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

If Family Court is to exercise its critical monitoring functions and convene meaningful permanency hearings in JD and PINS proceedings, it must have the benefit of at least the same information that is required to be presented in child welfare proceedings. The Court must make determinations of specificity at least comparable to those in child welfare proceedings and the parties must have the benefit of continuity of legal representation. None of the applicable Federal statutes makes any distinction between juvenile justice and child welfare proceedings for those states, including New York, that receive significant Federal foster care funding under Title IV-E of the Social Security Act for placements of JDs and status offenders.

To that end, this measure would incorporate 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. It would provide greater specificity regarding the services that must be provided for youth and would expand the alternatives available to the Court both in dispositional and permanency hearings in JD and PINS cases. Briefly, this measure contains the following provisions:

1. Notices to non-custodial parents: To ensure that all possible resources are engaged in the resolution of JD and PINS proceedings, the measure would require 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 (prosecution), would be charged with asking the custodial parent for the necessary contact information for parents other than those already notified. In JD cases, the presentment agency must send the notice, along with a copy of the petition, to the non-custodial parent or parents at least five days before the appearance date. In PINS cases, where there is most often no presentment agency, Family Court would be charged with sending the notice. Consistent with Family Court Act §§ 341.2(3) and 741(c), however, the absence of the parent who was sent the notice to appear in court would not be grounds to delay the proceedings.

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 the action and on a more extended basis at disposition. These family members may at the very least provide helpful participation that may positively influence the child's behavior. However, unlike the statutory provisions applicable to child protective and PINS proceedings, the Family Court Act contains no mandate to even notify non-custodial parents of, let alone engage them in resolving, their children's JD proceedings. This measure would fill that gap.

2. Continuity of counsel: This measure provides necessary continuity in representation by attorneys for juveniles in both JD and PINS cases. Similar to the requirement in Family Court Act § 1016 for appointment of the attorney for the child in a child protective proceeding to continue during the life of a dispositional or postdispositional order, Family Court Act §§ 320.2(2) and 741(a) would be amended to continue the appointment of the child's attorney in JD and PINS proceedings 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, the appointment would automatically continue unless Family Court relieves the attorney or grants his or her application to be relieved, in which case the Court must appoint another attorney immediately. While the current practice of the attorney submitting a voucher for payment at the close of a proceeding would continue, the attorney would be able, as in child protective proceedings, to submit a separate application for compensation for post-dispositional services rendered.

One of the central precepts underlying the Family Court Act is the necessity of representation for juveniles at every stage of the proceedings, a precept "based on a finding that counsel is often indispensable to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and proper orders of disposition." Family Court Act § 241. 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." Id. 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 the appointment of the attorney, absent an appeal, continues after the disposition of a JD or PINS proceeding. This measure eliminates that ambiguity. Representation of juveniles in such cases after disposition in case conferences and subsequent reviews is critically important to efforts to ensure that effective permanency planning takes place. In the JD and PINS context, this representation may significantly further the goal of ensuring that services are in place to facilitate a juvenile's successful reintegration into his or her community.

3. Permanency planning: Where the dispositional order places the juvenile with a county Department of Social Services or, in the case of JDs, with the State Office of Children and Family Services, the dispositional order must contain or have annexed the same elements as child protective placement orders, including 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. As in the child welfare permanency legislation, the measure would require Family Court to consider the services necessary to assist juveniles 14 and older, instead of 16 and older, to make the transition from foster care to independent living in JD and PINS cases. See Family Court Act § 1089(d)(2)(vii)(G). Further, as in the permanency statute, for those juveniles who are neither returning home nor achieving permanence through adoption, the measure would require that if the permanency planning goal is "another planned permanent living arrangement," it must include "a significant connection to an adult willing to be a permanency resource for the child." See Family Court Act § 1089(d)(2)(i)(E). Significantly, the new Federal Law, Public Law 113-183, requires placement agencies to document - and the courts to monitor - the provision of age and developmentally appropriate services to youth using a "reasonable and prudent parent" standard, requires youth 14 and older to be integrally involved in planning for their futures and precludes the permanency goal of "another planned permanent living arrangement" for any youth under the age of 16. Id. at Subtitle B, §§ 11-113.

