Bill S6981-2009

Requires the prosecution of juveniles, who are under the age of eighteen and who commit family offenses against his or her parent or legal guardian, under article VII of the family court act

Requires the prosecution of juveniles who commit family offenses against his or her parent or legal guardian under article seven of the family court act, rather than article eight of such act.

Details

Actions

  • Jun 10, 2010: ADVANCED TO THIRD READING
  • Jun 9, 2010: 2ND REPORT CAL.
  • Jun 8, 2010: 1ST REPORT CAL.843
  • May 11, 2010: REPORTED AND COMMITTED TO CODES
  • Mar 3, 2010: REFERRED TO CHILDREN AND FAMILIES

Votes

VOTE: COMMITTEE VOTE: - Children and Families - May 11, 2010
Ayes (3): Montgomery, Schneiderman, Huntley
Ayes W/R (2): Duane, McDonald
Nays (1): Marcellino
VOTE: COMMITTEE VOTE: - Codes - Jun 8, 2010
Ayes (10): Schneiderman, Breslin, Duane, Parker, Huntley, Sampson, Klein, Perkins, Squadron, DeFrancisco
Ayes W/R (2): Golden, Lanza
Nays (4): Volker, Saland, Bonacic, Flanagan

Memo

 BILL NUMBER:  S6981

TITLE OF BILL : An act to amend the family court act and the criminal procedure law, in relation to family offenses alleged to have been committed by juveniles under the age of eighteen

As part of the 2005 New York State budget, the Legislature enacted landmark legislation significantly expanding the requirements for services to be provided to children and families as a means of preventing unnecessary prosecutions and costly out-of-home placements of Persons in Need of Supervision (PINS) cases. See L. 2005, c. 57. Unfortunately, all too often, prosecutions of juveniles by their parents under the family offense provisions of sections 530.11 et seq of the Criminal Procedure Law and Article 8 of the Family Court Act have become a rapidly escalating means of evading the clear requirements and protections for youth, as well as the family services available, under the 2005 PINS legislation. See People v Simmey R., 12 Misc3d 1189(A)(Crim Ct Kings Co, 2006). The increase in the PINS age ceiling to 18, thus expanding Family Court's jurisdiction to address family dysfunction involving older adolescents, was not accompanied by any change in statutes according the Family Court exclusive jurisdiction over family offenses involving juveniles not criminally responsible by reason of age, generally juveniles under the age of 16 or, in the case of juvenile offenses prosecuted in criminal courts, 13, 14 or 15. See Criminal Procedure Law §530.11(1); Penal Law §510.00(18), 30; Family Court Act §812(1).

This measure would close that loophole by specifying that family offenses committed by juveniles under the age of 18-against -their parents or guardians should be dealt with as PINS proceedings in accordance with Article 7 of the Family Court Act, rather than as family offense proceedings pursuant to Article 8 of that Act. The extension of PINS jurisdiction to juveniles up to the age of 18 and the delineation of diversion requirements that must be followed in such cases collectively reflect the clear legislative intent that intra-familial problems arising between parents and children in such cases be addressed through utilization of the comprehensive statutory framework of Article 7.

Article 8 of the Family Court Act is an inappropriate vehicle for proceeding against juveniles as it lacks important statutory protections - some constitutionally required and some required by federal law - applicable to juveniles, including, inter alia, the right to a law guardian, proof beyond a reasonable doubt, consideration for adjustment or diversion, detention and placement in juvenile facilities separate and apart from adults, and orders of disposition appropriate to their needs and best interests. See, e.g., Family Court Act §5249, 304.1, 308.1, 342.2, 352.2,720,734,735,754. The rights to law guardian representation and to proof beyond a reasonable doubt have been held to be of constitutional magnitude and, under New York law, are equally applicable in juvenile delinquency and PINS proceedings. See In re Gault, 387 U.S. 1 (1967); In re Winship, 397 U.S. 358 (1970); In re Iris R, 33 N.Y.2d 987 (1974). Unlike attorney representation in Article B proceedings pursuant to section 262 of the Family Court Act, law guardian representation in juvenile delinquency and PINS cases is presumptively non-waivable. See Family Court Act §249-a. The remedies of exclusion and incarceration available for family offense proceedings under both the Criminal Procedure Law and Article 8 are wholly inappropriate when applied in the context of dependent children prosecuted by their parents or guardians. See People v Simmey R, supra. Parents have a responsibility to support their children until age 21 and may be charged with abusing or neglecting them until they reach age 18. See Family Court Act §§413(1), 1012; Social Services Law §101. Unmarried minors may not obtain public assistance independent of their parents until they reach age 19. See Social Services Law § 131(6). Thus, orders of protection excluding respondents from their homes, a common remedy in family offense cases, should not be permitted in cases involving juveniles under the age of 18, as this remedy would relegate children to the streets with no means of support. Further, incarceration in jail for violations of orders of protection, authorized under Article 8 for up to six months per violation, contravenes federal law when applied to juvenile respondents. The proscription against confinement of juveniles in adult jails, lock-ups and prisons, contained in New York law (Family Court Act §§ 304.1(2),720(1)), is required as a condition of State funding under the Federal Juvenile Justice and Delinquency Prevention Act of 1974,42 U.S.C. §5633(a)(13). No authority exists under Article 6 or under the Executive Law to detain or place children charged with family offenses in juvenile facilities.

