Senate Bill S9354

                                 
BILL NUMBER: S9354

SPONSOR: BRISPORT
 
TITLE OF BILL:

An act to amend the family court act, in relation to orders of
protection where the respondent is a minor who resides with a parent or
other legally responsible person or other party

 
SUMMARY OF PROVISIONS:

Section 1: In a Persons in Need of Supervision (PINS) proceeding brought
by a Parent or other person legally responsible, with whom the Respond-
ent child resides, Family Court Act § 759 would be amended to provide
that no order of protection may be issued that would require the
Respondent to stay away from the residence if the Respondent has no
possible alternative residence either with a relative or other suitable
person or in a pre-dispositional or dispositional placement.

Section 2: In a family offense proceeding brought by a parent or other
person legally responsible, against a child under the age of eighteen,
Family Court Act § 821-a would be amended to provide that the proceeding
could be converted into a PINS proceeding at any time and, in the case
              

of a child under the age of twelve, such a conversion would be mandato-
ry. It would also permit the appointment of a guardian ad litem if the
court deems it appropriate and to clarify that the child would not be
subject to the jail commitment and bail provisions applicable in other
family offense cases.

Section 3: The dispositional alternatives applicable in all family
offense proceedings under Family Court Act § 841 would be amended to add
mental health counseling to the possible probation conditions and to
delineate all of the possible probation conditions as possible condi-
tions for suspended judgments.

Section 4: In a family offense proceeding brought by a parent or other
person legally responsible with whom a Respondent child under the age of
eighteen resides, Family Court Act § 842 would be amended to provide
that no order of protection may be issued that would require the
Respondent to stay away from the residence if the Respondent has no
possible alternative residence with a relative or other suitable person.

Section 5: The effective date of the legislation would be the 120th day
after enactment.

 
JUSTIFICATION:

Among the greatest challenges facing families in New York State are
cases in which parents or other persons legally responsible for a child
under eighteen residing with them require assistance to stop alleged
violence by the child against the parent, the child's sibling, or other
members of the household. The juvenile respondent in such a case is in
an adversarial relationship with the petitioning parent or other person
and thus may lack an adult individual to act as a supportive guardian ad
litem. Family offense proceedings under Article 8 of the Family Court
Act are not geared for these types of cases and include jail as the only
out-of-home placement possibility, which would not be lawful under
either State or Federal law. Neither diversion to programs, nor the
possibilities for foster placements either as temporary or dispositional
options, are available, as they would be in Persons in Need of Super-
vision (PINS) cases. Cf, Family Court Act §§ 720, 735, 739, 742 and 756.
Moreover, neither the PINS, nor the family offense, statutes regarding
orders of protection provide any protection against youth becoming home-
less as a result of an order excluding them from their own homes. This
measure would remedy each of these deficiencies.

Homelessness among youth is a rapidly escalating problem that presents
special challenges in light of the limited network of runaway and home-
less youth shelter beds. For example, in the first six months of 2024 in
New York City, "1,127 young people could not be placed in any youth
beds," although none had declined available beds. See K. Homan, "Number
of City Youth with Nowhere to Sleep at Night Climbs," The City, Sept.
16, 2024. By bringing PINS or family offense proceedings against their
children, parents and guardians should not be permitted to add to this
problem by excluding children, who are still dependent upon their
parents or guardians, from their homes. Judges in family offense and
PINS cases should thus ensure that alternatives to exclusion have been
explored and should not issue stay-away orders in such cases if the
effect would render the children homeless.  Significantly, a family
offense proceeding brought by parents or guardians against their chil-
dren does not obviate the parents' or guardians' legal responsibility to
support them until the age of 21, pursuant to Family Court Act §
413(1)(a).

Additionally, the bill recognizes that the possibilities for diversion
to appropriate programs, as well as for temporary foster care place-
ments, both at the pre-dispositional and dispositional stages of a PINS
proceeding, are vital in these types of cases and are far more appropri-
ate than the limited alternatives available under the family offense
provisions of the Family Court Act. The option to convert such a family
offense case to a PINS and the requirement to do so if the action is
brought against a child under the age of twelve, would provide essential
tools for the Family Court to resolve the difficult family crises in
front of them. In fact, noting that the remedy for violations of orders
of protection in matters involving adult respondents, including, inter
alia, commitment to jail, would "not be a viable alternative" in a case
of a juvenile respondent, the Family Court, Ulster County, in PAULA S v.
STEVEN S., 154 Misc. 2d 567 (Fam.  Ct., Ulster Co., 1992), converted a
family offense case into a PINS proceeding to afford a more appropriate
range of dispositions.

Further, for all family offense cases brought against youth under eigh-
teen, the explicit authorization for the Family Court to appoint a guar-
dian ad litem if the court deems it appropriate and to require the court
to include a notice to the youth of that possibility is essential. In
MATTER OF COHEN v. ESCOBAR, 219 A.D.3d 726 (2d Dept., 2023), leave to
appeal denied; 40 N.Y.3d 908 (2023), the Appellate Division, Second
Department held that a seventeen-year old youth, against whom a family
offense was filed by his former girlfriend, lacked the capacity to
appear in Family Court as a respondent in the absence of a parent, guar-
dian, person having legal custody or guardian ad litem, thus rendering
void the adjudication and order of protection against him. The presence
of an attorney representing the youth did not cure the incapacity; nor
did the mother's presence at an earlier hearing, since the Family Court
"prohibited her from appearing on Escabar's behalf."


Finally, the addition of mental health counseling as a possible condi-
tion of probation and to add that and all of the other probation condi-
tions as possible conditions of suspended judgments in family offense
proceedings would benefit all parties in Family Court family offense
proceedings, youth and adults alike. There is no question that mental
health counseling would be a much-needed dispositional option as a
condition of probation in many family offense cases brought against
youth - but it is frequently warranted for many cases, regardless of the
age of the accused. Likewise, for the many counties in New York State
that utilize suspended judgments as a dispositional option, rather than
probation, each of the conditions currently enumerated for probation
should apply equally in cases of suspended judgment. These amendments,
therefore, would enhance the options available in all Family Court fami-
ly offense cases.

 
PRIOR LEGISLATIVE HISTORY:

New Bill

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE: This act shall take effect on the
120th day after enactment.