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Petitioner Requests That Court Appointed Attorney Be Relieved of Duties



The matter currently before the Court is a motion by the petitioner to have the Court appointed attorney for the child relieved of her duties. The petitioner brought the motion pro se. The subject child of the motion, was appointed law guardian for the child and submitted an affirmation in opposition. The Nassau County Legal Aid Society was appointed to represent the respondent. However, it does not appear as if the petitioner had the respondent served with her motion.

The underlying petitions in this matter were family offense petitions filed by the petitioner against the paternal uncle and the father. The petitions alleged that the uncle sexually abused the subject child, then three years old. The allegations against the respondent-father were that, in light of the fact that he lived in the same home as the seventeen year old uncle, he allowed the abuse to happen.

On August 28, 2007, stay-away orders of protection were issued against both respondents. On August 30, 2007, the Hon. Judge appointed an attorney for the child. On the next court date, September 4, 2007, child protective services reported that the report of a hospital was that there was a small abrasion and redness on the outside of the child’s vagina, but no internal lesions. As a result, the doctor concluded the injuries were not definitive findings of sexual abuse.

The respondent moved to have the family offense petition dismissed, arguing that sex offenses are not one of the delineated offenses in Family Court Act ยง812, and therefore cannot, alone, form the basis of a family offense petition. The application was denied at that time. However, on October 18, 2007, CPS submitted a report stating the case would be “unfounded”.

During the pendency of the family offense proceedings, petitioner served respondent with a custody petition. Another attorney was appointed for the child in the custody petitions. Subsequent to the dismissal of the family offense petitions, petitioner also filed new family offense petitions against the same parties. During the November 17, 2007 court appearance, counsel for respondent moved to dismiss the new family offense petitions, with the lawyer joining in the application, as the same incident served as the basis for the allegations. The petitions were dismissed.

For a motion to dismiss a law guardian to be successful, the movant must establish that the law guardian either has a conflict of interest or has failed to diligently represent the best interests of the child. The petitioner has not alleged a conflict of interest, so the Court need only to focus on whether the guardian diligently represented the interests of her client. As it is clear to the Court she has, this motion must be dismissed.

The petitioner’s complaints appear to be twofold. The first appears to be the petitioner’s belief that the appointed custodian failed to avail herself of all available information regarding the case and the child. The second is a more general complaint that while CPS completed its report, she failed to take steps to protect the child by seeking protective orders and by communicating information to the Court. Neither complaint has merit.

She submitted an affirmation in opposition which spelled out the efforts she made on behalf of her client. These include multiple court appearances, discussions with the petitioner, meeting the child, discussions with various members of child protective services, discussions with the Coalition Against Child Abuse and Neglect, discussions with the paternal grandparents, discussions with the child’s daycare provider and a review of the records provided by the hospital.

The Court believes what the petitioner found most upsetting was the custodian’s agreement to having the family offense petitions dismissed, despite the serious allegations contained therein. The Court is not surprised by a lay person’s consternation when hearing a lawyer appointed to represent their child agree to have a petition alleging someone sexually abused that child be dismissed.

Encouraging visitation between father and child was in the child’s best interests, and therefore a proper discharge of her duties as the child’s attorney. The petitioner clearly disagrees and sees the father as complicit with the alleged abuser of the child. That the mother disagrees with the attorney for the child does not represent a dereliction in duties by the attorney for the child.

For being sensitive in nature, family disputes should be referred to lawyers, who, by reason of their experiences can give an effective advice to the disputing members. You can consult our lawyers at Stephen Bilkis and Associates. We have offices to serve you throughout New York City, as well as Nassau County and Suffolk County.

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