Relates to permanency planning in juvenile delinquent and persons in need of supervision proceedings

When the Legislature enacted landmark child welfare permanency legislation in 2005 L. 2005, c. 3), it deferred consideration of many issues relating to permanency planning and permanency hearings regarding juvenile delinquents (JDs) and Persons in Need of Supervision (PINS). This measure would address those issues. In so doing, the measure incorporates essential elements of the child welfare permanency hearing article of the Family Court Act (Article 10-A) into the permanency hearing provisions of Articles 3 and 7 of the Act, providing greater specificity regarding the services that must be provided for youth and expanding the alternatives available to the Court both in dispositional and permanency hearings in JD and PINS cases. Briefly, the measure contains the following:

1. Notices to non-custodial parents: To ensure that all possible resources are engaged in the resolution of JD and PINS proceedings, the measure requires that non-custodial parents, if any, be given notices of their children's cases in Family Court to enable them to appear., This supplements the existing requirement that a summons be issued for an accused juvenile's parent or other person legally responsible. The local probation department that generally interviews parties at the outset for adjustment purposes, as well as the presentment agency, must ask the custodial parent for contact information for parents other than those already notified. In JD cases, the presentment agency must send the notice and a copy of the petition to the noncustodial parent or parents at least five days before the appearance date. In PINS cases, where there is most often no presentment agency, Family Court must send the notice.

As in child abuse, child neglect and PINS proceedings, so, too, in JD proceedings the child's non-custodial parent may be a critical participant in the dispositional process. Sometimes a non-custodial parent or his or her extended family may provide vitally-needed placement resources for a child, both temporarily during the pendency of an action and on a more extended basis at disposition. However, unlike statutory provisions applicable to child protective and PINS proceedings, the Family Court Act now contains no mandate even to notify non-custodial parents of their children's JD proceedings. This measure fills that gap.

2. Continuity of counsel: The measure provides necessary continuity in representation by attorneys for juveniles in both JD and PINS cases. It would amend Family Court Act §§ 320.2(2) and 741(a) to continue the appointment of a child's attorney in such cases for the entire period of a dispositional order, an adjournment in contemplation of dismissal and any extensions of permanency hearings, violation hearings or other post-dispositional proceedings. As in child protective cases, where the Family Court Act already provides for continuity of counsel, the

appointment would automatically continue unless Family Court relieves the attorney or grants the attorney's application to be relieved, in which case the Court must appoint another attorney immediately. While current practice whereby an attorney submits a voucher for payment at the close of a proceeding would continue, an attorney would be able, as in child protective proceedings, to submit a separate application for compensation for post-dispositional services rendered.

A central precept underlying the Family Court Act is the necessity for representation of juveniles at every stage of the proceedings. The Act recognizes that juveniles "often require the assistance of counsel to help protect their interests and to help them express their wishes to the court." Family Court Act § 241. Both the JD and PINS statutes explicitly require appointment of an attorney for the youth at the outset of proceedings, require the attorney's personal appearance at every hearing and provide for the continuation of the appointment on appeal. See Family Court Act §§ 307.4(2), 320.2(2), 320.3, 341.2(1), 728(a), 741(a), 1120(b). What is less clear, however, is whether appointment of an attorney, absent an appeal, continues after disposition of a JD or PINS proceeding. This measure settles it that it does.

3. Permanency planning: This measure requires that, where a dispositional order places a juvenile with a county department of social services, the New York City Administration for Children's Services or the New York State Office of Children and Family Services, the order must contain or have annexed the same elements as a child protective placement order. These include, inter alia, a description of the family visitation plan, the service plan if available (or if not yet available, then within 60 days of the disposition) and a directive that notice be given to the parents of any planning conferences.

Unquestionably, these features of the permanency legislation, most specifically addressing the needs of adolescents in out-of-home care, are equally essential for the adolescents who comprise the JD and PINS caseloads statewide. Planning for a juvenile's release to his or her family, the predominant permanency goal in JD and PINS cases, must begin early and, where their families will not be a resource, the identification of a suitable permanency resource is critically important.

4. Educational and vocational release planning in JD and PINS proceedings: Any finding that reasonable efforts, as required by both Federal and State law, have been made to further the permanency goals of JDs and PINS, must include advance efforts to ensure prompt enrollment in a school or vocational program upon release from out-of-home care. The measure thus amends both the JD and PINS statutes to require agencies in which youth are placed to notify the school districts in which the youth will attend school upon release not less than 14 days in advance thereof, to promptly transfer records to those school districts and to try to coordinate release dates with school terms so as to minimize disruption to the youths' educational programs. The measure further requires that local school districts enroll youth exiting placement within five business days of their release; and, consistent with the school stability provisions of the Federal Fostering Connections to Success and Adoption Improvement Act

of 2008 [Public Law 110-351], requires school authorities to ensure that, where appropriate, students remain in the schools they attended prior to their placement or remand into foster care.

It is ironic that PINS, who in many cases have been adjudicated for truancy or other school difficulties, are the only category of juveniles in Family Court who do not have specific statutory rights to school and vocational release planning. Therefore, this measure conforms the PINS statute to the JD school and vocational release mandates of chapter 181 of the Laws of 2000 and to chapter 3 of the Laws of 2005, which added identical provisions for children in foster care. The measure requires the agency with which a PINS is placed - the local Department of Social Services or an authorized child care agency operating under contract - to engage in constructive planning for the child's release, including arranging appropriate educational and/or vocational programs, and to report to Family Court and to the parties on such efforts. Where an extension of placement is not sought, the measure requires a report regarding the child's release plan 30 days prior to conclusion of the placement period. Where the agency requests an extension of placement and permanency hearing, the report must be annexed to the petition, which must be filed 60 days prior to the date on which the permanency hearing must be held.

