assistance to patients or residents and their families related to the admission, retention, and care and treatment of such persons, to provide legal services and assistance to subjects of a petition or patients subject to section 9.60 of this chapter, and to inform patients or residents, their families and, in proper cases, others interested in the patients or residents welfare of the availability of other legal resources which may be of assistance in matters not directly related to the admission, retention, and care and treatment of such patients or residents 47.03(b)-(c). 4 See also 9.27(f) ( Following admission to a hospital, no patient may be sent to another hospital by any form of involuntary admission unless the mental hygiene legal service has been given notice thereof. ); 9.39(a)(2) (when person is alleged to be mentally ill and involuntarily admitted to hospital pursuant to emergency procedure, mental health legal service is notified and can schedule a hearing). A court also may appoint counsel in a civil proceeding to commit or transfer a person to or retain him in a state institution when such person is alleged to be mentally ill, mentally defective or a narcotic addict[.] N.Y. Jud. Law 35(1)(a). People subject to court-ordered assisted outpatient treatment 5 are guaranteed the right to counsel. N.Y. Mental Hyg. Law 9.60(g) ( The subject of the petition shall have the 5 Assisted outpatient treatments are defined as follows: case management services or assertive community treatment team services to provide care coordination, and may also include any of the following categories of services: medication; periodic blood tests or urinalysis to determine compliance with prescribed medications; individual or group therapy; day or partial day programming activities; educational and vocational training or activities; alcohol or substance abuse treatment and counseling and periodic tests for the presence of alcohol or illegal drugs for persons with a 12

15 right to be represented by the mental hygiene legal service, or privately financed counsel, at all stages of a proceeding commenced under this section. ). Patients involuntarily committed to a facility, whose objections to their care and treatment were overruled, have a right to request that legal counsel represent them to appeal the treatment decision, although it is not clear whether this right includes appointed counsel if indigent. N.Y. Comp. Codes R. & Regs. tit. 14, 27.8(d); see also N.Y. Correct. Law 402(3) (right for prisoners being transferred to mental health facility to be represented by counsel, but not clarifying whether right includes appointment of counsel if indigent). State Court Decisions Addressing Constitutional Due Process or Equal Protection In Rivers v. Katz, 495 N.E.2d 337, 344 (N.Y. 1986), the New York Court of Appeals noted that the patient has a strong liberty interest in controlling his treatment (and thus refusing antipsychotic medication) that cannot be overruled absent a compelling interest, despite the fact that the patient was involuntarily committed. The court concluded that the patient had a right, under the state constitution, to a hearing determining whether his treatment should include the involuntary administration of psychotropic medication. Id. The court added that for the hearing, the patient should be afforded representation by counsel, but it cited to Judiciary Law 35, see id., making it unclear whether it was relying on a statutory provision at the time that already provided for counsel or was grafting a due process right onto the statute. But see also People ex rel Rogers v. Stanley, 17 N.Y.2d 256, 259 (1966) (citing various U.S. Supreme Court cases such as Gideon v. Wainwright, Douglas v. People of State of California, and Griffin v. People of State of Illinois, to hold that an indigent mental patient, who is committed to an institution, is entitled, in a habeas corpus proceeding (brought to establish his sanity), to the assignment of counsel as a matter of constitutional right ); Matter of Andrea B., 405 N.Y.S.2d 977, 982 (Fam. Ct. 1978) (in case involving juvenile subject to involuntary commitment, court cites to Stanley as well as Powell v. State of Ala., 287 U.S. 45 (1932), for holding that the right to counsel, including assigned counsel for the indigent is a due process right ); In re Rodriguez, 607 N.Y.S.2d 567, 568 (Sup. Ct. 1992) (relying on Stanley to hold that an alleged incompetent has a fundamental right to representation by counsel... in opposing a 9.60(a)(1). history of alcohol or substance abuse; supervision of living arrangements; and any other services within a local or unified services plan developed pursuant to article forty-one of this chapter, prescribed to treat the person s mental illness and to assist the person in living and functioning in the community, or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in suicide or the need for hospitalization. 13

