PART 2 OF A 2-PART SERIES ON ACS AND FAMILY COURT

FAMILY COURT: WHAT TO EXPECT AT YOUR FIRST APPEARANCE

(Article published in HWW June 2008)

by Eileen Choi, Law Graduate, Brooklyn Family Defense Project

If you receive a letter or phone call from the Administration for Children's Services telling you to come to Family Court on a certain day, it probably means that ACS has filed a petition against you. This article will explain how a petition is filed, and what to expect your first day in court.

After an ACS caseworker has investigated your case, he or she may consult lawyers who work for ACS. These lawyers may file an "Article 10" petition in Family Court, alleging facts that could constitute neglect or abuse. The name "Article 10" comes from the section of the Family Court Act, the law that governs these cases. It is ACS's burden to prove that the allegations in the petition are true, and that such facts constitute neglect or abuse. However, proving or disproving these allegations doesn't occur the first day you are in court. These allegations will be dealt with on a much later date, at a "fact finding" hearing.

There are at least three parties to a petition: the petitioner (ACS); the respondent (parent or "person legally responsible" such as step- parent, relative, boyfriend or girlfriend, or someone that also helps care for your child); and the subject child or children.

On your first day in court, the court will assign you an attorney if you are financially eligible for free legal counsel. The attorney will be either a private "18B" attorney (that is, private attorneys provided by Family Court to handle cases) or an attorney from one of three non-profit legal services serving Brooklyn, the Bronx, and Manhattan: Brooklyn Family Defense Project, Bronx Defenders, and Center for Family Representation.

If the other birth parent or a "person legally responsible" is also named as a respondent, that person will also be appointed his or her own attorney. If both you and the other respondent share the same interests, having separate attorneys shouldn't affect those interests. On the other hand, where you and the other respondent may have different needs or goals (for example, if there is a history of domestic violence between you), these separate attorneys serve an important function because your attorney will advocate solely for you.

Your child will also have his or her own attorney, called a "law guardian," usually provided by Legal Aid Society (sometimes an 18B attorney is assigned). The law guardian will need to interview your child so he or she could effectively represent your child's position. Your case may move along more positively if the law guardian gets to know your child. Try to dissuade your child's fears if he or she is shy or scared to talk to someone they don't know, and remind your child to always be honest.

At your first court date, you will need to make several choices. First, you must decide whether or not you will accept "service." A copy of your petition should have been given to you before you arrive in court. However, this almost never happens-usually parents are in Family Court because of a phone call or even a post-it note on your door. Your attorney may advise you to "accept service" so that your case can move forward. Otherwise, your case will be delayed and you will have to come back to court another day.

Next, and the most important decision to be made, is where your children will be. Sometimes, ACS may recommend that your children be "paroled" to you, meaning they remain in your care with conditions attached. For example, if ACS is alleging that you abuse drugs, a condition of your child remaining with you could be random drug screening, or immediate drug treatment. If the allegation is excessive corporal punishment, ACS may require parenting skills or anger management classes. If you have concerns meeting these conditions, your attorney may either negotiate with ACS or oppose ACS's conditions while in front of the judge if a proposed condition is inappropriate.

If ACS does not recommend a parole, they will be seeking a "remand," which means foster care. ACS seeks removal of a child if they believe that there is an "imminent risk of harm" in your care, that the risk of harm outweighs the likely trauma to the child of removal, and that ACS has made "reasonable efforts" to allow the child to remain safely in the home.

You have a right to request a "1027" hearing to oppose the remand, and seek to have your child returned in your care that day. You also have a right to request a "1028" hearing, which means your case will be heard three days from the date that you request it.

While your inclination may be to exercise your 1027 or 1028 right to an immediate hearing because not having your child with you is frightening, your attorney may advise you to reserve your right for strategic reasons. First, you only have one chance to exercise this right -- if you lose, you cannot ask for another hearing again. Your attorney will have just met you, and he or she will not know how well you could testify or what kind of evidence ACS has against you. Further, if ACS's position is that the child could be returned to you once specific services are in place (for example, drug treatment), it would be wise to reserve that right once you've strengthened your own position.

If you "consent" to a remand at your first court appearance ("consent" means that you do not request the 1027 or 1028 hearing -- it doesn't mean that you personally agree with the remand) then your attorney will ask you about relatives or friends in New York that your child could stay with during this time so as to avoid your child being placed into stranger foster care.

Another issue that you and your attorney will discuss is a visiting schedule. ACS may request that visits be supervised at the agency. However, your attorney could request that visits be less restrictive or more frequent if there are no safety concerns. You may be asked to provide names, date of births, and phone numbers of people who are potential foster parents or visiting hosts, as they will have to be "cleared" by ACS (meaning they themselves do not have an ACS case or have a criminal record) and their homes will also have to be checked out.

After this first court date, subsequent court appearances called "status conferences" will follow. At these status conferences, ACS may provide favorable or unfavorable reports about you (for example, the status of your drug treatment). Your attorney may also make applications on your behalf, such as increasing your visit time to allow overnight visits.

Eventually, your case will reach the "fact-finding" stage. After fact-finding, if there is no finding of neglect, your case is finally resolved. If there is a finding of neglect, there will be "dispositional hearing" where a court orders you to engage in services. If the children are not in your care, your case will continue to be heard through "permanency hearings" until your children are reunited with you which is often contingent on your completion of services. It is also possible that your case may settle or be dismissed and never reach the fact-finding stage.

Since your first appearance will probably be chaotic, make sure you exchange phone numbers with your attorney and set up a meeting to have a more meaningful discussion about your case. You may also want to reach out to others during this critical time. The Child Welfare Organizing Project (212-348-3000) and the Brooklyn Young Mother's Collective (718-596-7074) have been valuable resources to parents, whether you need to simply talk to someone or would like to become better informed by attending educational trainings. You may feel powerless, but remember: you know and care about your family more than anyone else in that courtroom, so take charge of your case by actively engaging in the legal process and taking fullest advantage of the available resources.