Elianne M., Matter of

• Decision Date: 12 August 1993
• Citation: 196 A.D.2d 439,601 N.Y.S.2d 481
• Parties: Commissioner of Social Services of the City of New York, Petitioner-Respondent, In the Matter of ELIANNE M., etc., et al., Appellants, Children Alleged to be neglected by Stephanie B., Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 481

601 N.Y.S.2d 481

196 A.D.2d 439

Commissioner of Social Services of the City of New York, Petitioner-Respondent, In the Matter of ELIANNE M., etc., et al., Appellants, Children Alleged to be neglected by Stephanie B., Respondent-Respondent.

Supreme Court, Appellate Division, First Department.

Aug. 12, 1993.

Before MILONAS, J.P., and ROSENBERGER, RUBIN and NARDELLI, JJ.

MEMORANDUM DECISION.

Order, Family Court, Bronx County (Cira Martinez, J.), entered on or about February 8, 1993, which denied the application of the Law Guardian to be relieved and denied the application of the child Elianne M. to permit the law firm of Sullivan & Liapakis to be substituted as counsel, unanimously reversed, on the law, the Law Guardian's application to be relieved is granted and the law firm of Sullivan & Liapakis is substituted as counsel, and the matter is remitted to the Family Court for further proceedings, without costs.

The Family Court erred in denying the Law Guardian's motion to be relieved and the child's application for substitution of counsel. Family Court Act §§ 241, 249(a) specifically provide for representation of a child by counsel of his or her own choosing. Children are entitled to counsel of their choice because it is their interests that are at stake (see, Matter of Fargnoli v. Farber, 105 A.D.2d 523, 481 N.Y.S.2d 784 appeal dismissed 65 N.Y.2d 631, 491 N.Y.S.2d 158, 480 N.E.2d 746).

The Law Guardian's role is to provide assistance of counsel to help protect the interests of minors who are the subject of Family Court proceedings and "to help them express their wishes to the court" (Family Ct. Act § 241; see also, Matter of Scott L. v. Bruce N., 134 Misc.2d 240, 242, 509 N.Y.S.2d 971). Where, as here, both the Law Guardian and the teenage child have explicitly expressed their failure to communicate, the child has indicated her lack of trust in her appointed representative, her fear that this representative will not effectively communicate her wishes to the court and her belief that the Law Guardian has been influenced by her adoptive mother, the proper course was to relieve the Law Guardian and permit substitution of counsel of the child's choosing.