Clarifies when the family court may order an ACOD either before entry of a fact-finding order or entry of a final disposition

This measure, which is promoted in response to longstanding uncertainty regarding the consequences of adjournments in contemplation of dismissal ("ACODs") and suspended judgments in child protective proceedings, would clarify that Family Court may order an ACOD either before entry of a fact-finding order or entry of a final disposition upon motion of any party or the child's attorney or upon the court's own motion. The measure would maintain current law permitting an ACOD to be ordered upon consent of the parties and child's attorney prior to entry of a fact-finding order. Preserving a 1990 amendment to Family Court Act §1039(e) (see Matter of Marie B., 62 NY2d 352 (1984)), the measure provides that, if Family Court finds a violation of the conditions of an ACOD and restores the matter to its calendar, the parent would be entitled to a fact-finding hearing on the original child abuse or neglect petition prior to the case advancing to the dispositional stage.

Eliminating the confusing and overly limiting phrase "upon a fact-finding hearing," the measure clarifies that an ACOD may instead be ordered '[a]fter the entry of a fact-finding order but prior to the entry of a dispositional order" also upon motion by any party or the child's attorney. In such a case, the consent of the petitioner child protective agency and child's attorney would not be required but both would have a right to be heard regarding their positions. In the event the matter is restored to the Court's calendar as a result of a violation of the conditions of the ACOD, the matter would proceed to disposition no later than thirty days after the application for such restoration was made, unless the Court grants an extension upon good cause. In all cases, Family Court would have to state reasons on the record for ordering an ACOD.

This measure also clarifies that an ACOD may be extended for up to one year, either upon consent of the parties and child's attorney (if prior to factfinding) or for good cause (if after fact-finding and prior to disposition). The court would be required to state its reasons for ordering an extension. If a violation of the ACOD is alleged, the adjournment period is tolled pending determination of the alleged violation. Additionally, 60 days prior to expiration of the ACOD, the child protective agency must submit a report to Family Court, as required by Family Court Act §1058, the parties and the

child's attorney regarding compliance with the conditions. If there has been no violation of the ACOD and the ACOD has not been extended, the petition would be deemed dismissed and, in the case of a post-fact-finding ACOD, the fact-finding itself would be deemed vacated. If the court finds a violation, the Family Court may extend the ACOD, possibly with new or different conditions, or may restore the matter to the calendar for fact-finding (for pre-fact-finding ACOD's) or for disposition (for post-fact-finding ACOD's).

During the period of the ACOD, Family Court could not place the child pursuant to Family Court Act §1055, and the ACOD may not be conditioned upon the child's voluntary placement pursuant to Social Services Law §358-a. Except as necessary under sections 1024 or 1027 of the Family Court Act, the child court not be removed from home during the adjournment period. These amendments are necessary because children remanded or placed in foster care, notwithstanding the ACOD in the underlying proceeding, are not eligible for Federal foster care reimbursement under Title IV-E of the Social Security Act. It goes without saying that if a case warrants dismissal following a period of adjournment, the Court could not find that retention in the home would be contrary to the child's best interests, as is required by the New York State and Federal Adoption and Safe Families Acts for Federal foster care eligibility. See Family Court Act §1027(b); Social Services Law §358-a(3); Public Law 105-89.

As with ACODs, the dispositional alternative of suspended judgment in child protective cases has long generated confusion, because the Family Court Act is largely silent regarding procedures for its issuance, as well as its ultimate consequences. Accordingly, this measure would amend Family Court Act §1053 to require that the order suspending judgment contain the duration, terms and conditions of the order.(1) The order also would require a warning in conspicuous print that failure to comply may lead to its revocation and to issuance of any other order of disposition that might have been made under Family Court Act §1052 at the time the judgment was suspended. A copy of the order must be furnished to the respondent.

This measure would add clarity regarding procedures applicable when a parent has successfully complied with the conditions of an order suspending judgment. Such an order must include a date for Court review of the parent's compliance no later than 30 days prior to expiration of the suspended judgment period. In addition to existing requirements for progress reports 90 days after issuance of the order and as ordered by the Court, the measure would require a report no later than 60 days prior to the suspended judgment's expiration in accordance with section 1058 of the Family Court Act. Consistent with the Appellate Division's observation in Matter of Baby Girl W. 245 AD2d 830 (3rd Dept., 1997), this measure provides that, at the end of a successful period of a suspended judgment, the underlying order of fact-finding would not automatically be vacated; nor would the report on the Statewide Central Register of Child Abuse and Maltreatment

automatically be sealed or expunged. Rather, as in Matter of Makynli N., 17 Misc.3d 1127(A), (Fam. Ct., Monroe Co., 2007) (Unreported), the parent could apply to Family Court, pursuant to Family Court Act §1061(c), for an order vacating the order of fact-finding and dismissing the proceeding in accordance with Family Court Act §1051(c) on the ground that Court aid is no longer required and that the dismissal would be in the children's best interests. Such a dismissal would then provide the parent with grounds to seek administrative relief in terms of sealing or expungement of the State Central Register report. As the Makynli N. Court noted in its earlier opinion in the case:

[A] suspended judgment neither condones Respondent's neglectful action, nor does it necessarily eradicate the finding. [Citation omitted].

Matter of MN, 16 Misc.3d 499,506 (Fam. Ct., Monroe Co., 2007). Significantly, it is the requirement of this procedural step, i.e., the motion under Family Court Act §1061, that distinguishes the outcome of a successful suspended judgment from that of an ACOD. A suspended judgment may thus be an appropriate disposition in cases in which the Court determines that a full dismissal of the proceedings, including vacatur of the fact-finding, should not be automatic.

Concomitantly, this measure amends the procedures to be followed in the event that a parent does not comply with the conditions of a suspended judgment. While chapter 519 of the Laws of 2008 amended Family Court Act §1052(a) to clarify that a disposition of suspended judgment may not be combined with that of placement of a child, there may be cases where temporary removal of child may be necessary pending the outcome of a motion or order to show cause alleging a violation of a suspended judgment. Thus, just as Family Court may remove a child from home if necessary for the child's protection pending disposition of a child protective proceeding, pursuant to Family Court Act §1027(a)(iii), so, too, this measure would permit the convening of a hearing and, if needed, the temporary removal of child from his or her home pending resolution of a violation proceeding.

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.

2010 LEGISLATIVE HISTORY:

None. New proposal.

Footnote

(1) These amendments are similar to those made by the Legislature in 2005 and 2006, clarifying suspended judgment provisions of law applicable to permanent neglect cases. See L 2005, c. 3; L. 2006, c. 437