senate Bill S4050

Amended

Relates to warrants and orders of protection in persons in need of supervision cases

download pdf

Sponsor

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
view actions

actions

  • 15 / Mar / 2011
    • REFERRED TO CHILDREN AND FAMILIES
  • 04 / Apr / 2011
    • 1ST REPORT CAL.300
  • 05 / Apr / 2011
    • 2ND REPORT CAL.
  • 06 / Apr / 2011
    • ADVANCED TO THIRD READING
  • 02 / May / 2011
    • PASSED SENATE
  • 02 / May / 2011
    • DELIVERED TO ASSEMBLY
  • 02 / May / 2011
    • REFERRED TO CHILDREN AND FAMILIES
  • 14 / Jun / 2011
    • RECALLED FROM ASSEMBLY
  • 14 / Jun / 2011
    • RETURNED TO SENATE
  • 14 / Jun / 2011
    • VOTE RECONSIDERED - RESTORED TO THIRD READING
  • 14 / Jun / 2011
    • AMENDED ON THIRD READING 4050A
  • 20 / Jun / 2011
    • AMENDED ON THIRD READING 4050B
  • 22 / Jun / 2011
    • SUBSTITUTED BY A7599B

Summary

Relates to warrants and orders of protection in persons in need of supervision cases.

do you support this bill?

Bill Details

See Assembly Version of this Bill:
A7599
Versions:
S4050
S4050A
S4050B
Legislative Cycle:
2011-2012
Law Section:
Family Court Act
Laws Affected:
Amd §§735 & 742, Fam Ct Act

Sponsor Memo

BILL NUMBER:S4050

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

PURPOSE:

SUMMARY OF PROVISIONS:

EXISTING LAW:

JUSTIFICATION:
This is one in a series of bills 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 supervision (PINS) statue,
enacted as part of the 2005 New York State budget, added statewide
uniformity to the provisions regarding diversions 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. However, the
statue 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 statue eliminates the
ability of parents to obtain necessary emergency relief in the
infrequent, but alarming, cases in which their children pose and
imminent risk to themselves, their parents or their families. This
bill offers the measure to permit diversion referrals at any time.
Moreover, the bill would carve out
two narrowly-defined exceptions to the pre-petition diversion
requirements, thus restoring an essential emergency remedies that
existed in the PINS statue prior to the 2005 reform.

First, this bill 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 accusedjuvenile's first appearance. In some cases,
the youth and family may become amendable 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, this bill would permit a potentials PINS petitioner to file a
PINS petition and request a warrant for a child who has absconded and
cannot 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. This warrant exception would provide an
avenue of relief for parents in critical emergency situation 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
of 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 such a referral would be
contrary to the child's best interests. 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, this bill 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
Comi 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 of that it would be contrary to the child's best
interests. 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
means of evading the diversion requirements of the PINS statue.
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 bill 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 statue
would provide broader avenues of relief to resolve family problems.

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

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
The ninetieth day after it shall have become a law.

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

                                  4050

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             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

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  have
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09516-01-1

S. 4050                             2

  (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; 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 THAT IT WOULD BE CONTRARY TO THE
CHILD'S BEST INTERESTS FOR SUCH EFFORTS TO BE UNDERTAKEN. AT THE INITIAL
APPEARANCE OF THE RESPONDENT ON A  PETITION  FILED  IN  ACCORDANCE  WITH
SUBPARAGRAPH  (B) OF PARAGRAPH (III) OF SUBDIVISION (G) OF SECTION SEVEN
HUNDRED THIRTY-FIVE OF THIS ARTICLE, THE COURT SHALL REFER THE  RESPOND-
ENT  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  IT
WOULD  BE  CONTRARY TO THE CHILD'S BEST INTERESTS FOR SUCH EFFORTS TO BE
UNDERTAKEN. 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.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.