16 proceeding for a committeeship and further noting that [a] proceeding to declare a person incompetent effectively results in a complete loss of personal liberty and property ). D. Sex Offender Proceedings State Statutes and Court Decisions Interpreting Statutes Sex offenders determined to need civil commitment or other forms of civil management are entitled to counsel in any hearing or trial conducted to so determine. See N.Y. Mental Hyg. Law 10.06(c) ( [U]pon the filing of a sex offender civil management petition, or upon a request to the court by the attorney general for an order... that a respondent submit to an evaluation by a psychiatric examiner, whichever occurs earlier, the court shall appoint counsel in any case where the respondent is financially unable to obtain counsel. ); 10.08(g) ( In preparing for or conducting any hearing or trial pursuant to the provisions of this article, and in preparing any petition under the provisions of this article, the respondent shall have the right to have counsel represent him or her, provided that the respondent shall not be entitled to appointment of counsel prior to the time provided in section of this article. ); N.Y. Correct. Law 168-d(2); 168-k(2) (right to appointed counsel for sex offender registration classification hearing). In the event of an appeal, a respondent who is or becomes financially unable to obtain counsel shall have the right to have appellate counsel appointed[.] N.Y. Mental Hyg. Law 10.13(c). There is also a right to appointed counsel for hearings relating to sex offender registration. N.Y. Correct. Law 168-n(3). 6 E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings State Statutes and Court Decisions Interpreting Statutes The New York City Health Code provides for a right to counsel to those subjected to orders relating to communicable disease. See N.Y.C. Health Code 11.21(e) ( In any court proceeding to enforce a Commissioner s order for the removal or detention of a person issued pursuant to this subsection or for review of the continued detention of a person, the Commissioner shall prove the particularized circumstances constituting the necessity for such detention by clear and convincing evidence. Any person who is subject to a detention order shall have the right to be represented by counsel and upon the request of such person, counsel shall be provided. ); 11.21(f)(2) ( an order for the removal and detention of a person shall:.. 6 Two separate pieces of proposed legislation would add the following phrase to notice of right to counsel for a sex offender in advance of a determination proceeding: You have a right to be represented by counsel at that hearing. Counsel will be provided if you are financially unable to retain counsel NY S.B. 949 (NS); 2017 NY A.B (NS). 14

17 . (iv) advise the person being detained that he or she has the right to arrange to be represented by counsel or to have counsel provided, and that if he or she chooses to have counsel provided, that such counsel will be notified that the person has requested legal representation; (v) be accompanied by a separate notice which shall include but not be limited to the following additional information:... (B) that he or she has the right to arrange to be advised and represented by counsel or to have counsel provided, and that if he or she chooses to have counsel provided, that such counsel will be notified that the person has requested legal representation ). State Court Decisions Addressing Constitutional Due Process or Equal Protection One New York court ruled that an indigent person has a due process right to have counsel assigned in an involuntary hospitalization proceeding for disease since his liberty is in jeopardy. Rapoport v. G.M., 657 N.Y.S.2d 748, (App. Div. 1997) (involuntary hospitalization under N.Y. Pub. Health Law 2120 for communicable disease). The court cited to both Lassiter v. Department of Social Services, 452 U.S. 18 (1981) and to Rivers v. Katz, 495 N.E.2d 337 (N.Y. 1986), discussed supra Part 3.C. Id. 4. CHILD CUSTODY A. Appointment of Counsel for Parent State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes New York statutes provide for the right to appointed counsel for the following indigent parties: The respondent and parents, foster parents, or others with physical or legal custody of the child in child protective hearings, child abuse hearings, or permanency hearings for foster children under Article 10 and Article 10-A of the Family Court Act. N.Y. Fam. Ct. Act 262(a)(i), (iv). o Section 1022-a extends this right to counsel to non-respondent parents who appear in court, and provides that the right to counsel for any parent can be waived, while 1035(d) requires parents to be advised of this right. The petitioner (such as the non-custodial parents or grandparents) in any proceeding, under Part 8 of Article 10 of the Family Court Act, dealing with visitation of minor children in foster care. 262(a)(i). 15

