Bill Text: NY A06905 | 2011-2012 | General Assembly | Introduced
Bill Title: Relates to attorneys for children in family court proceedings and the reassignment of such attorneys.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced - Dead) 2012-01-04 - referred to judiciary [A06905 Detail]
Download: New_York-2011-A06905-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
6905
2011-2012 Regular Sessions
I N A S S E M B L Y
April 5, 2011
___________
Introduced by M. of A. KELLNER -- read once and referred to the Commit-
tee on Judiciary
AN ACT to amend the family court act, in relation to attorneys for chil-
dren
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 249 of the family court act, as amended by chapter
2 41 of the laws of 2010, is amended to read as follows:
3 S 249. Appointment of attorney for child. (a) In a proceeding under
4 article three, seven, ten or ten-A of this act or where a revocation of
5 an adoption consent is opposed under section one hundred fifteen-b of
6 the domestic relations law or in any proceeding under section three
7 hundred fifty-eight-a, three hundred eighty-three-c, three hundred
8 eighty-four or three hundred eighty-four-b of the social services law or
9 when a minor is sought to be placed in protective custody under section
10 one hundred fifty-eight of this act, the family court shall appoint an
11 attorney to represent a minor who is the subject of the proceeding or
12 who is sought to be placed in protective custody[, if independent legal
13 representation is not available to such minor]. In any proceeding to
14 extend or continue the placement of a juvenile delinquent or person in
15 need of supervision pursuant to section seven hundred fifty-six or 353.3
16 of this act or any proceeding to extend or continue a commitment to the
17 custody of the commissioner of mental health or the commissioner of
18 mental retardation and developmental disabilities pursuant to section
19 322.2 of this act, the court shall not permit the respondent to waive
20 the right to be represented by [counsel chosen by the respondent,
21 respondent's parent, or other person legally responsible for the
22 respondent's care, or by] assigned counsel. In any other proceeding in
23 which the court has jurisdiction, the court may appoint an attorney to
24 represent the child, when, in the opinion of the family court judge,
25 such representation will serve the purposes of this act[, if independent
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00395-01-1
A. 6905 2
1 legal counsel is not available to the child]. The family court on its
2 own motion may make such appointment.
3 (b) In making an appointment of an attorney for a child pursuant to
4 this section, the court shall, to the extent practicable and appropri-
5 ate, appoint the same attorney who has previously represented the child.
6 Notwithstanding any other provision of law, in a proceeding under arti-
7 cle three of this act following an order of removal made pursuant to
8 article seven hundred twenty-five of the criminal procedure law, the
9 court shall, wherever practicable, appoint the same counsel who repres-
10 ented the juvenile offender in the criminal proceedings.
11 (C) IN MAKING AN APPOINTMENT OF AN ATTORNEY FOR A CHILD PURSUANT TO
12 THIS SECTION, THE COURT SHALL APPOINT SUCH COUNSEL THAT:
13 1. SHALL NOT BE AFFILIATED PERSONALLY OR FINANCIALLY WITH EITHER
14 PARENT OF SUCH MINOR;
15 2. SHALL NOT SUBSEQUENTLY BE EMPLOYED, HIRED OR CONSULTED BY EITHER
16 PARENT OF SUCH MINOR; AND
17 3. WHERE THE PARENTS OF SUCH CHILD CAN AFFORD TO PAY FOR SUCH REPRE-
18 SENTATION, SHALL BE COMPENSATED BY FUNDS DEPOSITED TO THE FAMILY COURT
19 IN A MANNER TO BE DETERMINED BY THE CHIEF ADMINISTRATOR OF THE COURTS
20 PURSUANT TO SECTION TWO HUNDRED TWELVE OF THE JUDICIARY LAW.
21 S 2. Section 249-a of the family court act, as amended by chapter 41
22 of the laws of 2010, is amended to read as follows:
23 S 249-a. Waiver OR REASSIGNMENT of counsel. (A) A minor who is a
24 subject of a juvenile delinquency or person in need of supervision
25 proceeding shall be presumed to lack the requisite knowledge and maturi-
26 ty to waive the appointment of an attorney. This presumption may be
27 rebutted only after an attorney has been appointed and the court deter-
28 mines after a hearing at which the attorney appears and participates and
29 upon clear and convincing evidence that:
30 [(a)] 1. the minor understands the nature of the charges, the possible
31 dispositional alternatives and the possible defenses to the charges,
32 [(b)] 2. the minor possesses the maturity, knowledge and intelligence
33 necessary to conduct his or her own defense, and
34 [(c)] 3. waiver is in the best interest of the minor.
35 (B) A MINOR WHO IS THE SUBJECT OF A JUVENILE DELINQUENCY OR PERSON IN
36 NEED OF SUPERVISION PROCEEDING, AFTER APPEALING TO THE JUDGE FOR A REAS-
37 SIGNMENT OF AN APPOINTED ATTORNEY, MAY APPEAL, IN A MANNER TO BE DETER-
38 MINED BY THE CHIEF ADMINISTRATOR OF THE COURTS PURSUANT TO SECTION TWO
39 HUNDRED TWELVE OF THE JUDICIARY LAW, TO THE ADMINISTRATIVE BOARD OF THE
40 JUDICIAL CONFERENCE FOR A NEW APPOINTED ATTORNEY.
41 S 3. Subdivision (c) of section 1120 of the family court act, as
42 amended by chapter 41 of the laws of 2010, is amended to read as
43 follows:
44 (c) An appellate court may appoint an attorney to represent a child in
45 an appeal in a proceeding originating in the family court where an
46 attorney was not representing the child at the time of the entry of the
47 order appealed from or at the time of the filing of the motion for
48 permission to appeal [and when independent legal representation is not
49 available to such child].
50 S 4. This act shall take effect immediately.
