S T A T E   O F   N E W   Y O R K
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                                  7639

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              May 11, 2011
                               ___________

Introduced  by  M. of A. WEINSTEIN -- (at request of the Office of Court
  Administration) -- read once and referred to the Committee on  Judici-
  ary

AN  ACT  to  amend  the family court act, in relation to adjournments in
  contemplation of dismissal and suspended judgments in child protective
  proceedings in the family court

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

  Section 1. Section 1039 of the family court act, as amended by chapter
707  of  the  laws  of  1975, subdivisions (a), (b), (c), (d) and (e) as
amended by chapter 41 of the laws of 2010 and subdivision (f) as amended
by chapter 601 of the laws of 1985, is amended to read as follows:
  S 1039. Adjournment in contemplation of dismissal.  (a) (I)  Prior  to
[or  upon]  THE  ENTRY OF a fact-finding [hearing] ORDER, the court may,
upon a motion by [the petitioner with the consent of the respondent and]
ANY PARTY OR the child's attorney WITH THE CONSENT OF  ALL  PARTIES  AND
THE  CHILD'S  ATTORNEY,  or upon its own motion with the consent of [the
petitioner, the respondent] ALL PARTIES and the child's attorney,  order
that  the  proceeding  be  ["]adjourned in contemplation of dismissal[".
Under no circumstances shall the court order any party to consent to  an
order under this section].
  (II)  AFTER  ENTRY OF A FACT-FINDING ORDER BUT PRIOR TO THE ENTRY OF A
DISPOSITIONAL ORDER, THE COURT MAY, WITH CONSENT OF THE  RESPONDENT  AND
UPON  MOTION OF ANY PARTY OR THE CHILD'S ATTORNEY OR UPON ITS OWN MOTION
WITHOUT REQUIRING THE CONSENT OF THE  PETITIONER  OR  ATTORNEY  FOR  THE
CHILD,  ORDER  THAT  THE  PROCEEDING  BE  ADJOURNED  IN CONTEMPLATION OF
DISMISSAL. THE PETITIONER, RESPONDENT AND ATTORNEY FOR THE CHILD HAVE  A
RIGHT TO BE HEARD WITH RESPECT TO THE MOTION.
  (III) The court may make [such] AN order UNDER THIS SECTION only after
it  has apprised the respondent of the provisions of this section and it
is  satisfied  that  the  respondent  understands  the  effect  of  such

