Barbara T. v. Acquinetta M.

• Decision Date: 09 August 2018
• Docket Number: 7055
• Citation: 82 N.Y.S.3d 416,164 A.D.3d 1
• Parties: In re BARBARA T., Petitioner-Respondent, v. ACQUINETTA M., Respondent-Respondent, The Children's Law Center, on behalf of Ja-Quel M., Appellant. Lawyers For Children and Covenant House New York, Amici Curiae.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 1

82 N.Y.S.3d 416

In re BARBARA T., Petitioner-Respondent,

v. ACQUINETTA M., Respondent-Respondent,The Children's Law Center, on behalf of Ja-Quel M., Appellant.Lawyers For Children and Covenant House New York, Amici Curiae.

7055

Supreme Court, Appellate Division, First Department, New York.

ENTERED: August 09, 2018

Karen P. Simmons, The Children's Law Center, Brooklyn (Janet Neustaetter and Dawn Post of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Jane L. Gordon and Devin Slack of counsel), for Commissioner of Social Services, respondent.

Boom Health Legal Services, Bronx (Sahar Shams of counsel), for Acquinetta M., respondent.

Karen Freedman, Lawyers For Children, Inc., New York (Betsy Kramer of counsel), for Lawyers For Children, amicus curiae.

Nancy Downing, New York, for Covenant House New York, amicus curiae.

Dianne T. Renwick, J.P., Rosalyn H. Richter, Sallie Manzanet-Daniels, Peter Tom, Ellen Gesmer, JJ.

GESMER, J.

The essential facts are not in dispute. Ja–Quel M. was born on December 21, 2000. In or about 2010, he was removed from his birth mother's home and placed in non-kinship foster care with respondent Acquinetta M. (mother or Ms. M), who thereafter adopted him.¹ When the adoption became final, in or about April 2014, she began to receive a monthly adoption subsidy for Ja–Quel, which was administered by the Administration for Children's Services (ACS). The amount of the subsidy indicates that Ja–Quel had been identified as a child requiring "exceptional" services ( 18 NYCRR 421.24 [a][6] ).

On December 2, 2015, the petitioner in this proceeding, Ja–Quel's godmother, Barbara T. (guardian or Ms. T), filed a petition for guardianship of Ja–Quel. In or about February 2016, Ja–Quel began living with her full-time. Ms. M did not contest the petition, and it was granted on March 28, 2016.

In March 2016, Ms. M advised ACS that Ja–Quel was no longer living with her and that she wished to stop receiving the subsidy. Based solely on her request, ACS issued a notice to the mother dated April 13, 2016 stating that the subsidy had been "suspended" effective April 14, 2016 at her request. The last subsidy payment she received was in the amount of $1,944.01 on or about April 1, 2016.

On March 31, 2016, Ja–Quel's guardian filed a petition in Bronx Family Court seeking child support from Ms. M. On or about June 28, 2016, the Children's Law Center (CLC), which had represented Ja–Quel in the guardianship proceeding, was appointed, without any limitation, to represent him in the child support proceeding.²

On August 22, 2016, the Support Magistrate took testimony on the mother's defense that she was relieved of her obligation to support Ja–Quel because he had been constructively emancipated.

At the continuation of the hearing on September 12, 2016, Ms. M testified that her only income was Supplemental Security Income (SSI) in the amount of $779 per month. She further testified that the reason she was unwilling to receive the adoption subsidy for Ja–Quel was that she was concerned that his guardian could claim that she had not turned the funds over to her.³

At the conclusion of testimony on September 12, 2016, the Support Magistrate was advised that Ja–Quel's guardian had applied for and obtained public assistance benefits for him of $91 per week. Consequently, the Support Magistrate determined that the Department of Social Services (DSS) was an interested party ( Social Services Law [SSL] § 348[2] ), and she issued an order transferring the proceeding to New York County Family Court. At the same time, she issued a temporary order of support directing the mother to pay the statutory minimum, $25 per month, thus rejecting CLC's arguments that the adoption subsidy should be considered in setting temporary child support.

On October 26, 2016, CLC filed a motion in Family Court, New York County, requesting leave to continue to appear on Ja–Quel's behalf in the transferred proceeding, and asking that child support be based on the amount of the adoption subsidy. The motion was supported by, inter alia, an email to CLC counsel from the Program Manager of ACS's Post–Adoption Support Services Unit, which stated, "If the adoptive parent(s) requests a suspend payment [and] th[e]n they later decide to resume receiving the subsidy payments, they must forward a notarized letter to ACS post adoption customer service, indicating that is their request. This request can be processed up until the adopted child's 21st birthday."

