Relates to warrants and orders of protection in persons in need of supervision cases.
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
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.
The landmark reform of the persons in need of supervision (PINS) statute, enacted as part of the 2005 New York State budget, added statewide uniformity to the provisions 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 statute is overly restrictive as it permits 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 statute eliminates 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 §742 to permit the 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 c:annoe be located. In such case, the child cannot appear at the diversion conference and the designated diversion agency is, therefore, unable 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 §742(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 the youth and his or her family would benefit from 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 §742(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 chat 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 a of the Family Court Act as a means of evading the diversion requirements of the PINS statute. Article B, 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 proposal 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 were 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.
2011 LEGISLATIVE HISTORY: Senate 4050A (Sen. Gallivan) Passed Assembly 7599 (M. of A. Robinson) Codes
STATE OF NEW YORK ________________________________________________________________________ 4050--B Cal. No. 300 2011-2012 Regular Sessions IN SENATE March 15, 2011 ___________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 Children and Families -- reported favor- ably from said committee, ordered to first and second report, ordered to a third reading, passed by Senate and delivered to the Assembly, recalled, vote reconsidered, restored to third reading, amended and ordered reprinted, retaining its place in the order of third reading -- again amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the family court act, in relation to warrants and orders of protection in persons in need of supervision cases THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions (g) and (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 to read as follows: (g) (i) The designated lead agency shall promptly give written notice to the potential petitioner whenever attempts to prevent the filing of a petition have terminated, and shall indicate in such notice whether efforts were successful. The notice shall also detail the diligent attempts made to divert the case if a determination has been made that there is no substantial likelihood that the youth will benefit from further attempts. No persons in need of supervision petition may be filed pursuant to this article during the period the designated lead agency is providing diversion services. A finding by the designated lead agency that the case has been successfully diverted shall constitute presumptive evidence that the underlying allegations have been success- fully resolved in any petition based upon the same factual allegations. No petition may be filed pursuant to this article by the parent or other person legally responsible for the youth where diversion services haveEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09516-09-1 S. 4050--B 2
been terminated because of the failure of the parent or other person legally responsible for the youth to consent to or actively participate. (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 there is no bar to the filing of the petition as the poten- tial 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 ARTICLE, BECAUSE THE RESPONDENT HAS ABSCONDED FROM THE HOME AND IS UNABLE TO BE LOCATED AND THE POTENTIAL PETITIONER HAS MET WITH THE DESIGNATED LEAD AGENCY WHICH MUST MAKE EFFORTS TO LOCATE THE CHILD AND THOSE EFFORTS BY THE DESIGNATED LEAD AGENCY HAVE NOT LOCATED THE CHILD; OR (B) THE POTENTIAL PETITIONER IS REQUESTING THAT THE COURT ISSUE A TEMPORARY ORDER OF PROTECTION, PURSUANT TO SECTION SEVEN HUNDRED FORTY OF THIS ARTICLE, BECAUSE THE RESPONDENT POSES AN IMMINENT RISK OF HARM TO THE POTENTIAL PETITIONER OR MEMBER OF HIS OR HER HOUSEHOLD. (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]. THE COURT may, AT ANY TIME, subject to the provisions of section seven hundred forty-eight of this article, order that addi- tional 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 DIVERSION ATTEMPTS, UNLESS THE COURT DETERMINES THAT THERE IS A SUBSTANTIAL LIKE- LIHOOD THAT THE CHILD WOULD ABSCOND OR THERE IS NO SUBSTANTIAL LIKELI- HOOD 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-S. 4050--B 3
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 HOUSEHOLD OR THAT THERE IS NO SUBSTANTIAL LIKELIHOOD THAT THE YOUTH OR HIS OR HER FAMILY WOULD BENEFIT FROM DIVERSION ATTEMPTS. If the desig- nated 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.