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11106-01-1
              

A. 7639                             2

provisions.    UNDER NO CIRCUMSTANCES SHALL THE COURT ORDER ANY PARTY TO
CONSENT TO AN ORDER UNDER  THIS  SECTION.  THE  COURT  SHALL  STATE  ITS
REASONS  ON  THE  RECORD FOR ORDERING AN ADJOURNMENT IN CONTEMPLATION OF
DISMISSAL UNDER THIS SECTION.
  (b)  An adjournment in contemplation of dismissal is an adjournment of
the proceeding for a period not to exceed one year with a view to  ulti-
mate  dismissal  of the petition in furtherance of justice.  IN THE CASE
OF AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AFTER  THE  ENTRY  OF  A
FACT-FINDING  ORDER, SUCH DISMISSAL INCLUDES VACATUR OF THE FACT-FINDING
ORDER.
  (I) Upon the consent of the petitioner, the respondent and the child's
attorney, the court may issue an order extending [such] THE period OF AN
ADJOURNMENT IN CONTEMPLATION OF DISMISSAL ISSUED PURSUANT  TO  PARAGRAPH
(I)  OF  SUBDIVISION  (A)  OF  THIS  SECTION  PRIOR  TO  THE  ENTRY OF A
FACT-FINDING ORDER for such time and upon  such  conditions  as  may  be
agreeable to the parties.
  (II)  FOR GOOD CAUSE SHOWN AND WITH THE CONSENT OF THE RESPONDENT, THE
COURT MAY, ON ITS OWN MOTION OR ON MOTION OF ANY PARTY OR  THE  ATTORNEY
FOR  THE CHILD AND AFTER PROVIDING NOTICE AND AN OPPORTUNITY TO BE HEARD
TO ALL PARTIES AND THE ATTORNEY FOR THE CHILD, ISSUE AN ORDER  EXTENDING
AN  ADJOURNMENT  IN  CONTEMPLATION OF DISMISSAL ISSUED PURSUANT TO PARA-
GRAPH (II)  OF  SUBDIVISION  (A)  OF  THIS  SECTION  AFTER  ENTRY  OF  A
FACT-FINDING  ORDER  FOR SUCH TIME AND UPON SUCH CONDITIONS AS MAY BE IN
THE BEST INTERESTS OF THE CHILD OR CHILDREN WHO ARE THE SUBJECTS OF  THE
PROCEEDING.
  (III) THE COURT SHALL STATE ITS REASONS ON THE RECORD FOR EXTENDING AN
ADJOURNMENT  IN  CONTEMPLATION  OF  DISMISSAL  UNDER  THIS  SUBDIVISION,
INCLUDING ITS REASONS FOR CHANGES IN THE TERMS AND CONDITIONS, IF ANY.
  (c) [Such] THE order [may] SHALL include terms and conditions  [agree-
able  to  the  parties  and  to  the court, provided that such terms and
conditions] IN FURTHERANCE OF THE BEST INTERESTS OF THE CHILD  OR  CHIL-
DREN  WHO  ARE THE SUBJECTS OF THE PROCEEDING AND shall include, BUT NOT
BE LIMITED TO, a requirement that the child and the respondent be  under
the  supervision  of  a  child  protective agency during the adjournment
period.  EXCEPT AS PROVIDED IN SUBDIVISION (G) OF THIS SECTION, AN ORDER
PURSUANT TO SECTION ONE THOUSAND  SEVENTEEN,  OR  SECTION  ONE  THOUSAND
FIFTY-FIVE OF THIS ARTICLE SHALL NOT BE MADE IN ANY CASE ADJOURNED UNDER
THIS  SECTION; NOR SHALL AN ORDER UNDER THIS SECTION CONTAIN A CONDITION
REQUIRING THE CHILD OR CHILDREN TO BE  PLACED  VOLUNTARILY  PURSUANT  TO
SECTIONS  THREE  HUNDRED  FIFTY-EIGHT AND THREE HUNDRED EIGHTY-FOUR-A OF
THE SOCIAL SERVICES LAW. In any order issued pursuant to  this  section,
[such agency] THE PETITIONER shall be directed to make a progress report
to the court, the parties and the child's attorney on the implementation
of  such  order,  no  later  than ninety days after the issuance of such
order[, unless the court determines that the facts and circumstances  of
the  case  do  not  require  such reports to be made] AND SHALL SUBMIT A
REPORT PURSUANT TO SECTION ONE THOUSAND FIFTY-EIGHT OF THIS  ARTICLE  NO
LATER  THAN  SIXTY DAYS PRIOR TO THE EXPIRATION OF THE ORDER. The [child
protective agency] PETITIONER shall make further reports to  the  court,
the parties and the child's attorney in such manner and at such times as
the court may direct.
  (d)  Upon  application  of  the  respondent,  the petitioner[,] OR the
child's attorney or upon the court's own motion, made at any time during
the duration of the order, if the child  protective  agency  has  failed
substantially  to provide the respondent with adequate supervision or to
observe the terms and conditions of the order, the court may direct  the

