Joint Opinion 07-78 and 07-121

September 6, 2007

Digest:         A Family Court judge who also presides in a Problem Solving Court is not required to exercise recusal when a party appearing in the Family Court also appeared before the judge in a Problem Solving Court, unless the judge believes that he/she cannot be impartial, or he/she becomes a fact witness in the Family Court proceeding as the result of presiding in such Problem Solving Court proceedings.

Rules:          Social Services Law §384-b(7)(a); Family Court Act Art. 10; Art. 10-a; Family Court Act §§ 1022, 1027, 1028, 1089; Judiciary Law §14; 22 NYCRR 100.3(E); 100.3(E)(1)(a)(i), (ii); People v. Moreno, 70 NY2d 403 (1987).

Opinion:

         Two Family Court judges who also preside in Problem Solving courts ask about the ethical implications of serving in both capacities.

         The first Family Court judge also presides in the Drug Court. The judge advises that the vast majority of Drug Court participants are parents of children found by Family Court to be neglected who hope to retain or regain custody of their children by successfully completing Drug Court. In addition to the Judge, the Drug Court team also includes treatment providers, the Drug Court coordinator, an attorney from the Department of Social Services (DSS), and DSS caseworkers. The Drug Court team meets weekly to discuss each participant’s progress, after which the judge presides over a proceeding on the record to praise, admonish, sanction and/or give directions to each individual participant.

         Some parents who participate in the Drug Court program are or will be named as respondents in Family Court permanency or other hearings pursuant to Article 10 or Article 10-a of the Family Court Act, or proceedings to terminate their parental rights. In deciding these matters, the Court must evaluate DSS’s efforts in assisting a parent to continue or regain custody of his/her children. When a parent has participated in Drug Court, the DSS offers evidence of how it supported such participation, to support its contention that DSS representatives made diligent or reasonable efforts to preserve the parent/child relationship.

         The judge asks if there is any ethical impropriety if he/she determines in a later Family Court Proceeding the issue of whether DSS’s efforts, on behalf of a parent who unsuccessfully participated in Drug Court, were diligent and reasonable, in light of the fact that the judge had also been a member of the Drug Court Team that worked with the parent.

         The second Family Court judge also presides in a Family Treatment Court (Treatment Court) that serves respondents who have substance abuse issues, within the context of Family Court Act Article 10 Neglect proceedings. The Treatment Court team of professionals, including the judge, meets weekly to discuss the status of pending cases and to recommend how those cases should proceed. The judge advises that the Treatment Court Policy and Procedure Manual states that when a respondent is terminated or discharged from the Treatment Court, his/her case is returned to the original Family Court Judge. One such respondent has asked the inquiring judge to recuse him/herself because the judge is “privy to the respondent’s history in Family Treatment Court.” The judge indicates that he/she can remain impartial, but seeks the Committee’s guidance as to whether this situation nevertheless warrants disqualification.

         Although the first judge characterizes him/herself as one member of the Drug Court Team, a judge’s role in Drug Court is no different from a judge’s role in other courts. He/she still must objectively and impartially evaluate a participant’s progress in the Drug Court. Therefore, the judge’s role and responsibilities as a Drug Court Team member are different and distinct from those of the DSS representatives. Similarly, in Family Court proceedings, the judge must impartially and objectively determine whether DSS has met its statutory burden to prove it made diligent or reasonable efforts to preserve the parent/child relationship, while DSS, as the petitioner, must offer evidence to establish that its employees did meet that burden. Social Services Law §384-b(7)(a); Family Court Act §§ 1022, 1027, 1028, 1089. When presiding in the Family Court, the judge is evaluating the DSS’s efforts on behalf of the parent who also participated in Drug Court, and not those of the Drug Court Team as a whole. It is the Committee’s view , therefore, that the judge’s role in the Drug Court does not mandate disqualification whenever an unsuccessful Drug Court participant later appears before the judge in Family Court.

         To avoid the concerns that appear to prompt this inquiry, it might be advisable for a judge in the situation of the first inquirer to include general wording in the standard contract that respondents sign, reflecting an understanding that the same judge may preside in both matters and, if so, that the information available in the treatment and/or drug court settings can be raised and considered in the Family Court proceeding as well.

         With respect to the second judge who presides in both Treatment Court and Family Court, the fact that he/she is privy to the respondent’s history in the Treatment Court also does not, in and of itself, require the judge’s disqualification. This situation is not unlike that of a criminal court judge who presides over a pre-trial hearing to determine the admissibility of evidence at trial and subsequently serves as the finder of fact at trial with full knowledge of the evidence previously deemed inadmissible. See People v. Moreno, 70 N.Y.2d 403 (1987). Family Court Judges also often hear factual allegations and claims, sworn and unsworn, in pre-hearing settings, and thereafter sit as the ultimate trier of fact in the same case.

         Unless disqualification is mandated pursuant to the Rules Governing Judicial Conduct [22 NYCRR 100.3(E)] or Judiciary Law § 14, the trial judge "is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the

court . . . " People v. Moreno, Id. at 405. If either judge cannot be impartial in a particular case based on the knowledge he/she gained from the prior proceedings in the Problem Solving Court, then he/she must exercise recusal. 22 NYCRR 100.3(E)(1)(a)(i).

Unlike a lay jury, a Judge “by reasons of * * * learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination” based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision (People v Brown, 24 NY2d 168, 172). Recognizing this key premise, “it suffices to say that there is no prohibition against the same Judge conducting a pretrial hearing as well as the trial itself” (People v De Curtis, 63 Misc 2d 246, 249 [App Term], affd 29 NY2d 608 [suppression hearing Justice not disqualified from presiding over nonjury trial]; see also, People v Brown, 24 NY2d 168, supra [Huntley hearing Justice may preside over nonjury trial]; People v Latella, 112 AD2d 324 [Sandoval hearing Judge not disqualified from presiding at nonjury trial]).

In addition, should either judge become a fact witness in a Family Court proceeding because of his/her involvement in the Problem Solving Court, he/she must exercise recusal. 22 NYCRR 100.3(E)(1)(a)(ii).