Senate Bill S3872

                                 BILL NUMBER:  S3872

 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 and
family offenses committed by juveniles


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. This measure would amend the
Family Court Act, in relation to warrants and orders of protection in
persons in need of supervision ("PINS") cases and to the handling of
family offenses committed by juveniles.

I. Warrants and orders of protection in PINS cases.

PINS legislation enacted in 2005 added statewide uniformity to
provisions of law regarding diversion of cases from Family Court and
furthered salutary legislative goals of reducing unnecessary PINS
prosecutions and placements and of ensuring that families in crisis
receive appropriate services. See L. 2005, c. 57, Part E. However, the
new statute is overly restrictive in that it permits Family Court to
refer youth and families for diversion services only upon a youth's
initial appearance, although diversion may also be effective at a
later point and, indeed, the appropriateness of divers ion services
              

may only become clear at a later point. Further, the statute
eliminates 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.
Accordingly, this measure would permit diversion referrals at any
time. It would further 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 section 742 of the Family Court Act 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.  Under such circumstances, 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
5 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
section 742(B) of the Family Court Act, 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 measure would permit a potential PINS petitioner to file a
PINS petition in order to request an 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, that is, 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 section 742(b) of the Family Court Act, unless the Court
determines that the child continues to pose an imminent risk to the
petitioner or a household member or 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 then
would 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,
the salutary purposes of the PINS law 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.

II. Handling family offenses committed by juveniles.

In 2005, the Legislature enacted landmark legislation significantly
expanding the requirements for services to be provided children and
families as a means of preventing unnecessary prosecutions and costly
out-of-home placements of PINS. See L. 2005, c. 57.  Unfortunately,
all too often, prosecutions of juveniles by their parents under the
family offense provisions of Criminal Procedure Law §530.11, et seq.,
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 Misc.3d 1189(A), (Crim. Ct.,
Kings Co., July 5, 2006). The increase in the PINS age ceiling to 18,
thus expanding the jurisdiction of Family Court to address family
dysfunction involving older adolescents, was not accompanied by any
change in the statutes according the Family Court exclusive
jurisdiction over family offenses involving juveniles not criminally
responsible by reason of age - generally juveniles under age 16 or, in
the case of juvenile offenses prosecuted in criminal courts, 13, 14 or
15. See Crim. Proc. Law §530.11(1); Penal Law §§10.00(18), 30; Fam.
Ct. Act §812(1).

This measure is proposed, therefore, to close that loophole by
specifying that family offenses committed by juveniles under 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 the
Family Court Act. The extension of PINS jurisdiction to juveniles up
to age 18 and the delineation of diversion requirements to be followed
in such cases collectively reflect a clear legislative intent that
intra-familial problems arising between parents and children in such
cases should 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 an attorney, 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
legal 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 8 proceedings pursuant to section 262 of the Family Court Act,
legal 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; Paula 5 v. Steven 5./154 Misc.2d 567 (Fam. Ct., Ulster Co.,
1992). In Paula 5., Ulster County Family Court substituted a PINS
petition for a family offense petition on the ground that PINS
proceedings offer more appropriate dispositional alternatives,
including placement in treatment, rather than jail, facilities.
Parents have a responsibility to support their children until they
reach age 21 and may be charged with abusing or neglecting them until
the children 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 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, 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
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 the
juveniles' needs and their 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
adjudication of a juvenile 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 Act should have been deemed both
inappropriate and unnecessary. See Marsha C v. Latoya D., 224 A.D.2d
522 (2d Dept., 1996), leave to app. denied, 88 N.Y.2d 804 (1996), and
Matter of Latoya D., 224 A.D.2d 524 (2d Dept., 1996), leave to app.
denied, 88 N.Y.2d 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 8, 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 upon the State, would
take effect 90 days after becoming a law.

 2008 LEGISLATIVE HISTORY :

S 4533-a + S 4534-a (Social Services, Children and Families Comm.)/
A.8860-a (reported to Codes Comm.) and A.10525 (3rd reading).