18 The respondent in any proceeding, under Part 3 of Article 6 of the Family Court Act, regarding custody of a minor child. 262(a)(iii). 7 A parent, foster parent, or other person with physical or legal custody of the child in proceedings under Social Services Law Sections 358-a, 384, and 384-b concerning dependent children in foster care, guardianship and custody of children not in foster care when committed to an authorized agency, or guardianship and custody of destitute or dependent children. 262(a)(iv). The respondent in any proceeding under Social Services Law Section 384-b concerning guardianship and custody of destitute or dependent children. N.Y. Surr. Ct. Proc. Act 407(1)(a)(i). The respondent in any proceeding under Social Services Law Section 384 for the approval of a surrender instrument concerning guardianship and custody of children not in foster care. 407(1)(a)(ii). A non-custodial parent or grandparent served with notice of transfer of custody or care under Social Services Law Section 384-a(2)(e). N.Y. Fam. Ct. Act 262(a)(iv). [T]he parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child, in any proceeding[.] 262(a)(v); N.Y. Surr. Ct. Proc. Act 407(1)(a)(iv). [T]he parent of a child in any adoption proceeding who opposes the adoption of such child. N.Y. Fam. Ct. Act 262(a)(vii); N.Y. Surr. Ct. Proc. Act 407(1)(a)(iii). See also N.Y. Soc. Serv. Law 384-b(3)(e) (requiring notice to parents of their right to the assistance of counsel, including any right they may have to have counsel assigned by the court in any case where they are financially unable to obtain counsel in a proceeding to free a destitute or dependent child for adoption). Any of the above parties on appeal of the action. N.Y. Fam. Ct. Act 1120(a). See also N.Y. Surr. Ct. Proc. Act 407(a)(v). 7 In Wilson v. Bennett, 282 A.D.2d 933, 934 (2001), the court clarified that although... the word visitation does not appear anywhere in Family Court Act 262, a proceeding to modify a prior order of visitation plainly is a proceeding under Family Court Act article 6, part 3 and, hence, falls within the purview of the assigned counsel statute. 16

19 Where any of the above proceedings take place in the New York Supreme Court, the parties have these same rights to appointed counsel. N.Y. Jud. Law 35(8) (providing for fees to be paid to appointed counsel when the supreme court exercises jurisdiction over family court matter whereby, if such proceedings were pending in family court, such court would be required by section [262] of the family court act to appoint counsel ). According to 35(1)(a), the trial court may appoint counsel when the court orders a hearing in any adoption or custody proceeding if it determines that assignment of counsel in such cases is mandated by the constitution of this state or of the United States[.] An indigent parent is not entitled to substitute appointed counsel when there is no good cause shown for the original counsel s release. Mooney v. Mooney, 663 N.Y.S.2d 676, 677 (App. Div. 1997); see also Matter of Pacheco v. Stearns, 803 N.Y.S.2d 287, 288 (App. Div. 2005) (respondent s right to counsel was not violated when he was advised of his rights with regard to legal representation, denied assigned counsel based upon financial information provided to Family Court, and granted adjournment to obtain counsel but two months later appeared in court without counsel). Under N.Y. Jud. Law 35(1)(a), the trial court may appoint counsel for such parties unable to afford one if the trial court: orders a hearing for the commitment of the guardianship and custody of a child to an authorized agency by reason of the mental illness or mental retardation of a parent, or when it orders a hearing to determine whether consent to the adoption of a child shall be required of a parent who is alleged to be mentally ill or mentally retarded, or... to determine the best interests of a child when the parent of the child revokes a consent to the adoption of such child and such revocation is opposed Federal Statutes and Court Decisions Interpreting Statutes The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 8 provides: 8 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) contemplates that state law may not provide for appointment of counsel. Additionally, subsection (a) states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child s tribe, by registered mail with return receipt requested, 17

