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In re Jalicia G.

Family Court, Bronx County

September 12, 2013

In the Matter of Jalicia G., A Child under Eighteen Years of Age Alleged to be Neglected by Jacquelin G. and Randolph W., Respondents.

Alan W. Sputz, Esq. Special Assistant Corporation Counsel Administration for Children's Services Family Court Legal Services Bronx Family Court

By:Siobhan McHale, Esq. Aleeza Ross, Esq. Counsel for Jacquelin G.

Erin Miles, Esq. The Bronx Defenders Counsel for Randolph W.

Patricia Nevergold, Esq. Legal Aid Society, Juvenile Rights Practice Bronx, NY 10451 Attorney for the Child

Erik Pitchal, J.

Now pending before the court is the respondent Jacquelin G.'s motion to disqualify the Legal Aid Society ("LAS") from representing the subject child in this child protective proceeding. For the reasons that follow, the motion is denied.

Procedural Background

This case has a complicated procedural history, of which only a portion is relevant to the instant motion. On or about April 25, 2012, the Administration for Children's Services ("ACS") filed a petition pursuant to Article 10 of the Family Court Act alleging that the respondents, Jacquelin G. and Randolph W., neglected their daughter Jalicia, who was then approximately 17 months old. Jalicia was assigned an attorney from the Bronx office of the LAS Juvenile Rights Practice, Patricia Nevergold; Mr. W. was assigned an attorney from the Family Court practice of the Bronx Defenders, Erin Miles; and Ms. G. was assigned an attorney from the Bronx Family Court 18-B panel, Edward Arfe.

The case was initially heard by Hon. Kelly O'Neill-Levy, before whom a fact-finding hearing commenced on or about July 23, 2012. In the middle of the trial, Mr. Arfe requested to be relieved, due to an irreparable breakdown in communication between himself and his client. Judge O'Neill-Levy granted this request, declared a mistrial as to Ms. G., and assigned Aleeza Ross as Ms. G.'s new attorney. Judge O'Neill-Levy completed the fact-finding as to Mr. W. in January 2013. [1]

On or about January 23, 2013, Ms. G.'s case was transferred to this Court. Fact-finding re-commenced on May 10, 2013, and a permanency hearing was held the same day. On May 10 Ms. G. also requested the immediate return of the child. As there is no statutory provision or caselaw restricting the right of a respondent to request a § 1028 hearing prior to the completion of fact-finding even though a fact-finding has already commenced, the Court agreed to conduct a § 1028 hearing. The § 1028 hearing began on May 17 and was continued to May 21. On May 21 Ms. G. testified on her own behalf, and by way of background noted that she herself had been in foster care from the age of 12 to the age of 21. (She gave birth to Jalicia when she was 23 and was 24 when this case commenced.)

As the Court is aware that most foster children in New York City are represented by LAS, the Court was concerned that LAS might have represented Ms. G. when she was in ACS custody and that, if so, it might be a conflict of interest for LAS to represent her daughter now. Ms. G. reported that before she was placed in foster care, she had lived with her family in Queens. Thus, the Court halted the § 1028 hearing and while on the record queried the UCMS database for Queens Family Court. The Court learned that Ms. G. had indeed been the subject child of an Article 10 proceeding in that court, during which time she was represented by Nadia Seerantan, who, it was later ascertained, had been a staff attorney in the Queens office of the LAS Juvenile Rights Practice at the time. Ms. Ross reported that when she took over the case from Mr. Arfe, she was not made aware of the fact that her client had previously been represented by LAS. Ms. Nevergold stated that when she was assigned Jalicia's case on or about April 25, 2012, she was not aware that Ms. G. had been in foster care, let alone been represented previously by LAS; indeed, she was told by her office that there was "no conflict" and she could pick up the case.

This motion to disqualify LAS followed. The order to show cause was heard on June 6, at which time LAS requested additional time to respond in writing. That request was granted, and a briefing schedule was set. [2] LAS, appearing by Ms. Nevergold's supervisor Dawne Mitchell, filed its opposition papers on or about June 13; Ms. Ross filed a reply on or about June 17; and a further hearing on the motion was conducted on June 18. ACS did not file papers and indicated it supports LAS in this motion. Respondent W. did not participate in the motion. The Court reserved decision. [3]

Factual Findings

The following facts relevant to the motion are undisputed. The salient facts were elicited via the papers and colloquy with counsel at motion hearings on June 6 and 18; because they are not in dispute (see 6/18/13 Tr. at 13-14), no evidentiary hearing was conducted. Ms. G. was in foster care from the age of 12 to 21, from November 1999 until July 2008, pursuant to an Article 10 case in Queens Family Court. During that time period, she was assigned an attorney from the LAS Queens Juvenile Rights Practice, who represented her in the Family Court proceedings. There were three LAS staff attorneys assigned to her case during this period: Renee Mitler, Nadia Seerantan, and Tara Famular. Ms. Mitler now works in the LAS Manhattan office, and Ms. Famular remains in Queens, but Ms. Seerantan is no longer employed by LAS. The LAS representation of Ms. G. in Queens ceased on or about May 19, 2008. Ms. G. does not recall ever having an attorney as part of her foster care case.

Approximately one month after it closed its Queens case for Ms. G. in 2008, LAS sent its hard file for the case to its archival service. In order for LAS staff in one borough office to obtain archived files that originated in another borough, the originating borough supervisor would have to be notified and agree to the request. No ...


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