The release plan mandated in the report must delineate the steps that the agency has taken or will be taking to ensure that the PINS will be enrolled in school promptly after release, that his or her records will promptly be transferred and that special education services, if any, will continue until such time as the new local education agency develops and implements a new Individual Education Plan, as necessary. As in JD and foster care cases, for a PINS not subject to the State compulsory education law who affirmatively elects not to continue in school, the agency must describe steps taken or planned to promptly ensure the juvenile's gainful employment or enrollment in a vocational program In an extension of placement/ permanency hearing, this release plan must be reviewed by Family Court together with its review of the permanency plan and the Court's order must include a determination of the adequacy of the release plan and specify any necessary modifications. Recognizing that, of all children in out-of-home care, PINS children are among the most likely to have serious educational deficits and needs, these provisions would help ameliorate the serious, pervasive deficiencies in agency referrals of youth to school and vocational programs upon release from foster care.

5. Placement and permanency hearing orders: Both the Federal Adoption and Safe Families Act [Public Law 105-89] and the Fostering Connections to Success and Adoption Improvement Act of 2008 [Public Law 110-351] significantly add to Family Court's responsibility to monitor and shape the placements of youth in out-of-home care. Since New York receives Federal foster care reimbursement under Title IV-E of the Social Security Act for delinquent youth when they are originally placed in or are "stepped down to" non-secure facilities housing 25 children or fewer or to foster homes, permanency hearings are as critical for such youth as for others in the foster care system. If permanency hearings are not held on a timely basis even before such youth arrive in IV-E eligible facilities, all Federal aid is sacrificed. Even more important, an opportunity to involve the youth in reentry planning with judicial oversight is lost. Thus, this

measure requires permanency hearings for juveniles placed with local Departments of Social Services, with the New York City Administration for Children's Services (including those youth in its "Close to Home" initiative) and with State Office of Children and Family Services for both limited secure and non-secure facilities.

Further, as in the child welfare permanency legislation, this measure requires that permanency hearing orders in JD and PINS proceedings include: a description of the visiting plan between juvenile and parent or legally-responsible adult; a service plan designed to fulfill the permanency goal for the juvenile;{1} a direction that the parent or other person legally responsible be notified of, and invited to be present at, any planning conferences convened by the placement agency with respect to the juvenile; and a warning that if he or she remains in placement for 15 out of 22 months, the agency may be required to file a petition to terminate parental rights. A copy of the court order and service plan must be provided to the juvenile, his or her attorney and his or her parent or other legally responsible individual. Cf., Family Court Act §§ 1089(d)(2)(vii)(A), 1089(e).

State and Federal law and regulations are unequivocal in their requirements that JD and PINS cases conform to the Federal Adoption and Safe Families Act [" ASFA," Public Law 10589]. The reauthorization of the Federal Juvenile Justice and Delinquency Prevention Act [Public Law 107-273] in 2002 made compliance with ASFA a requirement, not only for New York to receive Federal foster care assistance pursuant to Title IV-E of the Social Security Act [42 U.S.C.], but also for eligibility for Federal juvenile justice funding from the Department of Justice. The 2000 enactment of amendments to State legislation implementing the Federal ASFA underscored the Legislature's recognition that the reasonable efforts, permanency planning and permanency hearing requirements of ASFA are fully applicable to JD and PINS proceedings in Family Court and are critical aspects of the State's compliance with Federal foster care [Social Security Act, 42 U.S.C. Title IV-E] funding mandates. See L. 2000, c. 145; Senate Memorandum in Support of S 7892-a.{2} That these amendments were compelled by Federal law is evident from regulations promulgated on January 25, 2000 by the Children's Bureau of the United States Department of Health and Human Services. 45 C.F R Parts 1355-1357; 65 Fed.Reg. 4019-4093 (Jan. 25, 2000).

This measure is vital to address the current conundrum faced by the Family Court: the Court is charged with responsibility to conduct permanency hearings, monitor permanency planning and issue fact-specific permanency orders in JD and PINS proceedings, but is not given the information or authority required to discharge that responsibility. If Family Court and all parties are provided with specific service plans, if needed services are ordered, if representation by the juveniles' attorneys is continued without interruption and if the agencies' responsibilities to work with, and provide appropriate visitation to, the juveniles' parents and other legally responsible adults are clearly articulated, the likelihood of successful permanency planning is significantly increased. This would benefit not only New York State in its efforts to demonstrate compliance with ASFA, but also the juveniles, their families and the communities to which the juveniles return.

This measure would take effect 90 days after becoming a law.

2012 Legislative History:Senate 7591 (Committee on Rules) [Rules] Assembly 10348 (M. of A. Paulin, et al [Passed]

{1} If a service plan has not been prepared by the date of disposition, it must be disseminated to the Family Court, presentment agency, child's attorney and parent or person legally responsible for the child's care within 60 days of issuance of the dispositional order.

{2} The 2000 amendments require case-specific, rather than categorical, exclusions of JD and PINS proceedings from the mandate to file termination of parental rights proceedings for juveniles who have been in care for 15 of the most recent 22 months Particularized findings must be made at the earliest pre-trial detention hearings regarding whether reasonable efforts had been made to prevent detention or facilitate return home and whether detention is in the child's best interests, Significantly, the amendments clarify that permanency hearings must be held in JD proceedings within 30 days of a finding that reasonable efforts are not required or, if no such finding has been made, no later than 12 months after the child entered foster care and every 12 months thereafter. Id. McKinney's 2000 Session L. New York, c. 145