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BILL NUMBER:S7586

TITLE OF BILL: An act to amend the family court act, in relation to warrants and orders of protection in persons in need of supervision cases in family court

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Family Court Advisory and Rules Committee.

Landmark reform of thee persons in Need of Supervision (PINS) statute, enacted as part of the 2005 State budget, added statewide uniformity to provisions of law regarding diversion of cases from the Family Court and furthered the salutary legislative goals of reducing unnecessary PINS prosecutions and placements and of ensuring that families in crisis would receive appropriate services. See L. 2005, c. 57, Part E. However, the statutes are overly restrictive in that they permit Family Court to refer youth and families for diversion services only upon the youth's initial appearance - notwithstanding that diversion may also be effective at a later point and, indeed, its appropriateness may only become clear at a later point. Further, the statutes eliminate the ability of parents to obtain necessary emergency relief in the infrequent, but alarming, cases in which their children pose an imminent risk to themselves, their parents or their families. We offer this measure to permit diversion referrals at any time. Moreover, the measure would carve out two narrowly-defined exceptions to the pre-petition diversion requirements, thus restoring essential emergency remedies that existed in the PINS statute prior to the 2005 reform.

First, this measure would amend Family Court Act º742 to permit a court to order the designated diversion agency to provide diversion services at any time during the pendency of a PINS proceeding, not simply upon the accused juvenile's first appearance.

In some cases, the youth and family may become amenable to diversion services at a later point; in others, diversion services may not have been appropriate or available at the outset, but may subsequently be identified as needed and as appropriate. Family mediation and respite care are prominent examples of diversion services that should be afforded at any point that they may be appropriate.

Second, the measure would permit a potential PINS petitioner to file a PINS petition and to request a warrant for a child who has absconded and cannot be located. In such case, the child is not able to appear at the diversion conference and the designated diversion agency is, therefore, not able to provide the required documentation of its diligent efforts to prevent the filing of a petition through the convening of the conference. See Matter of James S. v. Jessica B., 9 Misc.3d 229 (Fam. Ct., Suff.

Co., 2005). This warrant exception would provide an avenue of relief for parents in critical emergency situations in which a child has run away and may be living on the street under dangerous circumstances. Significantly, it would not apply to cases in which children abscond to the home of another parent or identifiable friend or relative, may easily be located and may still be available to participate in diversion conferences. Reflecting the prevalent practice in Family Courts statewide prior to the 2005 legislation, once a child has been apprehended on the warrant and appears in Family Court, the court would then refer the family to the diversion agency, pursuant to Family Court Act º742(b), unless the court determines that there is a substantial likelihood that the child would again abscond or that there is no substantial likelihood that he or she and his or her family could benefit fro111 diversion attempts. If the diversion agency is successful in resolving the family problem through provision of services, the designated diversion agency would so notify the court, which would then dismiss the petition.

Third, the measure would permit a potential PINS petitioner to file a PINS petition requesting a temporary order of protection in the rare, but serious, circumstance in which a child poses an imminent risk to the petitioner and/or a member of his or her household. Again, this would provide emergency relief in cases in which the need for protection is immediate, i. e., cases in which the requirement for the diversion agency to convene a conference with the child and potential petitioner would impede efforts to prevent injury. Once the emergency has abated and the child and petitioner are before the court, the court would then refer the parties to the diversion agency, pursuant to Family Court Act º742(b), unless the court determines that the child continues to pose an imminent risk to the petitioner or a household member or that there is no substantial likelihood that the youth and his or her family would benefit from diversion attempts. Again, if diversion efforts are successful, the designated diversion agency would so notify the court, which would then dismiss the petition. Affording the petitioner the remedy of obtaining an order of protection is absolutely essential not only to prevent harm, but also to stem an increasingly disturbing trend that has become evident in Family Courts statewide. In the absence of a means of obtaining an immediate order of protection in cases of child-against-parent violence or threats of violence, all too often parents file family offense petitions, pursuant to Article 8 of the Family Court Act, as a means of evading the diversion requirements of the PINS statute. Article 8, however, affords none of the specialized services or due process protections guaranteed to juveniles under the PINS law. If meaningful relief were available under the PINS statute, its salutary purposes would be preserved while necessary protection would be provided.

Enactment of this measure would strengthen the PINS statute by restoring much-needed remedies for emergency situations that existed prior to the 2005 enactment At the same time, it would encourage diversion by permitting Family Courts to make referrals at any time

and, in cases where petitions had been filed without prior diversion attempts, it would establish a rebuttable presumption in favor of post-petition referral for diversion services. By filling these gaps in the available relief with the narrowly constructed exceptions contained in this measure, the Legislature would ensure that the PINS statute would provide broader avenues of relief to resolve family problems.

This measure, which would have no fiscal impact upon the State, would take effect on the ninetieth day after it shall have become a law.

