Appeals court remands paternity case

The Appellate Division of state Supreme Court, Third Department, has sent a case involving a paternity question back to Schenectady County Family Court due to ineffective assistance of counsel by the attorney representing the child.

In August 2016, the Schenectady County Department of Social Services filed a petition on behalf of Joshua’s maternal grandmother — Denise AA — seeking an order of filiation regarding Joshua.

Joshua’s mother — Angelica SS — was not married when Joshua was born. When she got married a year later, Joshua was living with his grandmother.

In January 2018 Schenectady County Court Judge Jill S. Polk order a paternity test to determine who is the father of a boy identified in the decision as Joshua BB.

The grandmother told Polk that Joshua believes his mother’s husband is his father. The appointed attorney for child (AFC) told Polk that, based on discussions with the grandmother, Joshua “might also hold a belief that someone else is the father,” according to the Third Department’s decision, released Jan. 17.

But there is no record of the AFC discussing who he believes his father is, according to the decision.

Joshua’s first AFC argued that the petition for a paternity test should be denied under the principle of equitable estoppel to protect the existing father-child relationship.

The second appointed AFC, who only appeared at the last court appearance, when the paternity test was ordered, withdrew the argument against a test.

Beyond a few short and scattered statements, there was no substantive evidence or discussion of who has a parent-child relationship with the child,” according to the decision.

And there was no discussion of whether a paternity test would be in the best interest of the child.

“Family Court did not possess adequate information to determine the child’s best interests and, as such, it erred in ordering genetic marker testing without first conducting a hearing,” the panel wrote.

The panel also found that Joshua did not receive effective assistance of counsel.

There is no evidence in the record that the AFC consulted with Joshua —who was 4 ½ to 6 years old at the time.

Although a conversation might raise questions about paternity for the child that didn’t exist before, “nevertheless, a patient, careful and nuanced inquiry is not only possible, but necessary,” the Third Department panel wrote.

The case was sent back to Family Court to resolve, on the record, the question of whether the test would be in the best interest of Joshua.

Although there is no Rochester-area connection to the case, the decision is a reminder to AFCs across the state how important it is to communicate adequately with the child they represent.

“It reflects the need for the attorney for child to not just have done the work, but to have placed on the record what they have done,” said Rochester attorney Gary Muldoon.

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