Marcano, however, was dependent on an "18-B" lawyer – named for article 18-B of New York State County Law, stating that counties must provide counsel for indigent parents. The 18-B lawyers are independent attorneys who get paid $75 an hour by the city to take individual parents’ cases. She found her attorney unreliable, but felt stuck with him. “It was like I was defending myself, even though my lawyer was there,” she said.
That should be changing soon for some parents. The city is changing the way low-income parents are represented in abuse or neglect cases where ACS is involved. Until now, they have either had to hire private lawyers, or depend what many consider uneven representation from the 18-B lawyers. The city issued a request for proposals (RFP) for outside agencies to become the “institutional providers” for indigent parents.
“For years, people have called for an institutional provider,” said John Feinblatt, the New York City criminal justice coordinator. “The other parties in the family justice system are all represented by institutional providers, and close to 30 organizations over the years have asked the city in one form or another to create an institutional provider,” Feinblatt said.
The spotty representation for parents also contributes to the long time many children spend in foster care before being reunited with their families or placed in a permanent home. Advocates say the whole system will be more efficient if parents are represented on par with children and the city.
Three organizations were selected to negotiate with the city: Bronx Defenders, South Brooklyn Legal Services and the Center for Family Representation in Manhattan. Because they are in the final lap of negotiations, Feinblatt did not reveal the details of the contracts, but they could add up to $10 million, according to his testimony before City Council in January.
The city received proposals from agencies in Queens and Staten Island, but Feinblatt said respondents did not meet standards, so he expects to reissue the RFP for those two boroughs.
Although some of the 18-B lawyers who currently represent parents are well qualified, people both within the system and without see advantages to having outside agencies overseeing parents’ cases in Family Court.
Stephanie Gendell, a senior policy associate at the Citizens Committee for Children, said the lawyers at these nonprofits will be able to better represent the parents because they’re able to address some of their extra-legal needs, and there will be more training and supervision.
"The institutional providers will be able to better represent parents because they will use a multidisciplinary approach that includes social workers," Gendell said, "and the attorneys will be able to receive formalized training and supervision through the new structure."
Attorney David Lansner served in the pool of 18-B lawyers from 1979 to 2000 and briefly sat on the committee that selects 18-B lawyers. He thinks the new institutional providers will do a much better job than the assigned counsel.
“I think 18-B lawyers are very upset about the change because they feel it will cut down their cases and their income,” Lansner said. “Of course, the 18-B program is not for the benefit of the attorneys.”
But the new program doesn’t necessarily cut the income of the 18-B lawyers. It cuts the number of cases they’ll get, which could give them more time to prepare. "Almost everybody knows that 18-B lawyers do almost no preparation, and poor parents lose their cases because their lawyers are unprepared,” he said. “Most of the 18-B lawyers don’t have offices where clients can meet them, don’t have telephones where clients can reach them, don’t have malpractice insurance, don’t make motions and don’t do investigations.”
Feinblatt agreed that parents and the court system overall will benefit from the shift away from private 18-B lawyers. One reason is that “an institutional provider provides more services, because clearly these are complicated legal cases, but they’re also complicated family cases and complicated social service cases,” he said.
The other point Feinblatt made about the change is that it will allow these attorneys to look at trends, understand the issues and be a voice for reform, along with the institutional providers who represent the children and ACS.
18-B lawyers will still represent parents in 50 percent of the cases. “The bad news is, there’s plenty of work to go around,” he said.
That's not the only recent change to lawyering in Family Court – the city has also added 65 new attorneys to the ACS family court unit, which represents the city in child welfare cases, and increased funding for those lawyers’ training and supervision. This was yet another in a string of responses to a spike in reports and abuse cases following the death of 7-year-old Nixzmary Brown last year, which received intense and lasting public attention.
Advocates say these changes are positive in and of themselves, but remain insufficient because they only address one small part of a dysfunctional system. In addition to the increased city funding for ACS attorneys – $1.4 million this fiscal year and a proposed $4.7 million for fiscal year 2008 – they say that the state needs to step up with more funding for Family Court judges and law guardians.
“The amount of delay and the time that a judge can spend on the case can't be affected until there's a significant infrastructure change and until there are enough judges so they don't have 50 cases on their docket in a day,” said Karen Freedman, executive director of Lawyers for Children, one of the groups that provides law guardians to represent children in court. A recent look at the dockets in family court showed a high of 56 children on one docket in one day, which meant the judge could only spend a few minutes on each child’s case.
The state budget released earlier this month did not include funds for additional Family Court judges, nor for the pay raises that many were expecting. Chief Judge Judith Kaye made headlines last week by threatening a lawsuit if judicial salaries are not increased by June. They have remained the same since 1999.
A coalition of child welfare organizations, together with City Councilmember Bill de Blasio, chair of Council's General Welfare Committee, plans to pursue a legislative strategy to increase state funding for law guardians and Family Court judges. The coalition is asking state legislators to revisit the 1991 state law that set the number of Family Court judges in the city at 47 in 1991, a number that’s never been revised even though average caseloads per judge increased from 1,400 in 2005 to 2,500 in 2006. The jump in caseloads was a result of increased calls to the state central register, as well as the 2005 permanency law taking effect, which requires twice as many hearings for children in the foster care system.
Child welfare advocates say that improved representation for parents and an increase in the number of family court judges could produce results, both for parents like Marcano caught in the legal maze and for children currently languishing in foster care, said Freedman.
“I think the most critical difference for children would be that we could make a dent in our statistical shame, which is that New York State is 48th in the nation for length of stay for a child in foster care,” Freedman said. “It's an unbelievable disgrace that New York state ranks that low.”