Actions in contemplation of dismissal in juvenile delinquency and persons in need of supervision cases

Significant gaps exist in the procedural framework governing juvenile delinquency (JD) and persons in need of supervision (PINS) cases, each in the area of violations of court orders. Further, a procedural gap is evident in the PINS statutory framework, as has repeatedly been identified by appellate courts. This measure would eliminate these gaps by clarifying applicable procedures in cases of alleged violations of adjournments in contemplation of dismissal (ACD's), orders of probation, orders of placement and orders of conditional discharge in JD proceedings and with respect to allocutions for admissions and violations of suspended judgments and orders of probation in PINS cases.

First, Article 3 of the Family Court Act is silent as to procedures to be followed and the threshold showing required to establish a violation of the conditions of an ACD sufficient to restore a case to the calendar. It likewise is silent regarding whether an ACD violation should trigger either a fact-finding or dispositional hearing. Subdivision one of section 315.3 simply provides that "(u)pon ex parte motion by the presentment agency, or upon the court's own motion, made at the time the order is issued or at any time during its duration, the (family) court may restore the matter to the calendar."

In Matter of Edwin L., 88 N.Y.2d 593 (1996), the Court of Appeals declined to incorporate a specific hearing requirement for violations of conditions in cases adjourned in contemplation of dismissal into Article 3 in the absence of explicit legislation. The Court stated:

We hold that the requirements of due process are satisfied when a Family Court determines, after conducting an inquiry into the allegations of the violation petition, and providing the juvenile with an opportunity to respond to those allegations, that there is a legitimate basis for concluding that the juvenile has violated a condition of an ACD order and states the reasons, on the record, for reaching that determination.

8 N.Y.2d, at 603. Noting that the scope of the hearing will vary according to the circumstances of particular cases, the Court left determination of the degree of formality required to the discretion

of the Family Court. It did, however, assume, in the absence of statutory guidance, that a violation petition would be filed, providing notice to the juvenile of the violation, that the juvenile would be given an opportunity to respond to the petition with or without a hearing, and that hearsay evidence would be admissible to establish the allegations of the petition.

This measure codifies these elements of Matter of Edwin L. and provides needed amplification of the applicable procedures. It requires a verified petition, to be served on the respondent juvenile, for restoration to the calendar of a JD matter adjourned in contemplation of dismissal and provides the respondent with an opportunity to respond to the motion. Filling a gap in the Family Court Act, the measure authorizes Family Court to order that respondent juvenile be detained and provides for an expedited determination of the violation petition in such cases, consistent with the criteria and time frames applicable in other detention cases. Consistent with Matter of R.D., 13 Misc.3d 1224(A) (Fam. Ct., Nassau Co., 2006), the measure codifies the direction in Matter of Edwin L. that hearsay evidence should be admissible.(1) If the petition to restore the matter to the calendar is sustained, the case would be set down for a fact-finding or dispositional hearing, depending upon whether the matter had been adjourned in contemplation of dismissal before or after entry of a fact-finding order. Similar to the provision regarding probation violations (Family Court Act §§360.2(4), (5)), the measure further provides that the period of the ACD is to be tolled during pendency of the petition, and that, if the petition to restore the matter to the calendar is dismissed, the period during which the petition was pending is to be credited to the period of adjournment in contemplation of dismissal.

Second, the measure clearly specifies that hearsay may be included in violation petition allegations. Because violations often concern a juvenile's compliance or lack of compliance with orders to cooperate with particular programs, it should be possible for probation violation petitions to be based upon allegations supported by letters, reports and other documents from the programs in question. In Matter of Markim Q., 7 N.Y.3d 406 (2006), the Court of Appeals held that a facial deficiency in the petition is not jurisdictional and is thus not reviewable on appeal unless an objection is preserved, thus reversing the Appellate Division decision that found hearsay allegations to be insufficient. See Matter of Markim Q., 22 A.D.3d 498 (2d Dept., 2005).(2) The measure thus specifies that petition allegations may include hearsay, although the current requirement for evidence of proof of the petition to be relevant, material and competent would be retained.

Third, the measure effectuates the apparent legislative intention to provide identical provisions tolling orders of probation and conditional discharge while violation proceedings are pending. While

sections 360.2 and 360.3 articulate a procedure governing violations of both probation and conditional discharge, references to conditional discharge appear inadvertently to have been omitted from two subdivisions of those sections. In Matter of Donald MM, 231 A.D.2d 810 (3rd Dept., 1996), lye. app. denied, 89 N.Y.2d 804 (1996), the Appellate Division, Third Department, read into section 360.2(4) of the Family Court Act a requirement that the period of a conditional discharge be tolled during pendency of a violation petition, as in probation violation cases. The Court held that omission of the requirement was unintentional, as "it is apparent from a reading of all provisions of this statute that the Legislature did not intend for probationary periods and conditional discharges to be treated differently." This measure incorporates this tolling requirement into section 360.2(4) of the Family Court Act. Using the same rationale, it remedies a similar gap in subdivision five of the same section, which requires credit for the period of pendency of a violation petition to be given in cases in which the violation has not been sustained.

