News Picks

SORA - No Criminal History Points for JD Adjudications. Agreeing with the Second Department's decision in People v Campbell (98 AD3d 5 [2nd Dept 2012]), the Third Department has held that prior juvenile delinquency adjudications may not be the basis for points under the criminal history section of the New York risk assessment instrument. People v Shaffer, 2015 NY Slip Op 03586 (3rd Dept 4/30/2015). The Board of Examiners of Sex Offenders' guidelines authorizing criminal history points for juvenile delinquency adjudications conflict with the Family Court Act. The Third Department stressed that its holding was limited to the assignment of points on the risk assessment instrument; "we do not hold that the facts underlying the juvenile delinquency adjudication may not be considered when determining whether to depart from the recommended risk level ...."

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Testimony of Treating Psychiatrist Violated Physician-Patient Privilege. Last week in People v Rivera (2015 NY Slip Op 03764 [5/5/2015]), the Court of Appeals decided the narrow issue of whether the trial court erred in permitting the defendant's psychiatrist to testify concerning the defendant's admission that he abused an 11-year old relative. The Appellate Division unanimously reversed and remanded for a new trial. The Court of Appeals affirmed, holding that the trial court's ruling allowing the psychiatrist to testify violated the physician-patient privilege.

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Second Department Reverses Removal of Child Citing Nicholson v Scoppetta on Risk of Harm. "Here, the Family Court's determination that remand of the subject child to his mother's custody would place him at imminent risk of harm is based upon nothing more than speculation that the mother would not enforce the order of protection as against the father." Matter of Baby Boy D., 2015 NY Slip Op 03355 (2nd Dept 4/22/2015). In 2011, three children were removed from the home based on serious injury to one of them. The court determined that the injured child was abused by both the mother and father and the two siblings were derivatively abused. Both parents were ordered to complete counseling and attend supervised visitation. The mother completed counseling and a parenting course and consistently visited the children. Despite this positive involvement, ACS petitioned for custody alleging derivative abuse after the 2014 birth of Baby Boy D. The Second Department concluded that the court erred in determining that the child was at imminent risk of harm; "'[i]mminent danger, however, must be near or impending, not merely possible' (Nicholson v Scoppetta (3 NY3d [357] at 369 [2004])." The appellate court relied on record evidence of the mother's positive involvement with her children, her completion of tasks and work ordered by the court, and the fact that she no longer resided with the father. Also of note to the Second Department was the trial testimony from the mother's therapist that "the three children removed in the prior proceeding should have been returned to her."

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ICE Parental Interests Directive: The Intersection of ICE and Family Court. Attorneys representing non-citizen parents in family court proceedings should be aware of the 2013 U.S. Immigration and Customs Enforcement (ICE) directive, "Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities," that addresses the concerns of detained immigrant parents or legal guardians who are the primary caretakers of minor children. As noted in the Parental Interests Directive Fact Sheet [English version; Spanish version], the directive contains several elements related to the operations of ICE's Enforcement and Removal Operations (ERO) field offices' handling of cases involving primary caretakers, parents, or legal guardians of minor children who are involved in family court or child welfare proceedings. Significantly, these elements include, but are not limited to: 

• Facilitating family court participation;
• Allowing parent/guardian-child visitation; and
• Accommodating the arrangements of parents, legal guardians, or primary caretakers who are facing pending removal for the care and travel arrangements of their children.

The directive does not create any right or benefit, substantive or procedural, or any legally enforceable agreement binding on any party in any administrative, civil, or criminal matter. But, when not honored by ICE, it may assist an attorney in arguing that a parent has been denied his/her right to participate in a family law or child welfare proceeding. Contact information for ICE's parental interests staff is available on the ICE Parental Interests Directive page.

More information about the directive is available in the National Immigrant Women's Advocacy Project's publication, "How to Get a Detained Person to Court for Family Court Cases Involving Children and/or Criminal Proceedings" and the Immigrant Legal Resource Center's publication, "Applying the ICE Parental Interests Directive to Child Welfare Cases." The most recent statistics on removal of parents with U.S.-born children are available here.

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Practice Advisory on Recent Attorney General Order that Limits Immigration Consequences of Guilty Pleas to Certain Charges. The Immigrant Defense Project (IDP) and others have prepared a Practice Advisory for defense lawyers on how to take advantage of a recent order and accompanying opinion then-U.S. Attorney General Eric Holder issued on April 10, 2015. The A.G.'s order in Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015) vacates a 2008 opinion of former Attorney General Mukasey that allowed immigration judges to consider evidence outside the record of conviction in order to determine whether a noncitizen was removable from the United States on the basis of a conviction for a "crime involving moral turpitude." As noted in the Advisory, "[a]lthough the [new order and opinion] authorize the Board of Immigration Appeals to address how adjudicators are to determine whether a criminal offense is a CIMT [crime involving moral turpitude] for immigration purposes in the future, the text of the opinion and cited Supreme Court case law make quite clear that any inquiry should not go beyond the record of conviction." The Practice Advisory for Defenders prepared by IDP, the National Immigration Project of the National Lawyers Guild, and the Cardozo School of Law Immigration Justice Clinic regarding the Silva-Trevino II order is available here.

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Amendment to Rule on Access to Court Interpreter Services. Effective May 1, 2015, Rule 217.1 of the Uniform Rules for NYS Trial Courts (Access to Court Interpreter Services for Persons with Limited English Proficiency) has been amended to provide that, in all criminal and civil proceedings, the clerk of the court or other designated administrative officer is responsible for scheduling an interpreter from an approved list maintained by the Office of Court Administration. The amended rule also provides: "If no pre-approved interpreter is available, the clerk or another designated administrative officer shall schedule an interpreter as justice requires. This rule shall not alter or diminish the court's authority and duty to assure justness in proceedings before it." More information about the Unified Court System's Office of Language Access is available here.

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Rules on Reporting Voluntary Pro Bono Services and Contributions Amended. The Unified Court System has revised the rules regarding the reporting of pro bono services and contributions, effective May 1, 2015. The Rules of the Chief Administrator related to the Registration of Attorneys and biennial filing requirements (codified at 22 NYCRR part 118), now mandate the submission of an anonymous statement, separate from the regular registration forms, in which attorneys will provide information regarding pro bono services and contributions, as defined by Rule 6.1 of the Rules of Professional Conduct, provided during the reporting period. In addition to reporting unpaid legal services performed and funds contributed to legal services organizations, attorneys may report pro bono and charitable services that fall outside the scope of Rule 6.1, including legal services performed for the public good at a substantially reduced rate and charitable activities and financial contributions other than those related to providing legal services for the poor.

Attorneys who are employed by legal services providers, including "a legal services agency, legal aid society, defenders organization, or similar group," are exempt from the reporting requirements, but must submit an anonymous statement affirming their exempt status.

An instruction sheet that outlines the process is available here and more information is available on the Unified Court System website at http://www.nycourts.gov/attorneys/probono/reportingreqs-intro.shtml.

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DNA Newsletter Now Available from The Legal Aid Society. The Legal Aid Society's DNA Unit has started a weekly DNA Newsletter that relates news stories about the forensic sciences in news and popular media. To subscribe to the newsletter, click here.

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