Senate Bill S6981

                                 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.