Opinion 18-100

June 21, 2018

Digest:        A judge who appoints CASA to provide information on cases pending before the court may not serve as a member of CASA’s advisory board.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(a)(I)-(ii); Opinions 15-201; 15-190; 07-161; Matter of Evan E., 114 AD3d 149 (3d Dept 2013).

Opinion:

         The inquiring Family Court judge asks if he/she may serve on an advisory council for Court Appointed Special Advocates (CASA). CASA’s mission is to support and promote “court-appointed volunteer advocacy so every abused or neglected child in the United States can be safe, have a permanent home and the opportunity to thrive.” The local program director says the advisory council will gather input on how to use its volunteers to serve the best interests of the children on its cases. The advisory council would meet quarterly to keep all members advised about CASA and discuss and/or resolve any issues that may come up on cases. The advisory council’s membership includes the chief court clerk, the executive director of an organization that represents children, a probation officer, a private practitioner who represents children and parents, a caseworker, a CASA volunteer, the executive director of the local dispute resolution center, and the CASA program director.

         The inquiry says a local CASA volunteer must: (1) “Concern him/herself with the child’s best interest and monitor the child’s progress in foster care,” (2) “Investigate to discover all important facts about a case,” (3) “Facilitate a working relationship among all involved parties,” (4) “Monitor and/or coordinate court orders,” and (5) “Present the court with a written report,” intended to independently assess “the child’s situation which will aid the judge in decisions regarding the child’s future.”

         This judge appoints CASA a few times per year, with consent from the parents and their attorneys, typically in a Family Court Article 10 proceeding post-disposition, after a finding of child abuse or neglect has already been entered. A CASA volunteer provides additional support for respondent parents. For example, a CASA volunteer might go to the child’s home or school, and provide a written report to the court stating their observations of the family. These volunteers appear in court on the record, and might be called as a witness in a case.

         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 full-time judge may not serve as “an officer, director, trustee or non-legal advisor” if it is likely the organization “will be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][I]) or “will be engaged regularly in adversary proceedings in any court” (see 22 NYCRR 100.4[C][3][a][ii]).

         A judge may not serve on the advisory board of an entity to which he/she may make referrals (see e.g. Opinion 07-161 [local dispute resolution center]; 15-190 [non-profit agency that offers traffic safety education programs]). Indeed, even though the safety programs were “a relatively small part of the agency’s overall educational programming,” we decided it would appear improper if the judge served on the board (id.). Also, a full-time judge in a drug treatment court may serve on the advisory board of a not-for-profit organization which educates and assists addicts and their families, but only if the judge has no “opportunity to make referrals to the organization” (Opinion 15-201).

         Here, CASA’s primary role is to inform judges of a case’s facts. Notably, CASA is not a party in Family Court, nor entitled to unqualified access to confidential foster care records (see Matter of Evan E., 114 AD3d 149 [3d Dept 2013]). CASA’s role is to aid a judge in deciding cases of a child and family. CASA normally engages in cases before a judge. His/her membership on CASA’s advisory council would create an improper appearance, and thus the judge may not serve (see 22 NYCRR 100.4[C][3][a][I] [judge may not serve as “non-legal advisor” of an organization that will likely “be engaged in proceedings that ordinarily would come before the judge”]; Opinions 15-201; 15-190; 07-161).