A. 7639                             3

child protective agency to observe such terms and conditions and provide
adequate  supervision  or  may  make  any  order  authorized pursuant to
section two hundred fifty-five OR ONE THOUSAND FIFTEEN-A of this act.
  (e) [Upon application of] IF, PRIOR TO THE EXPIRATION OF THE PERIOD OF
AN  ADJOURNMENT IN CONTEMPLATION OF DISMISSAL, A MOTION OR ORDER TO SHOW
CAUSE IS FILED BY the petitioner or the child's  attorney  or  upon  the
court's  own  motion, made at any time during the duration of the order,
[the] THAT ALLEGES A VIOLATION  OF  THE  TERMS  AND  CONDITIONS  OF  THE
ADJOURNMENT, THE PERIOD OF THE ADJOURNMENT IN CONTEMPLATION OF DISMISSAL
IS  TOLLED  AS  OF  THE  DATE OF SUCH FILING UNTIL THE ENTRY OF AN ORDER
DISPOSING OF THE MOTION OR ORDER TO SHOW CAUSE.   THE court  may  REVOKE
THE  ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND restore the matter to
the calendar OR THE COURT MAY EXTEND THE PERIOD OF  THE  ADJOURNMENT  IN
CONTEMPLATION  OF DISMISSAL PURSUANT TO SUBDIVISION (B) OF THIS SECTION,
if the court finds after a hearing ON THE  ALLEGED  VIOLATION  that  the
respondent  has failed substantially to observe the terms and conditions
of the order or to cooperate with the supervising child protective agen-
cy. [In such event] WHERE THE  COURT  HAS  REVOKED  THE  ADJOURNMENT  IN
CONTEMPLATION OF DISMISSAL AND RESTORED THE MATTER TO THE CALENDAR:
  (I) IN THE CASE OF AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL ISSUED
PRIOR  TO  THE ENTRY OF A FACT-FINDING ORDER, unless the parties consent
to an order pursuant to section one thousand  fifty-one  of  this  [act]
ARTICLE  or  unless  the  petition  is dismissed upon the consent of the
petitioner, the court shall thereupon proceed to a fact-finding  hearing
under this article no later than sixty days after [such] THE application
TO RESTORE THE MATTER TO THE CALENDAR, unless such period is extended by
the court for good cause shown; OR
  (II)  IN  THE  CASE  OF  AN  ADJOURNMENT IN CONTEMPLATION OF DISMISSAL
ISSUED AFTER THE ENTRY OF A FACT-FINDING ORDER, THE COURT SHALL THEREUP-
ON PROCEED TO A DISPOSITIONAL HEARING UNDER THIS ARTICLE NO  LATER  THAN
THIRTY DAYS AFTER THE APPLICATION TO RESTORE THE MATTER TO THE CALENDAR,
UNLESS SUCH PERIOD IS EXTENDED BY THE COURT FOR GOOD CAUSE SHOWN.
  (III)  THE COURT SHALL STATE ITS REASONS ON THE RECORD FOR REVOKING AN
ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND RESTORING  THE  MATTER  TO
THE CALENDAR UNDER THIS SUBDIVISION.
  (f) If the proceeding is not [so] restored to the calendar AS A RESULT
OF A FINDING OF AN ALLEGED VIOLATION PURSUANT TO SUBDIVISION (E) OF THIS
SECTION  AND  IF  THE  ADJOURNMENT  IN CONTEMPLATION OF DISMISSAL IS NOT
EXTENDED PURSUANT TO SUBDIVISION (B) OF THIS SECTION, the  petition  is,
at the expiration of the adjournment IN CONTEMPLATION OF DISMISSAL peri-
od, deemed to have been dismissed by the court in furtherance of justice
[unless  an  application  is pending pursuant to subdivision (e) of this
section]. If [such application is granted] THE COURT FINDS  A  VIOLATION
PURSUANT  TO  SUBDIVISION (E) OF THIS SECTION, the petition shall not be
dismissed and shall proceed in accordance with the  provisions  of  such
subdivision (e).
  (g)  Notwithstanding  the  provisions  of this section, IF A MOTION OR
ORDER TO SHOW CAUSE IS FILED ALLEGING A VIOLATION PURSUANT  TO  SUBDIVI-
SION  (E)  OF THIS SECTION AND THE COURT FINDS THAT REMOVAL OF THE CHILD
FROM THE HOME IS NECESSARY PURSUANT TO SECTION ONE THOUSAND TWENTY-SEVEN
OF THIS ARTICLE DURING THE PENDENCY OF THE VIOLATION MOTION OR ORDER  TO
SHOW  CAUSE,  the  court[,]  may,  at any time prior to dismissal of the
petition pursuant to subdivision (f) OF THIS  SECTION,  issue  an  order
authorized  pursuant  to section one thousand twenty-seven OF THIS ARTI-
CLE. NOTHING IN THIS SECTION SHALL PRECLUDE THE CHILD PROTECTIVE  AGENCY
FROM   TAKING   EMERGENCY   ACTION  PURSUANT  TO  SECTION  ONE  THOUSAND