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 of Family Courts statewide. Planning for the juveniles' release to their families, the predominant permanency goal in JD and PINS cases, must begin early and, where their families will not be a resource, identification of a suitable permanency resource is critically important. As recent reports regarding New York's placement system point out, youth exiting out-of-home care are especially vulnerable and have significant needs that must be met if they are to make a successful adjustment to the community.

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 their prompt enrollment in a school or vocational program upon release from out-of-home care. This measure thus amends both the JD and PINS statutes to require agencies in which youth are placed to notify the school districts in which those youth will be attending school upon release not less than 14 days in advance of their release, to promptly transfer records to the 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 in school within five business days of their release. Consistent with the school stability provisions of the Federal Fostering Connections to Success and Adoption Improvement Act of 2008 (Public Law 110-351), school authorities would also be required to ensure that, where appropriate, students may remain in the schools they attended prior to their placement or remand into foster care.

All of these provisions further the goals embodied in and are consistent with the Guiding Principles for Providing High-Quality Education in Juvenile Justice Secure Care Settings jointly issued by the United States Department of Education and Department of Justice in December, 2014. The cover letter, from the Attorney General and Secretary of Education that accompanied the Guiding Principles, dated December 8, 2014, stated that:

For youth who are confined in juvenile justice facilities, providing high-quality correctional education that is comparable to offerings in traditional public schools is one of the most powerful - and cost-effective levers we have to ensure that youth are successful once released and are able to avoid future contact with the justice system. High-quality correctional education, training, and treatment are essential components of meaningful rehabilitation because these equip youth with the skills needed to successfully reenter their communities and either continue their education or join the workforce.

While referring to secure settings, the document notes that "the principles and core activities should also inform the services provided to any youths so displaced, regardless of where they are located or for how long." Id. at 2. The Guidelines stress the need for timely and comprehensive reentry planning, transfers of school records to ensure expeditious reenrollment and full compliance with the Individuals with Disabilities Education Act (IDEA). See also, Letter from the Attorney General and Secretary of Education, dated December 5, 2014, regarding IDEA requirements.

It is most ironic that PINS, many if not most of whom had been adjudicated for truancy or other school difficulties, are the only category of juveniles before the 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 the Family Court and to the parties on such efforts. Where an extension of placement is not being sought, the measure requires a report regarding the child's release plan 30 days prior to conclusion of the placement period. Where the agency is requesting 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 would be enrolled in school promptly after release, that records would be promptly transferred and that special education services, if any, would 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 would be reviewed by Family Court in conjunction with its review of the permanency plan and the Court's order would include a determination of the adequacy of the release plan and would 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 to ameliorate the serious, pervasive deficiencies in agency referrals of youth to school and vocational programs upon release from foster care.*

The importance of increasing efforts to ensure that both JDs and PINS are able to stay in, re-enroll in and succeed in school cannot be overstated. High school drop-outs are 3-1/2 times as likely to be arrested as high school graduates and more than eight times more likely to be incarcerated in jails or prisons. Even a 10% increase in graduation rates has been estimated to prevent approximately 180 murders and 9,000 aggravated assaults in New York annually.**

5. Placement and permanency hearing orders: The Federal Adoption and Safe Families Act (Public Law 105-89), the Fostering Connections to Success and Adoption Improvement Act of 2008 (Public Law 110-351) and, most recently, the Preventing Sex Trafficking and Strengthening Families Act (Public law 113-183) significantly augment Family Court's responsibilities to monitor and shape the placements of youth in out-of-home care, including JDs, since the State receives Federal foster care reimbursement under Title IV-E of the Social Security Act for such youth when they are originally placed in or are "stepped down to" non-secure facilities housing 25 children or fewer or to foster homes. Thus, this measure requires permanency hearings for juveniles placed with local Departments of Social Services and with the State Office of Children and Family Services for limited secure and non-secure facilities. Although the State does not receive Federal Title IV-E foster care reimbursement for youth in limited secure facilities, these youth may well, during the course of placement, be transferred into IV-E- eligible non-secure facilities. Convening permanency hearings for such youth greatly facilitates the planning process and assures compliance with the Federally-required time-limits applicable once the youth are transferred. Such hearings are already generally the practice statewide, thus imposing no new burdens upon OCFS, but should be made uniform through a statutory requirement. See, e.g., Matter of Donovan Z., 6 Misc.3d 1023(A) (Fam. Ct., Monroe Co., 2005)(Unreported opinion).

