This article will outline the background and history of the law guardian system, summarize the Task Force proposal and analyze the proposal\u27s effects. The intent is to present a synopsis of the issues addressed by the proposal, which has been forwarded to the Legislature for consideration during the 1992 session

Sobie, Merril

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Pace UniversityDigitalCommons@PacePace Law Faculty Publications School of Law5-1992The Meaningful Representation of Children: AnAnalysis of the State Bar Association Law GuardianLegislative ProposalMerril SobieElisabeth Haub School of Law at Pace University, MSobie@Law.Pace.eduFollow this and additional works at: http://digitalcommons.pace.edu/lawfacultyPart of the Family Law Commons, and the Juvenile Law CommonsThis Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace LawFaculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact cpittson@law.pace.edu.Recommended CitationMerril Sobie, The Meaningful Representation of Children: An Analysis of the State Bar Association Law Guardian LegislativeProposal, N.Y. St. B.J., May/June 1992, at 52, http://digitalcommons.pace.edu/lawfaculty/617/.HeinOnline -- 64 N.Y. St. B.J. 52 1992MERRIL SOBIE The Meaningful Representation of Children: An Analysis of the State Bar Association Law Guardian Legislative Proposal O n January 25, 1991 the New York State Bar Association House of Delegates approved and . adopted the final report and majority recom-mendations of the Association's Task Force on the Law Guardian System.1 The report's central recommenda-tion is legislation to improve and strengthen the system of affording representation to children who appear before the courts in a multitude of proceedings affect-ing their lives, including child abuse and neglect, cus-tody, delinquency, adoption, termination of parental rights, person in need of supervision and foster care review hearings. If the proposed legislation is enacted, administration and management of the system would continue, as at present, to be vested in the judicial branch of govern-ment. However, the Appellate Divisions would be granted increased flexibility and accountability in des-ignating and mcmaging law guardian panels. In addi-tion, a statewide director of law guardian services would be appointed to assume the current functions performed by the Office of Court Administration and coordinate the system within the judiciary and with the Legislative and Executive branches. In addition, the method of appointing attorneys in specific cases would be codified, and strengthened, and a statewide review and advisory committee would be established to moni-tor the overall system. This article will outline the background and history of the law guardian system, summarize the Task Force proposal and analyze the proposal's effects. The intent is to present a synopsis of the issues addressed by the proposal, which has been forwarded to the Legislature for consideration during the 1992 session. A. Background When the New York Family Court was established in 1962 the Legislature, in a pioneering move, provided for the appointment of counsel to represent children 52 who would appear before the new tribunal. 2 Coining the phrase "law guardian," a name whose origins are unclear, the statutes mandated the assignment of law-yers at state expense. Where a legal aid society pro-vided representation, such as in New York City and Erie County, representation would be by contract. In all other cases the Appellate Divisions would designate a panel of private attorneys for that purpose. Contracting responsibilities were subsequently statutorily trans-ferred to the Office of Court Administration, while panel representation continues to be an Appellate Divi-sion function (though the panel system is budgetarily dependent on the Office of Court Administration).3 Although in recent years the system has been ex-panded to encompass the Supreme and Surrogates Courts, and has grown exponentially in tandem with the children's law caseload, the statutory scheme first enacted in 1962 has remained virtually unamended. Administration is bifurcated between the Appellate Divisions and OCA, reports are neither mandated nor issued, and the appointment process itself is ad hoc within each county. Shortly after the inauguration of the State Bar Association's Committee on Juvenile Justice and Child Welfare in the late 1970s the Committee commissioned a comprehensive study of the system.4 Federal and private foundation funding was secured and the 1 Report and Recommendations of the Task Force on the Law Guardian System, d<lted November 9, 1990;theAssoci<ltion' s Executive Committee h<ld e<lrlier ummimously <lpproved the document. 2 See F<lmily Court Act Section 241 et. seq. 3 As the system hils exp<lhded, so h<lve the costs. In fisml1962less thm $100,000.00 W<lS spent for l<lw gu<lrdim services- in the current fisc<ll ye<lr the <lmount <lppropri<lted exceeds thirty million doll<lrs. 4 Bec<luse represent<ltion is <lfforded prim<lrily by the Juvenile Rights Division of the Leg<ll Aid Society in New York City, which hils <l documented record of effective represent<ltion, the City was excluded from the study. NEW YORK STATE BAR JOURNAL MAy/JUNE 1992 HeinOnline -- 64 N.Y. St. B.J. 53 1992resultant report, Law Guardians in New York State: A Study of the Legal Representation of Children, was approved and published by the Association in 1984.5 The 1984 study found and documented seri-ous deficiencies in the delivery of legal ser-vices. To cite but a few examples, in almost half the cases studied the law guardian had pro-vided inadequate representation and had come to the hearing with, at best, only minimal preparation. In over one-third of the cases the law guardian did not speak to the child during the court proceedings. In many cases the attor-ney had not even