senate Bill S4050B

Vetoed By Governor
2011-2012 Legislative Session

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

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Archive: Last Bill Status Via A7599 - Vetoed by Governor


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Sep 23, 2011 tabled
vetoed memo.65
Sep 12, 2011 delivered to governor
Jun 22, 2011 returned to assembly
passed senate
3rd reading cal.300
substituted for s4050b
Jun 22, 2011 substituted by a7599b
Jun 20, 2011 amended on third reading 4050b
Jun 14, 2011 amended on third reading 4050a
vote reconsidered - restored to third reading
Jun 14, 2011 returned to senate
recalled from assembly
May 02, 2011 referred to children and families
delivered to assembly
passed senate
Apr 06, 2011 advanced to third reading
Apr 05, 2011 2nd report cal.
Apr 04, 2011 1st report cal.300
Mar 15, 2011 referred to children and families

Votes

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Apr 4, 2011 - Children and Families committee Vote

S4050
5
0
committee
5
Aye
0
Nay
0
Aye with Reservations
1
Absent
0
Excused
0
Abstained
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Committee Vote: Apr 4, 2011

absent (1)

Bill Amendments

Original
A
B (Active)
Original
A
B (Active)

S4050 - Bill Details

See Assembly Version of this Bill:
A7599B
Law Section:
Family Court Act
Laws Affected:
Amd §§735 & 742, Fam Ct Act

S4050 - Bill Texts

view summary

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

view 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.

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                    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.

S4050A - Bill Details

See Assembly Version of this Bill:
A7599B
Law Section:
Family Court Act
Laws Affected:
Amd §§735 & 742, Fam Ct Act

S4050A - Bill Texts

view summary

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

view sponsor memo
BILL NUMBER:S4050A

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

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.

The landmark reform of the persons in need of supervision (PINS)
statute, enacted as part of the 2005 New York State budget, added
statewide uniformity to the provisions 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 statute 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 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. 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 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 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 can1lot 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.
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 the youth and his or her
family would benefit from 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 proposal 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
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.

2011 LEGISLATIVE HISTORY:
Senate 4050 (Sen. Gallivan) [Passed]
Assembly 7599 (M. of A. Robinson) [Codes]

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

                                 4050--A
    Cal. No. 300

                       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 -- reported favor-
  ably from said committee, ordered to first and second report,  ordered
  to  a  third  reading, passed by Senate and delivered to the Assembly,
  recalled, vote reconsidered, restored to third  reading,  amended  and
  ordered reprinted, retaining its place in the order of third reading

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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09516-04-1

S. 4050--A                          2

  (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
  (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 THERE IS NO SUBSTANTIAL LIKELI-
HOOD 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

S. 4050--A                          3

HOUSEHOLD OR THAT THERE IS NO SUBSTANTIAL LIKELIHOOD THAT THE  YOUTH  OR
HIS  OR  HER FAMILY WOULD BENEFIT FROM DIVERSION ATTEMPTS. If the desig-
nated 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.

S4050B (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A7599B
Law Section:
Family Court Act
Laws Affected:
Amd §§735 & 742, Fam Ct Act

S4050B (ACTIVE) - Bill Texts

view summary

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

view sponsor memo
BILL NUMBER:S4050B

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

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.

The landmark reform of the persons in need of supervision (PINS)
statute, enacted as part of the 2005 New York State budget, added
statewide uniformity to the provisions 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 statute 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 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. 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 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 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 c:annoe 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. 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 the youth and his or her family would
benefit from 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 chat 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 a
of the Family Court Act as a means of evading the diversion
requirements of the PINS statute. Article B, 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 proposal 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 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.

2011 LEGISLATIVE HISTORY:
Senate 4050A (Sen. Gallivan)
Passed
Assembly 7599 (M. of A. Robinson)
Codes

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

                                 4050--B
    Cal. No. 300

                       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 -- reported favor-
  ably from said committee, ordered to first and second report,  ordered
  to  a  third  reading, passed by Senate and delivered to the Assembly,
  recalled, vote reconsidered, restored to third  reading,  amended  and
  ordered  reprinted,  retaining its place in the order of third reading
  -- again amended and ordered reprinted, retaining  its  place  in  the
  order of third reading

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09516-09-1

S. 4050--B                          2

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
  (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  AND  THE  POTENTIAL PETITIONER HAS MET WITH THE DESIGNATED LEAD
AGENCY WHICH MUST MAKE EFFORTS TO LOCATE THE CHILD AND THOSE EFFORTS  BY
THE DESIGNATED LEAD AGENCY HAVE NOT LOCATED THE CHILD; 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 THERE IS NO  SUBSTANTIAL  LIKELI-
HOOD  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-

S. 4050--B                          3

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
HOUSEHOLD OR THAT THERE IS NO SUBSTANTIAL LIKELIHOOD THAT THE  YOUTH  OR
HIS  OR  HER FAMILY WOULD BENEFIT FROM DIVERSION ATTEMPTS. If the desig-
nated 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.

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