Opinion 17-185

January 24, 2018

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         Where a Family Court judge has a remittable conflict in a neglect proceeding, remittal of disqualification requires the consent of all parties and statutorily defined “interested persons” who have appeared and not defaulted in the proceeding. Remittal is not available if any party or interested person appears without counsel. However, remittal does not require the consent of an interested person who fails to appear or participate in the case.

Rules:          Family Court Act §§ 262; 1035(d)-(f); 1017(1)(a); 1092(f); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 101.1; Opinions 17-150; 17-113; 14-78; 14-10; 13-64.

Opinion:

         A Family Court judge asks if the usual remittal process applies to certain non-parties in neglect proceedings who are deemed “interested parties” under the Family Court Act.¹ In particular, the judge asks if disqualification can be remitted when the “interested party” appears without counsel.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself from any proceedings where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         However, when no party is appearing without counsel, a judge’s disqualification is often subject to remittal.² Under 22 NYCRR 100.3(F) and our prior opinions, remittal is a three-step process. First, the judge must fully disclose the basis for disqualification “on the record” (22 NYCRR 100.3[F]). Second, “the parties who have appeared and not defaulted and their lawyers” must “all agree” (id.), without the judge’s participation, that the judge should not be disqualified. Third, the judge must independently conclude that he/she “will be impartial and is willing to participate” in the case (id.). If all three steps are satisfied, the judge may accept remittal of his/her disqualification, and the agreement of the parties and their attorneys “shall be incorporated in the record of the proceeding” (id.; see also e.g. Opinion 17-113 [outlining each step of the remittal process]).

         The present inquiry focuses on our longstanding requirement that remittal is not available if any party is appearing without counsel (see e.g. Opinion 13-64).

         The Family Court Act defines several categories of “interested persons” who are entitled to notice of a child protective proceeding and may have the right to appear and participate in the proceeding as an “interested party intervenor” or otherwise. Thus, for example, an interested party in a child protective proceeding includes a parent who is not named as a respondent (see FCA § 1035[d]). A non-respondent parent is entitled to written notice of his/her rights and information about the judicial process. The notice advises the parent of his/her right to appear and participate in the fact-finding for the purpose of seeking release or custody of the child or to seek enforcement of visitation rights, and to participate in the dispositional hearing. The notice also advises the parent of his/her right to have counsel assigned free of charge (see FCA § 1035[d]-[e]). An interested party may also include “the child’s adult sibling, grandparent, aunt or uncle” (FCA § 1035[f]), as well as certain “relatives or suitable persons” described in FCA § 1017(1)(a). Such persons are notified of the petition “as a possible resource to care for the child,” and the notice advises them of their right to be heard regarding placement, custody and guardianship, of their right to seek to be approved as a foster parent, or to have the child temporarily reside with them and to provide free care for the child.³

         In each scenario, a statutorily-defined interested person must take affirmative steps to participate in the proceedings before the court. There is no requirement that interested parties appear or participate in any proceedings before the court, and the court may proceed without their participation.

         In the event that an interested party appears and wishes to participate, the court has wide discretion to assign counsel (FCA § 262). If counsel is assigned or retained, then remittal is available as set forth above. If, however, an interested party appears and intends to participate in the proceeding, but does not seek or retain legal counsel, then remittal is not available (see Opinion 14-10).

         We have previously advised in Surrogate Court proceedings that, if an interested party has defaulted because of non-appearance or non-participation in the proceeding, the Surrogate is not ethically required to inform the defaulting party of the basis of the disqualification and is not ethically required to obtain the consent of the defaulting party (see Opinion 14-78).

         The same holds true in the Family Court. If the interested party has defaulted, the court is not ethically required to inform the defaulting party of the disqualification and to obtain their consent.

         We cannot comment on legal questions, such as who is an “interested person,” “interested party,” or “party” in a particular proceeding, and whether they are in default (see 22 NYCRR 101.1).

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¹ The inquiring judge uses the term “interested party,” which we understand to refer primarily to the “interested persons” in FCA § 1035 who may be entitled to intervene or participate in the proceeding for certain purposes (see FCA § 1035[d]-[f]).

²The Rules prohibit remittal where the judge: (1) has a personal bias or prejudice concerning a party; (2) knows that he/she served as a lawyer in a matter in controversy; (3) knows that he/she served as a material witness concerning the matter in controversy; or (4) knows that a judge or the judge’s spouse or a person known by the judge to be within the sixth degree of relationship to either of them or the spouse of such person, is a party to the proceeding (see Opinion 13-64; 22 NYCRR 100.3[F]). The Committee also prohibits remittal when a party is appearing without counsel (see Opinion 13-64) or when a judge’s second-degree relative personally appears in the courtroom as counsel or a likely material witness in a case (see Opinion 17-150). Under such circumstances, the judge must simply disqualify him/herself, regardless of the parties’ wishes.

³ The term “interested adult” is also defined as “a person or persons over the age of 18 other than a parent or caretaker who at relevant times has had responsibility for the day to day care of a child alleged or adjudicated to be destitute” (FCA § 1092[f]).