A. 7639                             4

TWENTY-FOUR OF THIS  ARTICLE  WHERE  COMPELLED  BY  THE  TERMS  OF  THAT
SECTION.  IF  THE  VIOLATION  IS FOUND AND THE MATTER IS RESTORED TO THE
CALENDAR, THE COURT MAY MAKE FURTHER ORDERS IN ACCORDANCE WITH  SUBDIVI-
SION (E) OF THIS SECTION.
  S  2. Section 1053 of the family court act, as added by chapter 962 of
the laws of 1970 and subdivision (c) as amended by  chapter  41  of  the
laws of 2010, is amended to read as follows:
  S 1053. Suspended judgment.  (a) Rules of court shall define permissi-
ble terms and conditions of a suspended judgment. These terms and condi-
tions  shall  relate  to  the  acts  or omissions of the parent or other
person legally responsible for the care of the child.
  (b) The maximum duration of any term or condition of a suspended judg-
ment is one year, unless the court finds at the conclusion of that peri-
od, upon a hearing, that exceptional circumstances require an  extension
thereof for A PERIOD OF UP TO an additional year.  THE COURT SHALL STATE
ITS  REASONS  ON THE RECORD FOR EXTENDING A PERIOD OF SUSPENDED JUDGMENT
UNDER THIS SUBDIVISION, INCLUDING ITS REASONS FOR CHANGES IN  THE  TERMS
AND CONDITIONS, IF ANY.
  (c)  Except  as  provided  for herein, in any order issued pursuant to
this section, the court may require the child protective agency to  make
progress  reports to the court, the parties, and the child's attorney on
the implementation of such order. Where  the  order  of  disposition  is
issued  upon  the  consent of the parties and the child's attorney, such
agency shall report to the court, the parties and the  child's  attorney
no  later  than  ninety days after the issuance of the order, unless the
court determines that the facts and circumstances of  the  case  do  not
require such report to be made.
  (D) THE ORDER OF SUSPENDED JUDGMENT MUST SET FORTH THE DURATION, TERMS
AND  CONDITIONS  OF  THE  SUSPENDED  JUDGMENT,  AND  MUST CONTAIN A DATE
CERTAIN FOR A COURT REVIEW NOT LATER THAN THIRTY DAYS PRIOR TO THE EXPI-
RATION OF THE PERIOD OF SUSPENDED JUDGMENT. THE ORDER OF SUSPENDED JUDG-
MENT ALSO MUST STATE IN CONSPICUOUS PRINT THAT A  FAILURE  TO  OBEY  THE
ORDER  MAY  LEAD TO ITS REVOCATION AND TO THE ISSUANCE OF ANY ORDER THAT
MIGHT HAVE BEEN MADE AT THE TIME JUDGMENT WAS SUSPENDED. A COPY  OF  THE
ORDER OF SUSPENDED JUDGMENT MUST BE FURNISHED TO THE RESPONDENT.
  (E)  NOT  LATER THAN SIXTY DAYS BEFORE THE EXPIRATION OF THE PERIOD OF
SUSPENDED JUDGMENT, THE PETITIONER SHALL  FILE  A  REPORT,  PURSUANT  TO
SECTION  ONE THOUSAND FIFTY-EIGHT OF THIS ARTICLE, WITH THE FAMILY COURT
AND ALL PARTIES, INCLUDING THE RESPONDENT AND HIS OR HER  ATTORNEY,  THE
ATTORNEY  FOR  THE CHILD AND INTERVENORS, IF ANY, REGARDING THE RESPOND-
ENT'S COMPLIANCE WITH THE TERMS OF THE SUSPENDED  JUDGMENT.  THE  REPORT
SHALL  BE  REVIEWED  BY THE COURT ON THE SCHEDULED COURT DATE.  UNLESS A
MOTION OR ORDER TO SHOW CAUSE HAS BEEN FILED PRIOR TO THE EXPIRATION  OF
THE  PERIOD  OF  SUSPENDED  JUDGMENT  ALLEGING A VIOLATION OR SEEKING AN
EXTENSION OF THE PERIOD OF THE SUSPENDED  JUDGMENT,  THE  TERMS  OF  THE
DISPOSITION  OF  SUSPENDED  JUDGMENT  SHALL BE DEEMED SATISFIED. IN SUCH
EVENT, THE COURT'S JURISDICTION OVER THE PROCEEDING SHALL BE TERMINATED.
HOWEVER, THE ORDER OF FACT-FINDING AND THE PRESUMPTIVE  EFFECT  OF  SUCH
FINDING  UPON  RETENTION OF THE REPORT OF SUSPECTED ABUSE AND NEGLECT ON
THE STATE CENTRAL REGISTER IN ACCORDANCE WITH PARAGRAPH (B) OF  SUBDIVI-
SION EIGHT OF SECTION FOUR HUNDRED TWENTY-TWO OF THE SOCIAL SERVICES LAW
SHALL  REMAIN IN EFFECT UNLESS THE COURT GRANTS A MOTION BY THE RESPOND-
ENT TO VACATE THE ORDER OF FACT-FINDING PURSUANT TO SECTION ONE THOUSAND
SIXTY-ONE OF THIS ARTICLE.
  S 3. Section 1071 of the family court act, as amended by  chapter  437
of the laws of 2006, is amended to read as follows:

