Assembly Bill A8281

2009-2010 Legislative Session

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

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Archive: Last Bill Status - On Floor Calendar

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 19, 2010	amended on third reading 8281c
Jan 06, 2010	ordered to third reading cal.568 returned to assembly died in senate
Jun 22, 2009	referred to rules delivered to senate passed assembly ordered to third reading rules cal.602 rules report cal.602 reported reported referred to rules
Jun 19, 2009	print number 8281b
Jun 19, 2009	amend (t) and recommit to codes
Jun 18, 2009	print number 8281a
Jun 18, 2009	amend and recommit to codes
May 27, 2009	reported referred to codes
May 12, 2009	referred to children and families

Bill Amendments

Original

C (Active)

2009-A8281 - Details

Laws Affected:: Amd §812, Fam Ct Act; amd §530.11, CP L
Versions Introduced in 2011-2012 Legislative Session:: A316

2009-A8281 - Summary

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.

2009-A8281 - Bill Text download pdf

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

                                  8281

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              May 12, 2009
                               ___________

Introduced  by  M.  of A. ROBINSON -- (at request of the Office of Court
  Administration) -- read once and referred 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  and  family
  offenses committed by juveniles

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

  Section 1. Subdivision (g) of section 735 of the family court act,  as
added  by  section  7  of  part  E of chapter 57 of the laws of 2005, is
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-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD10369-01-9

A. 8281                             2

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  PART,
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  OR  ORDER  OF  PROTECTION, PURSUANT TO
SECTION SEVEN HUNDRED FORTY OR SEVEN HUNDRED FIFTY-NINE OF THIS ARTICLE,
BECAUSE THE RESPONDENT POSES AN IMMINENT RISK OF HARM TO  THE  POTENTIAL
PETITIONER OR MEMBER OF HIS OR HER HOUSEHOLD.
  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] PART, order  that
additional diversion attempts be undertaken by the designated lead agen-
cy. 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. Subdivision 1 of section 812 of the family court act  is  amended
by adding a new closing paragraph to read as follows:
  FAMILY  OFFENSES  ALLEGED  TO HAVE BEEN COMMITTED BY A CHILD UNDER THE
AGE OF EIGHTEEN AGAINST A PARENT OR GUARDIAN SHALL BE ADDRESSED PURSUANT
TO ARTICLE SEVEN OF THIS ACT.
  S 4. 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.

2009-A8281A - Details

Laws Affected:: Amd §812, Fam Ct Act; amd §530.11, CP L
Versions Introduced in 2011-2012 Legislative Session:: A316

2009-A8281A - Summary

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.

2009-A8281A - Bill Text download pdf

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

                                 8281--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              May 12, 2009
                               ___________

Introduced by M. of A. ROBINSON -- read once and referred to the Commit-
  tee on Children and Families -- reported and referred to the Committee
  on  Codes  -- committee discharged, bill amended, ordered reprinted as
  amended and recommitted to said committee

AN ACT to amend the family court act, in relation to warrants and orders
  of protection in persons in  need  of  supervision  cases  and  family
  offenses committed by juveniles

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

  Section 1. Subdivision (g) of section 735 of the family court act,  as
added  by  section  7  of  part  E of chapter 57 of the laws of 2005, is
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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10369-02-9

A. 8281--A                          2

  (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  PART,
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  OR  ORDER  OF  PROTECTION, PURSUANT TO
SECTION SEVEN HUNDRED FORTY OR SEVEN HUNDRED FIFTY-NINE OF THIS ARTICLE,
BECAUSE THE RESPONDENT POSES AN IMMINENT RISK OF HARM TO  THE  POTENTIAL
PETITIONER OR MEMBER OF HIS OR HER HOUSEHOLD.
  S  2.  Subdivision 1 of section 812 of the family court act is amended
by adding a new closing paragraph to read as follows:
  FAMILY OFFENSES ALLEGED TO HAVE BEEN COMMITTED BY A  CHILD  UNDER  THE
AGE OF EIGHTEEN AGAINST A PARENT OR GUARDIAN SHALL BE ADDRESSED PURSUANT
TO ARTICLE SEVEN OF THIS ACT.
  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.

2009-A8281B - Details

Laws Affected:: Amd §812, Fam Ct Act; amd §530.11, CP L
Versions Introduced in 2011-2012 Legislative Session:: A316

2009-A8281B - Summary

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.

2009-A8281B - Sponsor Memo

                                BILL NUMBER:A8281B

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 land-
mark legislation significantly expanding the requirements for services
to be provided to children and families as a means of preventing unnec-
essary 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 escalat-
ing means of evading the clear requirements and protections for youth,
as well as the family services available, under the 2005 PINS legis-
lation. 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 accord-
ing the Family Court exclusive jurisdiction over family offenses involv-
ing juveniles not criminally responsible by reason of age, generally
juveniles under the age of 16 or, in the case of juvenile offenses pros-
ecuted in criminal courts, 13, 14 or 15. See Crim Procedure Law
§530.11(1); Penal Law §§10.00(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 accord-
ance 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 collec-
tively 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 guar-
dian, 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 §§249, 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 constitu-
tional 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 8 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 Proce-
dure 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 neglect-
ing them until they reach age 18. See Family Court Act §§413(1), 1012;
Social Services Law §101. Unmarried minors may not obtain public assist-
ance independent of their parents until they reach age 18. 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, contra-
venes 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 8 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, inter alia, 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 Arti-
cle 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. deniecf 88 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:
A10525 (Reported to Rules)

2009-A8281B - Bill Text download pdf

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

                                 8281--B

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              May 12, 2009
                               ___________

Introduced by M. of A. ROBINSON -- read once and referred to the Commit-
  tee on Children and Families -- reported and referred to the Committee
  on  Codes  -- committee discharged, bill amended, ordered reprinted as
  amended and recommitted to said committee -- again reported from  said
  committee  with amendments, ordered reprinted as amended and recommit-
  ted to said committee

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 326 of the laws of 2008,  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,  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 ARTI-
CLE SEVEN, RATHER THAN THIS ARTICLE,  OF  THIS  ACT.  Notwithstanding  a
complainant's  election  to  proceed in family court, the criminal court

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10369-03-9

A. 8281--B                          2

shall not be divested of jurisdiction to hear a family offense  proceed-
ing  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 326 of the laws of 2008,
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, 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 ARTI-
CLE  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.

2009-A8281C (ACTIVE) - Details

Laws Affected:: Amd §812, Fam Ct Act; amd §530.11, CP L
Versions Introduced in 2011-2012 Legislative Session:: A316

2009-A8281C (ACTIVE) - Summary

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.

2009-A8281C (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A8281C

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  Crim  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, inter  ilia,  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. deniecf 88 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: A10525 (Reported to Rules)

2009-A8281C (ACTIVE) - Bill Text download pdf

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

                                 8281--C
                                                        Cal. No. 568

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              May 12, 2009
                               ___________

Introduced by M. of A. ROBINSON -- read once and referred to the Commit-
  tee on Children and Families -- reported and referred to the Committee
  on  Codes  -- committee discharged, bill amended, ordered reprinted as
  amended and recommitted to said committee -- again reported from  said
  committee  with amendments, ordered reprinted as amended and recommit-
  ted to said committee -- reported from committee, advanced to a  third
  reading,  amended  and  ordered  reprinted, retaining its place on the
  order of third reading

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

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

                                                           LBD10369-04-0

A. 8281--C                          2

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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ROBINSON

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