BILL NUMBER:  S4830

 TITLE OF BILL :  An act to amend the family court act, in relation to
violations of probation and conditional discharge in juvenile
delinquency cases in family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

Section 360.2(1) of the Family Court Act specifically delegates solely
to local probation departments the authority to file petitions for
violations of probation or conditional discharge in juvenile
delinquency cases in Family Court, although section 360.3(2)
authorizes such petitions to be verified and subscribed by either a
local probation department or a presentment agency. The failure to
include presentment agencies in subdivision one of that section has
left a gap in the law - and, importantly, a gap in enforcement of
conditions of probation and conditional discharge - that has left
Family Court powerless to address serious violations of its
dispositional orders in circumstances in which local probation
departments do not file violation petitions.

This measure would fill this gap by amending section 360.2 to clarify
that presentment agencies may not only verify and subscribe violation
petitions but may also file them.  Presentment agencies, particularly
              

in cases of conditional discharge where probation departments do not
monitor the juveniles, are often aware of violations when probation
departments are not. These occur most often in cases of new juvenile
delinquency adjudications or criminal convictions, clearly grounds for
violations to be filed for both conditional discharge and probation
dispositions. See Family Court Act §§ 353.1(5), 353.2(4).  Judges have
reported numerous instances in which violations have come to the
attention of Family Court that have not been the subjects of violation
petitions, instances in which the Family Courts thus lack authority to
take needed action.

In the absence of the filing of a petition alleging a violation of
probation, the powers of the Family Court are limited. In Matter of
Jazmin A., 15 N.Y.3d 439 (2010), the Court of Appeals held that Family
Court lacked authority to order detention of a juvenile,
notwithstanding evidence presented to the court of a violation of
probation, because the local department of probation had not yet filed
a violation petition in accordance with section 360.2 of the Family
Court Act. Two years later, in Matter of Rayshawn P., 103 A.D.3d 31
(1st Dept., 2012), the Appellate Division, First Department, answered
the question explicitly left open by the Court of Appeals in Jazmin A.
The Court ruled that Family Court could not rely upon its general
authority under section 355.1(1)(b) of the Family Court Act to sua
sponte order a motion to modify probation conditions to enhanced
supervision for an additional period of time and to direct detention
pending resolution of the motion. Family Court's application of
section 355.1 was held to constitute an end-run around the more
specific statutory requirements for violations of probation under
section 360.2 et seq of the Family Court Act, including, inter alio,
the Legislature's specific delegation of authority to file violation
petitions to local probation departments.

With respect to dispositions of conditional discharge, section 360.2
similarly delegates to local probation departments the authority to
file violation petitions. However, pursuant to section 353.1(2) of the
Family Court Act, Family Court has somewhat broader authority, as
Family Courts are permitted to modify or enlarge the conditions upon a
substantial change of circumstances so long as the respondent juvenile
is physically present, although presence is not required if the
conditions are relaxed or eliminated. Nonetheless, this authority does
not ensure accountability of youth for violations since, while a
Family Court may calendar a petition to modify or enlarge conditions
sua sponte, it is hampered in its ability to adjudicate it in the
absence of either a presentment agency or probation department to
present evidence to prove the violations alleged.

Clarifying that presentment agencies, as well as probation
departments, may file petitions alleging violations of probation or
conditional discharge will ensure that conduct by juveniles in
violation of these dispositions will be able to be addressed
effectively by Family Court. Without the ability to hold juveniles
accountable for their conduct, the court may not fulfill its dual
statutory duties to further the best interests of the juveniles while
safeguarding the community.

This measure, which would have no fiscal impact upon the State, would
take effect immediately, and shall apply to any adjudicated juvenile
delinquent placed on probation on or after such effective date.

 LEGISLATIVE HISTORY :

None. New proposal.