New York Family Law Blog
In Matter of Richard TT. (Kara VV.), the Appellate Division, Third Department, considered whether the Family Court of Schenectady County erred in proceeding with a neglect fact-finding hearing without the mother or her attorney present. The case involved important questions about a parent’s right to counsel in Family Court Act article 10 neglect proceedings, and the procedures that must be followed when assigned counsel seeks to withdraw. The decision also addressed how the failure to give proper notice of withdrawal can affect the validity of a neglect finding.
Background Facts
The mother and father were unmarried parents of four children born between 2003 and 2013. In July 2020, the Schenectady County Department of Social Services (DSS) received a report concerning the children. The children were removed from the parents’ care and placed in DSS custody. DSS filed separate neglect petitions against each parent under Family Court Act article 10.
The mother appeared at the initial appearance and at some later proceedings, but her attendance was inconsistent. She did attend the initial permanency hearing in March 2021 and the next hearing in September 2021. At that hearing, her attorney stated she had been doing a good job staying in touch.
In November 2021, the permanency hearing continued, but the mother did not attend. She also did not attend an adjourned date in December 2021. At that December appearance, her assigned counsel made an oral request to withdraw. Family Court granted the request immediately and proceeded without her attorney. The next day, the court held the neglect fact-finding hearing without the mother or counsel present and found neglect. The mother appealed, arguing her right to counsel was violated because her attorney withdrew without notice to her and without the court making the required inquiries.
Issue
The issue was whether the neglect finding against the mother should be reversed because her assigned counsel withdrew without giving her reasonable notice, and because the Family Court did not determine whether there was good cause for the withdrawal.
Holding
The Appellate Division reversed the neglect finding against the mother and sent the matter back for a new fact-finding hearing. The court held that the mother had both a constitutional and statutory right to counsel in the neglect proceeding, and that her attorney could withdraw only upon giving her reasonable notice. Because there was no indication that such notice was given, and the Family Court did not make the required inquiry, the neglect finding could not stand.
Rationale
The court explained that under both the federal and state constitutions, as well as Family Court Act §§ 261 and 262, a respondent in an article 10 neglect proceeding has the right to counsel. Once assigned, an attorney can withdraw only if the client receives reasonable notice under CPLR 321(b)(2). This requirement applies even if the party has been absent from court or there are claims of poor communication.
The record contained no proof that the mother knew her attorney planned to withdraw. The Family Court did not ask whether the attorney had given such notice or whether there was a valid reason for the withdrawal. In fact, the record showed that just two months earlier, counsel had described the mother’s communication as “excellent.” Testimony also indicated that the mother had recently moved closer to the children and had contacted the caseworker a few days before the November 2021 hearing.
Because the statutory right to counsel was violated, the court stated that the mother did not need to prove she was prejudiced. New York precedent holds that depriving a party of counsel in these circumstances is a denial of due process that requires reversal, regardless of the merits of the unrepresented party’s position. The court therefore reversed the neglect finding and ordered a new fact-finding hearing in compliance with the right to counsel provisions.
Conclusion
This case reinforces that in New York neglect proceedings, the right to counsel is guaranteed, and withdrawal by assigned counsel requires advance notice to the client and a court determination of good cause. A court cannot proceed to fact-finding in the absence of both the parent and their attorney unless the legal requirements for withdrawal have been satisfied.
The Appellate Division’s ruling in Matter of Richard TT. (Kara VV.) serves as a reminder that procedural safeguards must be followed in Family Court, even when there are challenges in a parent’s participation. Failing to provide proper notice of withdrawal and failing to inquire into the circumstances can lead to reversal of a neglect finding and a new fact-finding hearing.
If you are involved in a Family Court matter, especially one concerning allegations of neglect or custody, it is important to have knowledgeable representation at every stage. The process involves strict procedural rules, and the consequences of missed hearings or loss of counsel can be significant. A New York family lawyer at Stephen Bilkis & Associates can explain your rights, ensure you have proper legal representation, and help you navigate the court process. Contact our office to discuss your case and how we can assist you in protecting your rights and interests.