A. 7639                             5

  S 1071. Failure to comply with terms and conditions of suspended judg-
ment.  If,  prior to the expiration of the period of the suspended judg-
ment, a motion or order to show cause  is  filed  that  alleges  that  a
parent  or  other person legally responsible for a child's care violated
the  terms  and  conditions of a suspended judgment issued under section
one thousand fifty-three of this article, the period  of  the  suspended
judgment  shall be tolled AS OF THE DATE OF SUCH FILING pending disposi-
tion of the motion or order to show cause.  IF A MOTION OR ORDER TO SHOW
CAUSE ALLEGING A VIOLATION HAS BEEN  FILED  AND  THE  COURT  FINDS  THAT
REMOVAL  OF THE CHILD FROM THE HOME PENDING DISPOSITION OF THE MOTION OR
ORDER TO SHOW CAUSE IS NECESSARY PURSUANT TO SECTION ONE THOUSAND  TWEN-
TY-SEVEN  OF THIS ARTICLE, THE COURT MAY ISSUE AN ORDER PURSUANT TO SUCH
SECTION ONE THOUSAND  TWENTY-SEVEN.    NOTHING  IN  THIS  SECTION  SHALL
PRECLUDE THE CHILD PROTECTIVE AGENCY FROM TAKING EMERGENCY ACTION PURSU-
ANT  TO SECTION ONE THOUSAND TWENTY-FOUR OF THIS ARTICLE WHERE COMPELLED
BY THE TERMS OF THAT  SECTION.  If,  after  A  hearing  ON  THE  ALLEGED
VIOLATION,  the court is satisfied by competent proof that the parent or
other person violated the order of suspended  judgment,  the  court  may
revoke  the  suspension  of judgment and enter any order that might have
been made at the time judgment was suspended OR MAY EXTEND THE PERIOD OF
SUSPENDED JUDGMENT PURSUANT TO SUBDIVISION (B) OF SECTION  ONE  THOUSAND
FIFTY-THREE  OF  THIS  ARTICLE.  THE  COURT  SHALL STATE ITS REASONS FOR
REVOKING OR EXTENDING A PERIOD OF SUSPENDED JUDGMENT UNDER THIS SECTION.
  S 4. This act shall take effect on the ninetieth day  after  it  shall
have become a law.