A rare decision by New York’s highest court has overturned the termination of a Syracuse mom’s parental rights because her assigned attorney met with her only briefly during the proceedings widely considered to be the “civil death penalty” for parents.
In a 21-page opinion last week, the majority of judges at the Court of Appeals determined that Beth Fisher, a 48-year-old mom from Onondaga County, received ineffective assistance of counsel during a hearing that would strip her of all legal rights to her twin daughters.
“The fundamental right of parents to the companionship, care, and custody of their children is too precious a right to sever without the meaningful assistance of counsel,” Associate Judge Shirley Troutman wrote in the opinion, adding that the lawyer failed to prepare the mother for testimony or ascertain whether she wanted to keep or surrender her parental rights.
A 1975 law guarantees indigent parents in New York the right to be represented by an attorney in family court. But in practice that has not been the case, particularly in rural and upstate regions, advocates for disadvantaged families have long argued. In a public address three years ago, Chief Judge Janet DiFiore agreed, saying low pay and high turnover has led to a “statewide mass exodus of qualified assigned counsel.” Attorneys who remain in the family court are “overworked and hard-pressed to devote adequate time and resources to the clients they are representing,” she added.
“At least, even if I don’t win, my kids will someday grow up and be like, ‘My mom fought. She didn’t give up.’”
— Beth Fisher, Appellant
Fisher’s case marks the first time the Court of Appeals has ruled that just like in criminal court, parents’ right to counsel in child welfare cases must include the “effective assistance of counsel.”
The Nov. 25 decision shows “the Court of Appeals saying ‘We are watching family courts,” said Director of the NYU Law Family Defense Clinic Chris Gottlieb, who co-wrote an amicus brief in the case.“We care about these cases and we’re going to reign in some of the lawlessness.”
The Onondaga County Department of Children and Family Services, the defendant in the case, did not respond to The Imprint’s requests for comment.
A “mute” lawyer
According to court records, Fisher, who is disabled and unable to work, lost custody of her twins when they were just 6 months old due to her substance abuse issues. Now, her daughters are almost 6 and living with a foster family. Fisher hasn’t seen them for four years, she said in a phone interview this week.
Court records showed that during the termination of parental rights proceedings on Feb. 15, 2023, Fisher’s court-appointed attorney — who is not named in the appeals case — told the judge he had never met or spoken at length with his client prior to this critical end-stage family court hearing, which can result in a permanent severing of ties between parent and child. Yet, the judge allowed the hearing to continue, and Fisher was afforded just 5 minutes with her attorney, during which time he told her that she had no chance of winning, she said in the interview.
Despite the lack of preparation, the family court judge chose to continue the hearing, records show. Discouraged by what she described as her lawyer’s apathy, Fisher informed the court she wanted to represent herself, unaware that she had the right to ask for a different lawyer.
“If you haven’t met your client, if you don’t know what the client’s wishes are, then there’s really no way you could effectively represent them. It happens more than it should.”
— Philip Rothschild, Attorney
As a result, Fisher’s rights were terminated before she had a chance to understand what was happening.
“I fumbled that so bad because I was flustered, I was emotional, and I didn’t know anything about law,” Fisher said.
Devastated but determined to keep trying, she contacted the Hiscock Legal Aid Society in Syracuse, which provides legal help for low-income residents.
“I’m not going to go down without a fight,” Fisher said. “At least, even if I don’t win, my kids will someday grow up and be like, ‘My mom fought. She didn’t give up.’”
An attorney from the Syracuse organization, Philip Rothschild, represented her in the Court of Appeals case that followed. He said it is not uncommon for parents to spend only minutes with the court-appointed lawyer tasked with helping them fight to keep their kids. That sways outcomes, he added.
“If you haven’t met your client, if you don’t know what the client’s wishes are, then there’s really no way you could effectively represent them,” Rothschild said. “It happens more than it should.”
Though Fisher ended up winning her appeal, the panel of judges acknowledged the delicate balance of keeping children safe while respecting the constitutional rights of parents who are in danger of losing their child. Fisher had been in and out of rehab, and had other children in CPS custody at various times. At the appeals hearing, children’s attorney Susan Marris argued that the twins had already been with the foster parents for nearly five years and should remain there. She added that “children are entitled to a safe, permanent home,” under state statute. “And when a biological parent can’t provide that, these children need to be freed for adoption.”
Judge Troutman pushed back.
“There is no question that it is very important and imperative that these cases be resolved in a speedy fashion,” Troutman said during the appeal proceedings. “But we cannot throw the Constitution in the garbage with respect to people’s rights in order to get there.”
Family court cases rarely garner such attention from the Court of Appeals, if at all, attorneys interviewed by The Imprint said. But in October, the court overturned another termination of parental rights determination in a related case involving an immigrant Chinese father in New York City, arguing that the child welfare agency did not make enough effort to reunite him with his child.
“Part of the problem with the family court has been the lack of accountability all along,” Gottlieb said. “So it’s very important to have the higher courts, and particularly the Court of Appeals, send a message that the rights we’re talking about are fundamental constitutional rights, and you can’t be casual about them.”
“There is no question that it is very important and imperative that these cases be resolved in a speedy fashion. But we cannot throw the Constitution in the garbage with respect to people’s rights in order to get there.”
— Associate Judge Shirley Troutman
One solution that legal advocates have recommended is to establish multidisciplinary public defender offices across the state, such as those that exist in New York City — the Bronx Defenders and Center for Family Representation.
In New York City, these offices — which were awarded city contracts starting in 2007 — supplement parent representation in court with a team of professionals that helps them through the case and includes a lawyer, a social worker and often a parent advocate who has direct experience with the child welfare system.
In many upstate communities, solo practitioners or beleaguered public defenders handle such cases alone.
A 2019 study led by influential family court attorney Martin Guggenheim highlighted the impact of these family defense offices. It analyzed over 28,000 cases between 2007 and 2014. Parents who were able to use these “multidisciplinary” legal services were reunited with their children 43% more often in the first year compared to those who used solo practitioners. It also found that full implementation of these offices would reduce the number of children in foster care by 12%.
Fisher, a mother of five, hopes the Court of Appeals decision will mean that more parents have the “crucial” support she missed. She is set to return to court to face a new termination of parental rights hearing next Friday.
“No parents are perfect. Kids don’t come with instruction manuals,” Fisher said. “Whatever the circumstances are that brought us to this point where we’re getting ready to lose the rights of our children — there has to be somebody that’s willing to listen to our story.”
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