The PINS statute provides full protection for victims of family offenses committed by juveniles against parents and guardians, while, at the same time, furthering the special needs of juveniles and retaining the constitutional and statutory protections applicable to them. PINS cases may be initiated by petitions filed by peace or police officers, parents or legal guardians or "any person who has suffered injury as a result of the alleged activity of a person alleged to be in need of supervision, or a witness to such activity." See Family Court Act §733. Article 7 authorizes issuance of orders of protection and temporary orders of protection, permits detention in juvenile non-secure detention and foster care facilities in appropriate cases, permits orders of restitution, and provides for dispositions in juvenile programs tailored specifically to juveniles' needs and their presenting problems. See Family Court Act §§720, 740, 754, 758-a, 759. Since Article 7 contains each of these remedies, the Family Court Act should be amended to prohibit a juvenile to be adjudicated both for a family offense and as a PINS. The dual adjudications of 15-year old Latoya D. Under both Articles 7 and 8 of the Family Court should have been deemed both inappropriate and unnecessary. See Marsha C. v. Latoya D., 224 AD2d 522 (2d Dept, 1996), leave to app. deniecf88 NY2d 804 (1996), and Matter of Latoya D., 224 AD2d 524 (2d Dept., 1996), leave to app.denied, 88 NY2d 804 (1996).

By requiring that juveniles who commit family offenses against their parents or guardians be dealt with pursuant to Article 7, rather than Article 0, of the Family Court Act, this measure will assure that family offenses committed by such juveniles are addressed appropriately and in accordance with both State and federal law.

This measure, which would have no fiscal impact on the State, would take 90 days after it shall have become a law and shall apply to petitions filed on or after such effective date.

PREVIOUS LEGISLATIVE HISTORY : A.10525 (Reported to Rules)

EFFECTIVE DATE : On the ninetieth day after it shall have become a law and shall apply to petitions filed on or after such effective date.

Text

STATE OF NEW YORK ________________________________________________________________________ 6981 IN SENATE March 3, 2010 ___________
Introduced by Sen. MONTGOMERY -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families AN ACT to amend the family court act and the criminal procedure law, in relation to family offenses alleged to have been committed by juve- niles under the age of eighteen THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The opening paragraph of subdivision 1 of section 812 of the family court act, as amended by chapter 476 of the laws of 2009, is amended to read as follows: The family court and the criminal courts shall have concurrent juris- diction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. FAMILY OFFENSES ALLEGED TO HAVE BEEN COMMITTED BY A CHILD UNDER THE AGE OF EIGHTEEN AGAINST A PARENT OR GUARDIAN SHALL BE ADDRESSED IN ACCORDANCE WITH ARTICLE SEVEN, RATHER THAN THIS ARTICLE, OF THIS ACT. Notwithstanding a complainant's election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. For purposes of this article, "disorderly conduct" includes disorderly conduct not in a public place. For purposes of this article, "members of the same family or household" shall mean the following:
S 2. The opening paragraph of subdivision 1 of section 530.11 of the criminal procedure law, as amended by chapter 476 of the laws of 2009, is amended to read as follows: The family court and the criminal courts shall have concurrent juris- diction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. FAMILY OFFENSES ALLEGED TO HAVE BEEN COMMITTED BY A CHILD UNDER THE AGE OF EIGHTEEN AGAINST A PARENT OR GUARDIAN SHALL BE ADDRESSED IN ACCORDANCE WITH ARTICLE SEVEN OF THE FAMILY COURT ACT. Notwithstanding a complainant's election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. For purposes of this section, "disorderly conduct" includes disorderly conduct not in a public place. For purposes of this section, "members of the same family or household" with respect to a proceeding in the criminal courts shall mean the following: S 3. This act shall take effect on the ninetieth day after it shall have become a law and shall apply to petitions filed on or after such effective date.

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