S7586-2011 Actions

• Jun 5, 2012: REFERRED TO RULES

S7586-2011 Memo

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 �742 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 �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 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 �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 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.

S7586-2011 Text

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

                                    7586

                              I N  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.