Fourth, the measure remedies an anomaly in the JD placement statute. While placement with the State Office of Children and Family Services is tolled when a child is absent without leave and a warrant is outstanding (Exec. Law §510-b (7)), no comparable provision exists with respect to a placement of a child with a county Department of Social Services. Placements with DSS are often for the very same facilities as those with NYS OCFS - residential treatment facilities operated by authorized agencies under contract. Disparate treatment of placed delinquent youth should not arise out of the happenstance of whom the agency contracts with for payment of the child's placement. This measure, therefore, would incorporate Executive Law § 510-b(7) into Article 3 of the Family Court Act and would apply it both to placements with local Departments of Social Services and with the State Office of Children and Family Services.

With respect to PINS proceedings, the measure adds a new section 743 to the Family Court Act, establishing a judicial allocution procedure for accepting admissions in PINS cases analogous to the allocution required in JD cases (Family Court Act §321.3). The measure would require Family Court, before accepting an admission in a PINS case, to ascertain that the juvenile respondent committed the act or acts as to which an admission is being entered, is voluntarily waiving his or her right to a hearing and is aware of the dispositional alternatives that may be ordered as a result of the adjudication that is the likely consequence of the admission. Additionally, the measure corrects an apparently inadvertent omission of a phrase in subdivision (h) of section 735 of the Family Court Act.

The absence of an explicit allocution procedure in the PINS statute has generated extensive appellate litigation. In Matter of Tabitha L.L., 87 N.Y.2d 1009 (1996), the Court of Appeals held that it would be inappropriate to incorporate section 321.3 of the Family Court Act

into Article 7 in the absence of specific legislative authorization. It did not determine whether an allocution procedure is constitutionally required, since that issue was not preserved for appellate review. In a subsequent case, Matter of Tabitha E., 271 A.D.2d 719, 720 (3rd Dept., 2000), however, the Appellate Division, Third Department, held it to be reversible error for Family Court to accept an admission in a PINS proceeding without first advising respondent of her right to remain silent. Accord, Matter of Ashley R., 42 A.D.3d 689 (3d Dept., 2007); Matter of Marquis s., 26 A.D.3d 757 (4th Dept., 2006); Matter of Steven z., 19 AD.3d 783 (3d Dept., 2005); Matter of Matthew RR., 9 A.D.3d 514 (3d Dept., 2004); Matter of Nichole A., 300 A.D.2d 947 (3rd Dept., 2002); Matter of Jodi VV., 295 A.D.2d 659 (3rd Dept., 2002); Matter of Shaun U, 288 A.D.2d 708 (3rd Dept., 2001). We believe that considerations of due process -- equally compelling in PINS as in JD cases -- militate in favor of equivalent protections and, therefore, urges the Legislature to enact a provision for PINS cases comparable to the allocution requirement applicable to JD proceedings.

The final two amendments to the PINS statutes would delineate procedures for violations of orders of suspended judgment and violations of probation, drawing upon existing JD procedures. See Family Court Act §§360.2, 360.3. Violations of both or&rs of probation and suspended judgment would require the filing of a verified petition, a hearing at which the juvenile is represented by counsel and a determination by competent proof that the juvenile committed the violation charged without just cause. Periods of dispositions of suspended judgment and probation would be tolled during the pendency of the violation petition. The juvenile must be advised of his or her rights. See, e.g., Matter of Jessica GG., 19 A.D.3d 765 (3d Dept., 2005); Matter of Ashley A., 296 A.D.2d 627 (3rd Dept., 2002).

Upon finding a violation, the Family Court would be authorized to adjourn the matter for a new dispositional hearing in accordance with subdivision (b) or (c) of section 749 of the Family Court Act or, at minimum, provide the juvenile with an opportunity to present evidence. See Matter of Casey W, 3 AD.3d 785 (3d Dept., 2004); Matter of Josiah RR., 277 A.D.2d 654 (3rd Dept., 2000). The court would be permitted to revoke, continue or modify the order of probation or suspended judgment. If the order is revoked, the court must order a different dispositional alternative enumerated in section 754(a), to state the reasons for its determination and to make the findings required by section 754(b) of the Family Court Act. See Matter of Nathaniel JJ, 265 A.D.2d 660 (3rd Dept., 1999), after remittitur, 270 A.D.2d 783 (3rd Dept., 2000) (PINS probation violation matter remanded twice for specific findings, first with respect to the reasons for the disposition and second as to the 16-year old respondent's needs, if any, for independent living services).(3) In matters, such as Nathaniel JJ, in which the juvenile was placed pursuant to Family Court Act §756, these findings would be

mandated as well by the Federal and State Adoption and Safe Families Acts (public Law 105-89; 1.. 1999, c.7; 1.. 2000, c. 145).

This measure, which would have no fiscal impact upon the State, would take effect 90 days after becoming a law.

2012 LEGISLATIVE HISTORY: None. New proposal.

Footnotes

(1) In light of the Governor's veto of this proposal in 1999, it was revised to delete reference to a specific burden of proof.

(2) Like the Appellate Division in Matter of Markim Q., supra, the Appellate Division, Third Department, has applied strict juvenile delinquency pleading requirements for non-hearsay allegations to probation violation petitions. See Matter of Whitney Z, 12 A.D.3d 971 (3d Dept., 2004); Matter of Todd D., 288 A.D.2d 740 (3d Dept., 2001).

(3) The final appeal in Matter of Nathaniel JJ., 274 A.D.2d 611 (3rd Dept., 2000) was dismissed as moot, since the appellant had been released from placement.