met with his child client. Appeals were virtually nonexistent. Law guardians were not offered any training and were not provided with any support services. Only one-quarter of the law guardians consid-ered themselves specialists in the field of children's law and seventy percent reported that they had been designated as law guardians without any screening, education or experience. These deficiencies were present throughoutthe state, in large counties and in small counties, in areas in which a legal aid society provided representation and in areas in which a private panel attorney provided representation. The study concluded that all too often the mandate for counsel resulted in "phantom repre-sentation." As a result of the study and conclusions, the State Bar Association recommended legislation to establish a "Law Guardian Office" within the Executive to estab-lish and administer a revised system. Other recommen-dations included the adoption of standards to represent children, the development of law guardian support services, and statutorily mandated reports and ac-countability requirements. In response, the Appellate Divisions and the Bar Association undertook several measures to improve the system. Each Appellate Division appointed a Law Guardian Director to oversee the system, and establish training programs for law guardians. The State Bar Association sponsored and subsequently published law guardian standards for representing children. The introduction of legislation was deferred in light of the efforts to enhance the representation of children. After the passage of three years, the Committee on Juvenile Justice and Child Welfare decided to commis-sion an independent follow-up study to measure the improvement and the then current status of representa-tion. The new study, prepared by the Institute of Judi-cial Administration at New York University School of Law, was completed in 1988.6 IJA found thatsq.bstantial progress had been made in training law guardians, in providing information to lawyers who represent chil-dren, and in administering the panels. However, the overall level of representation continued to be seriously NEW YORK STATE BAR JOURNAL MAy/JUNE 1992 < Professor of Law, Pace University School of Law. inadequate and there had been no improvement in the effectiveness of representation in individual cases. Lawyers were still ill prepared. To cite one additional example, an appellate practice had not yet developed. Further, the bifurcated system remained largely unac-countable. The follow-up study recommended that management teams be established in each county and further recommended that legislation was necessary to insure accountability and establish a cohesive system. B. The Task Force After reviewing the IJA report, the State Bar Associa-tion Executive Committee determined that an overall review should be commenced to recommend the future course of the law guardian system. Accordingly, in January 1989 a Bar Association Task Force was ap-pointed " ... to work with the courts and to develop court rules and, if necessary, legislative proposals designed to improve the quality of legal representation of children in our State."7 Following a thorough review and meetings with judges and administrators, includ-ing the four Presiding Justices, the Chief Administra-tive Judge and the Law Guardian Directors, the Task Force presented its report and recommendations to the House of Delegates in January 1991. 5 Co-authored by Jane knitzer and Merril Sobie, the report was approved by the Executive Committee on April 26, 1984. 6 Follow-up Report on Law Guardians in New York State: A Studyofthe Legal Representation of Children in 1987, dated May 1988. 7 Minutes, Executive Committee, Odober 27, 1988. 53 HeinOnline -- 64 N.Y. St. B.J. 54 1992C. The Task Force Proposal The Task Force unanimously agreed that in the past several years considerable progress has been achieved in several areas, including the training and screening of law guardians. It also unanimously concluded that the system should remain within the Judiciary, with the Appellate Divisions exercising primary responsibility for the delivery of legal services to children. Last, the Task Force unanimously agreed that comprehensive legislation was needed to modernize the thirty-year-old statutory pattern, improve the appointive process, streamline the bifurcated administration, infuse ac-countability, and encourage ongoing review. How-ever, the Task Force could not reach unanimity concerning the necessary administrative organization within the Judiciary to achieve these objectives. The legislation outlined below represents the view of a substantial Task Force majority.s The proposal is perhaps best summarized by outlin-ing the organizations which would be directly effected. These include the Appellate Divisions, the State Direc-tor of Law Guardian Services, the Trial Courts and the proposed Review and Advisory Board. 1. The Appellate Divisions. Each Appellate Division would, as at present, designate and administer panels of law guardians for each county. But the Appellate Divisions would be granted significant additional discretion in formulating and administering the 54 appropriate panels. For example, the Supreme and Surrogates Courts would be included and separate panels for specific types of proceedings would be per-mitted. In cases involving extraordinarily complex or lengthy litigation, an Appellate Division could com-pensate a law guardian in an amount greater than the rigid hourly rates provided in the Judiciary law. The Appellate Divisions would also be authorized to adopt law guardian rules and regulations and would be required to promulgate rules governing critical law guardian procedures, such as certification, appoint-ment, and grievance procedures. The proposed legislation would codify the position of Departmental Law Guardian Director and the directors would be granted wide statutory authority and responsibilities, including budgeting, oversight of law guardians, educational programs, payment to law guardians and administration. The directors would also have the ability and the mandate to provide sup-port services for law guardians . . 