On November 30, 2016, DSS moved before New York County Family Court in support of CLC's motion seeking support in the amount of the adoption subsidy, and seeking permission to appear as an interested party. The latter request was granted.

On February 7, 2017, Support Magistrate Clarke issued an order granting CLC's motion only to the extent that CLC "may appear as attorney for the subject child." The order contains no limitation on the scope of CLC's representation.

On February 14, 2017, Support Magistrate Clarke issued written findings of fact. She found that Ms. M remained legally responsible for the child's support until he reached the age of 21, regardless of the award of guardianship to Ms. T. She determined that Ms. M's pro rata share of the basic child support obligation, based on her SSI income, was the statutory minimum of $25 per month.⁴ She further determined that the adoption subsidy is properly treated as a resource of the child in determining whether the basic child support obligation is unjust or inappropriate, but found that she could not direct the mother to pay child support in an amount equal to the subsidy, since she was no longer receiving the subsidy. She further found that deviating from the basic child support obligation based on the subsidy would be "tantamount to ... forcing the Respondent to seek to reinstate the adoption subsidy," and declined to do so. Consistent with her decision, on February 14, 2017, Magistrate Clarke issued a final child support order, which directs the mother to pay $25 per month to the child's guardian as child support.⁵

Both DSS and the child's attorney filed timely objections to the Support Magistrate's order. On April 20, 2017, Family Court (Fasanya, J.) denied the objections. With regard to the objections filed by CLC, the court found that CLC did not have standing to object to the child support order because it was only appointed to address the mother's defense of constructive emancipation, and because the Family Court Act does not specify that objections may be filed by a child's attorney ( FCA § 439[e] ). The court further found that, were it to entertain CLC's arguments, it would deny the objections because it is "inappropriate, if not illegal, for a person to apply for and receive adoption subsidies for a minor who is not in said person's care," and because an adoptive parent "may opt not to receive any subsidies and care for said child solely out of pocket." The court applied the same reasoning to deny DSS's objections. The court therefore confirmed the Support Magistrate's order.

CLC now appeals from the denial of its objections. DSS and amici curiae Lawyers for Children and Covenant House New York submit briefs in support of CLC's appeal, and the mother opposes it.

Standing

At the outset, Family Court erred in determining that CLC did not have standing to file objections in Family Court.⁶ Family Court may appoint attorneys for children in cases in which such appointments are not mandatory, including in child support matters, where doing so "will serve the purposes" of the Family Court Act ( FCA § 249 ). The preference for appointment of counsel for children in Family Court "is based on a finding that counsel is often indispensable to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and proper orders of disposition" ( FCA § 241 ).

The record before us does not support Family Court's determination that CLC was appointed to represent the subject child solely in connection with issues of constructive emancipation and abandonment. Rather, the record shows that the Support Magistrates in both Bronx and New York County Family Courts appointed CLC as attorney for the child with no limitations on the scope of its representation.

Although the mother argues that Family Court Act § 439(e) restricts the filing of objections to a "party or parties," we find that her reading is too narrow. That section does not prohibit children's attorneys, where appointed, from filing or rebutting objections to a Support Magistrate's order for three reasons. First, the statute is focused on the time frame for filing and not on the identity of the filers. It appears that the words "party" and "parties" are used in the general sense of persons or entities who have been served with a copy of the support order, rather than the strict sense of petitioner and respondent.

Second, children's attorneys are expected to participate fully in proceedings in which they are appointed. We base this conclusion on the broad language of section 249 authorizing appointment of attorneys for children in any type of proceeding, the legislative finding that children's attorneys can be "indispensable to a practical realization of due process of law" ( FCA § 241 ), and the obligation of attorneys for children to zealously advocate for their clients and generally adhere to the ethical requirements applicable to all attorneys ( 22 NYCRR 7.2 ). It would make little sense for Family Court to be permitted to appoint attorneys for children in child support cases to assist it in carrying out the purposes of the Family Court Act and then not permit those attorneys to file or respond to objections. Indeed, published opinions in other cases acknowledge that they have been permitted to do so (see Matter of K.A. v. M.S., 56 Misc.3d 1221(A), 2017 N.Y. Slip Op. 51113(U), 2017 WL 3927212 [Fam. Ct., Bronx County 2017] [child's attorney...