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 the juvenile and his or her parent or legally-responsible adult; a service plan designed to fulfill the permanency goal for the juvenile,*** a direction that the parent or other person legally responsible be notified of, and be invited to be present at, any planning conferences convened by the placement agency with respect to the child; and a warning that if the juvenile 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 the juvenile's 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 105-89). 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 State 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. Enactment of amendments in 2000 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.**** That these amendments were compelled by Federal law is evident from the 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 Family Court: it is charged with the responsibility to conduct permanency hearings, monitor permanency planning and issue fact-specific permanency orders in JD and PINS proceedings, but it is not given the information or authority it requires 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 the State in its efforts to demonstrate compliance with ASFA, but also the juveniles, their families and the communities to which the juveniles return.

In Matter of Robin G., 20 Misc.3d 328 (Fam. Ct., Queens Co., 2008), for instance, at a combined permanency/extension of placement hearing, the Family Court made a finding of no reasonable efforts against OCFS since neither it, nor the authorized agency having custody of the juvenile, made reasonable efforts to facilitate the juvenile's return to her mother's home; no services or counseling were provided to the mother, who was not involved in the child's transition planning, and no plan was in place to ensure that the child's mental health needs would be met upon her release. Concomitantly, Matter of Donovan Z., 6 Misc.3d 1023(A) (Fam. Ct., Monroe Co., 2005)(Unreported opinion) provides a more positive example of a case where, at a combined permanency/extension of placement hearing, Family Court was able to ascertain that both the juvenile's and his mother's needs to facilitate his ultimate release home were being met by OCFS.

The importance of these provisions is underscored as well in the nationally recognized guidelines approved by the National Council of Juvenile and Family Court Judges.***** As one child welfare expert has written:******

If ASFA and Title IV-E are applied properly, consistently and with a view toward reunification, rehabilitation and safe permanent homes for the children involved, the results can be extraordinary. One outcome - collaboration among courts, agencies, and lawyers - can result in fewer delinquency, status offender, and dependency (child abuse and neglect) cases; more youths and families involved with one another and their communities; and fewer future adult crimes. Collaboration also is efficient under a cost-benefit analysis since it provides extra funding for juvenile justice initiatives and preventive services.

ASFA and Title IV-E can be important tools to reform the juvenile justice field. They can provide juvenile justice agencies with added means to control and oversee youths, work preventively with families at risk, and get community involvement and "buy-in."

This measure, which would have no fiscal impact on the State, would take effect 90 days after it shall have become a law.

2012 Legislative History:Senate 7591 (Rules) (ref to Rules) Assembly 10348 (M. of A. Paulin) (Passed) 2013-14 Legislative History:Senate 4083 (Sen. Felder) (ref to Children and Families) 2015-16 Legislative History:Assembly 2601 (M. of A. Paulin) (Passed) Senate 5019 (Sen. Felder) (ref to Children and Families) Assembly 7050 (M. of A. Paulin) (Passed in 2015; ordered to 3rd Rdg., Cal. 264 in 2016)

* Educational Neglect: The Delivery of Educational Services to Children in New York City's Foster Care System (Advocates for Children of New York, July, 2000); Changing the PINS System in New York: A Study of the Implications of Raising the Age Limit for Persons in Need of Supervision (PINS), p. 34 (Vera Inst., Sept., 2001); Changing the Status Quo for Status Offenders: New York State's Efforts to Support Troubled Teens (Vera Inst., Dec., 2004). **See Fight Crime, Invest in Kids, Getting Juvenile Justice Right in New York: Proven Interventions Will Cut Crime and Save Money (2007) at pages 4,6. ***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 the issuance of the dispositional order. **** The 2000 amendments require case-specifie, 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. *****Juvenile Delinquency Guidelines: Improving Court Practice in Juvenile Delinquency Cases (National Council of Juvenile and Family Court Judges, March, 2005). ******V. Hemrich, "Applying ASFA to Delinquency and Status Offender Cases," 18 ABA Child Law Practice 9:129, 134 Nov., 1999).