Relates to warrants and orders of protection in persons in need of supervision cases and family offenses committed by juveniles

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).