2. The State Law Guardian Director. Under the pro-posed legislation, a State Law Guardian Director, appointed by the ChiefJudge with the advice and consent of the Administrative Board, would assume the law 8 The minority presented an alternative legislative proposal which would vest complete administrative responsibility for the entire sys-tem in the Appellate Divisions. NEW YORK STATE BAR JOURNAL MAy/JUNE 1992 HeinOnline -- 64 N.Y. St. B.J. 55 1992guardian administrative responsibilities now exercised by the Office of Court Administration. The Director would enter into and monitor agreements for organizational representation, prepare and implement a state budget and approve vouchers. The State Director, with the departmental law guardian directors, would evaluate services and adopt a law guardian plan for each county. Last, the Director would be the principal spokesperson for the system, would report and be held accountable, and would coordinate the system within the judiciary and with essential Legislative and Executive agencies. 3. The Trial Courts. The current statute governing the appointment of individual law guardians, Family Court Act Section 249, would be amended. The section would be broadened to include appointments by the Supreme and Surrogates Courts, thus incorporating recent legis-lation providing for such appointment. Absent extraordinary circumstances, the Courts would be re-quired to appoint law guardians on a rotational basis. The provision, coupled with the provision for special-ized panel designations by the Appellate Divisions, is designed to insure that judges appoint appropriate law guardians on a fair and equitable basis. Additionally, the assignment of an attorney to represent a child would be extended to include important collateral pro-ceedings, such as a habeas corpus writ or a stay, and relevant subsequent proceedings, such as modification or enforcement. 4. The Review and Advisory Board. The final struc-tural provision is the establishment of a statewide Review and Advisory Board. Members would be ap-pointed by the Chief Judge, upon nomination by the Presiding Justices, the Governor, the State Bar Associa-tion President, and Legislative leaders. Members would not be compensated, although the Board would maintain a small paid staff. The Review and Advisory Board would have no operational or administrative authority. Its functions would be limited to review and advice. Its establish-ment is modeled upon the successful Department Law Guardian Advisory Committees and similar state enti-ties, such as the State Council on Children and Families. D. The Proposal's Goals The over-arching objective is to provide meaningful representation to children. There of course exists no IJ quick fixlJ to instantly achieve consistently meaning-ful representation. But the legislative proposal, if en-acted, would establish a structure and a statutory mandate to rationalize and improve the law guardian system. Minimumstandards would be established by Court rule, the mechanism for appointing attorneys in individual cases would be clarified and improved to ensure, or at least maximize, the assignment of compe-tent counsel on a fair basis, case continuity would be provided, and a more flexible system introduced. Spe-cific plans for providing representation for each county NEW YORK STATE BAR JOURNAL MAy/JUNE 1992 WE TRACK THEM DOWN-OR! YOU DON'T PAY When witnesses, defendants, beneficiaries, insureds, policy holders, debtors, have moved and left no forwarding address, we track them down on a world-wide scale. And if we don't find your person, you don't pay. Global's basic charge for a trace when the last known add ress is three years old or less is $195. Call for more information or to start a trace today. 1-800-882-5889 Toll Free FAX: 206-671-2204 9 a.m.-7:30 p.m. EST 6 a.m.-4:30 p.m. PST Established In 1967 © would be man-dated; for the first time each of the state's di-verse counties would be com-prehensively surveyed so that a specific need could be ad-dressed. Train-ing and support services, such as social work and investigatoryas-sistance, would be mandated. A statewide Direc-tor, appointed by the Adminis-trative Board, would oversee organiza tional representation and become the spokesperson for the system's needs. Continu-ing progress would be achieved, or at least en~oliraged, through reports and accountability mechanisms, as well as the establishment of a statewide Advisory Board. The intent is to accomplish these goals while maintain-ing the system within the judiciary. Thus the Appellate Divisions would continue to administer the system of panel representation, but would gain the flexibility of specialized panels. The trial courts would continue to appoint counsel in individual cases. County plans would be tailored to the needs of each locality. Theproposalis not radical, but one designed to build upon and improve the present system. Conclusion The Law Guardian System is essential to the tens of thousands of children who are assigned counsel each year. Begun as an experiment in 1962, the system has expanded exponentially. The Bar Association legisla-tive proposal would enable the Appellate Divisions, the Chief Judge and the trial courts, including the Family Court, to further improve the system and to provide a higher level of meaningful representation throughout the State. Enactment would represent the culmination of a decade of studies and provide sub-stantial benefits to New York's children. 55 

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