20 In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding.... Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary [of the Interior] upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to [25 U.S.C. ] U.S.C. 1912(b). State and Federal Court Decisions Addressing Constitutional Due Process or Equal Protection In In re Ella B., 285 N.E.2d 288, 290 (N.Y. 1972), the New York high court held that under the Due Process Clause (it did not indicate whether it was addressing the state or federal constitution, or both), 9 an indigent person is entitled to appointed counsel in neglect proceedings where that person faces a loss of child custody. Although this case was decided before Lassiter v. Department of Social Services, 452 U.S. 18 (1981), courts since Lassiter have relied upon Ella B. (and its progeny) to hold there is a right to counsel for parents in termination and neglect cases, and have not mentioned Lassiter. See, e.g., In re Evan F., 815 N.Y.S.2d 697, 699 (App. Div. 2006); People v. Smith, 465 N.E.2d 336, 339 (N.Y. 1984) (holding that due process and equal protection require the assistance of counsel when rights and interests as fundamental as those involved in the parent-child relationship are at stake, and citing Ella B., 285 N.E.2d 288 (N.Y. 1972)). The Ella B. court found that an indigent parent, faced with the loss of a child s society, as well as the possibility of criminal charges, is entitled to the assistance of counsel. 285 N.E.2d at 290. The court reasoned that under due process analysis, [a] parent s concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right to be relinquished to the State without the opportunity for a hearing, with assigned of the pending proceedings and of their right of intervention. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 9 The court in St. Luke s listed Ella B. among the cases extending a right to counsel in certain types of civil cases, but when it then noted how some of these cases rested on the state constitution, it did not include Ella B in that second list. See In re St. Luke s-roosevelt Hosp. Ctr., 607 N.Y.S.2d 574, (Sup. Ct. 1993), aff d, 89 N.Y.2d 889 (N.Y. 1996). However, later in the opinion, the court commented: In Lassiter,... the Supreme Court held that counsel was not inevitably required even in termination proceedings. However, our Court of Appeals has held counsel mandated both in termination and neglect proceedings, thus demonstrating a greater commitment to the protection of liberty interests under the state constitution than is necessarily required under the Federal constitution. Id. at 578 n.5. 18

21 counsel if the parent lacks the means to retain a lawyer. Id. (internal citations omitted) (holding that denial of counsel was in violation of both due process and equal protection); see also Orneika J. v. Harriet J., 491 N.Y.S.2d 639, 640 (App. Div. 1985) (citing Ella B.). The Ella B. court also addressed the Equal Protection Clause briefly, saying that in addition to a violation of due process, the denial of counsel to an indigent parent facing the loss of custody of a child is, in light of the express statutory provision for legal representation for those who can afford it, a denial of equal protection of the laws as well. 285 N.E.2d at 290. And the court added that: Id. Once the conclusion is reached that one has a right to be represented by assigned counsel... it follows that one is entitled to be so advised. If the rule were otherwise, if the party before the court was not apprised of his right to assigned counsel, there could be no assurance either that he knew he had such a right or that he had waived it. In Nicholson v. Williams, 203 F. Supp. 2d 153, 239 (E.D.N.Y. 2002), a federal district court found a due process right to counsel for mothers accused of neglect based on domestic violence committed against them by child s father. The court applied the Mathews v. Eldridge, 424 U.S. 319, 335 (1976) factors and noted the strong interests at stake: The government's interests are particularly weak; its actions are motivated by bureaucratic pusillanimity and ignorance that harm rather than help the interests of the child. The risk of error, which in this case constitutes protracted unnecessary removals, is high, given that ACS caseworkers rely on deficient training and official policies. Id. at 255. In another case, where a minor had been provided an attorney during a child abuse proceeding about which she was the subject, the court held that she was entitled to effective assistance of counsel. In re Jamie TT, 599 N.Y.S.2d 892, (App. Div. 1993) ( [T]he Due Process Clauses of the Federal and State Constitutions... mandate that there be some form of legal representation of Jamie s interests in the proceedings on the petition.... Her constitutional and statutory rights to be represented by counsel were not satisfied merely by the State s supplying a lawyer s physical presence in the courtroom[.] (emphasis in original)). In this case, the child-subject of an abuse proceeding was represented by an attorney during the proceeding, but her attorney did not cross-examine the respondent and failed to challenge or offer any evidence to support the child s allegations of abuse. Id. at 895. The court found that the child s rights at stake during the proceedings which could have restored primary custody to her alleged abuser were too great to allow her attorney to stand mute. Id. at B. Appointment of Counsel for Parent Privately Initiated Proceedings 19