2012 LEGISLATIVE HISTORY: None. New proposal.

Text

STATE OF NEW YORK
________________________________________________________________________

7586

IN SENATE

June 5, 2012
___________

Introduced by Sen. GALLIVAN -- (at request of the Office of Court Admin-
  istration)  --  read twice and ordered printed, and when printed to be
  committed to the Committee on Rules

AN ACT to amend the family court act, in relation to warrants and orders
  of protection in persons in need of supervision cases in family court

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Paragraph  (ii) of subdivision (g) and subdivision (h) of
section 735 of the family court act, as added by section 7 of part E  of
chapter 57 of the laws of 2005, are amended and a new paragraph (iii) of
subdivision (g) is added to read as follows:
  (ii)  [The] EXCEPT AS PROVIDED IN PARAGRAPH (III) OF THIS SUBDIVISION,
THE clerk of the court shall accept a petition for filing only if it has
attached thereto the following NOTICES:
  (A) if the potential petitioner is the parent or other person  legally
responsible  for  the  youth,  a  notice from the designated lead agency
indicating THAT there is no bar to the filing of  the  petition  as  the
potential petitioner consented to and actively participated in diversion
services; and
  (B)  a  notice  from  the  designated  lead agency stating that it has
terminated diversion services because it has determined that there is no
substantial likelihood that the youth and his or her family will benefit
from further attempts, and that  the  case  has  not  been  successfully
diverted.
  (III) THE CLERK OF THE COURT SHALL ACCEPT A PETITION FOR FILING IF:
  (A)  THE  POTENTIAL  PETITIONER  IS  REQUESTING THAT THE COURT ISSUE A
WARRANT PURSUANT TO SECTION SEVEN HUNDRED  THIRTY-EIGHT  OF  THIS  PART,
BECAUSE  THE  RESPONDENT HAS ABSCONDED FROM THE HOME AND IS UNABLE TO BE
LOCATED, DESPITE THE EFFORTS OF THE POTENTIAL PETITIONER; OR
  (B) THE POTENTIAL PETITIONER IS REQUESTING  THAT  THE  COURT  ISSUE  A
TEMPORARY  ORDER  OF PROTECTION, PURSUANT TO SECTION SEVEN HUNDRED FORTY
OF THIS PART, BECAUSE THE RESPONDENT POSES AN IMMINENT RISK OF  HARM  TO
THE POTENTIAL PETITIONER OR MEMBERS OF HIS OR HER HOUSEHOLD.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15858-01-2
S. 7586                             2

  (h)  No  statement made to the designated lead agency or to any agency
or organization to which the potential  respondent  HAS  BEEN  REFERRED,
prior  to the filing of the petition, or if the petition has been filed,
prior to the time the respondent has  been  notified  that  attempts  at
diversion  will  not  be  made  or have been terminated, or prior to the
commencement of a fact-finding hearing if attempts at diversion have not
terminated previously, may be admitted into evidence at  a  fact-finding
hearing or, if the proceeding is transferred to a criminal court, at any
time prior to a conviction.
  S  2.  Subdivision  (b)  of  section  742  of the family court act, as
amended by section 9 of part E of chapter 57 of the  laws  of  2005,  is
amended to read as follows:
  (b)  At  the  initial  appearance  of  the respondent, the court shall
review any termination of diversion services pursuant to  such  section,
and  the  documentation  of  diligent  attempts  to  provide appropriate
services and determine whether such efforts  or  services  provided  are
sufficient  [and  may,].  THE  COURT  MAY,  AT  ANY TIME, subject to the
provisions of section seven hundred forty-eight of this  article,  order
that  additional diversion attempts be undertaken by the designated lead
agency. The court may order the youth and the  parent  or  other  person
legally  responsible for the youth to participate in diversion services.
AT THE INITIAL APPEARANCE OF THE  RESPONDENT  ON  A  PETITION  FILED  IN
ACCORDANCE  WITH  SUBPARAGRAPH (A) OF PARAGRAPH (III) OF SUBDIVISION (G)
OF SECTION SEVEN HUNDRED THIRTY-FIVE OF THIS ARTICLE,  THE  COURT  SHALL
REFER THE RESPONDENT AND PARENT TO THE DESIGNATED LEAD AGENCY FOR DIVER-
SION  ATTEMPTS,  UNLESS THE COURT DETERMINES THAT THERE IS A SUBSTANTIAL
LIKELIHOOD THAT THE CHILD WOULD ABSCOND OR THERE IS NO SUBSTANTIAL LIKE-
LIHOOD THAT THE YOUTH AND HIS OR HER FAMILY WOULD BENEFIT FROM DIVERSION
ATTEMPTS. AT THE INITIAL APPEARANCE OF  THE  RESPONDENT  ON  A  PETITION
FILED IN ACCORDANCE WITH SUBPARAGRAPH (B) OF PARAGRAPH (III) OF SUBDIVI-
SION (G) OF SECTION SEVEN HUNDRED THIRTY-FIVE OF THIS ARTICLE, THE COURT
SHALL  REFER THE RESPONDENT AND PARENT TO THE DESIGNATED LEAD AGENCY FOR
DIVERSION ATTEMPTS, UNLESS THE COURT DETERMINES THAT THE CHILD CONTINUES
TO POSE AN IMMINENT RISK TO THE PETITIONER OR A MEMBER  OF  HIS  OR  HER
FAMILY  WOULD  BENEFIT  FROM  DIVERSION ATTEMPTS. If the designated lead
agency thereafter determines that [the] A case  REFERRED  FOR  DIVERSION
EFFORTS  UNDER  THIS SECTION has been successfully resolved, it shall so
notify the court, and the court shall dismiss the petition.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.