Relates to adjournments in contemplation of dismissal and suspended judgments in child protective proceedings in the family court

This measure would clarify that an adjournment in contemplation may be ordered either before entry of a fact-finding order or before entry of a final disposition. It 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) that followed from the Court of Appeals decision in Matter of Marie B., 62 N.Y.2d 352 (1984), if Family Court finds a violation of the conditions of the adjournment 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," this measure makes clear 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, 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 Family Court calendar as a result of a violation of the conditions of the adjournment, the matter would proceed to disposition no later than thirty days after the application to restore the matter to the calendar, unless an extension for "good cause" is granted by the court. In all cases, Family Court must 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 fact-finding) or for good cause upon the respondent's consent (if after fact-finding and prior to disposition). If a violation of the conditions of the ACOD is alleged, the adjournment period is tolled pending a determination regarding the alleged violation. Additionally, sixty days prior to expiration of the ACOD, the child protective agency must report to the Family Court, parties and child's attorney regarding compliance with the conditions. If there has been no violation of the adjournment and it 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, it 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 ACODs) or for disposition (for post-fact-finding ACODs).

During the period of an ACOD, Family Court would not be authorized to place the child pursuant to Family Court Act §§ 1017(2)(a)(iii), 1052(a)(iii) and 1055 or order custody to a parent or non-respondent parent pursuant to Family Court Act § 1017(2)(a)(i), 1052(a)(vi), (vii) and 1055-b. 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 could not be removed from home during the adjournment period. These amendments are necessary in light of the fact that children remanded or placed in foster care, notwithstanding the ACOD of 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 the case warrants dismissal following a period of adjournment, the court would not be able to find that retention in the home would be contrary to the child's best interests, as is required by the 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.

Like the provisions regarding 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. Similar to statutory amendments made in 2005 and 2006 to Family Court Act § 633,* the suspended judgment provisions applicable to permanent neglect cases, this measure would amend Family Court Act § 1053 to require that the order suspending judgment contain the duration, terms and conditions of the order. 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 a suspended judgment. The order suspending judgment must include a date for a review by the court and parties of the parent's compliance no later than 30 days prior to the expiration of the suspended judgment period. In addition to the 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.

Consistent with the Appellate Division's observation in Matter of Baby Girl W., 245 A.D.2d 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 for an order vacating the order of fact-finding and dismissing the proceeding in accordance with subdivision (c) of section 1051 of the Family Court Act on the ground that the court's aid is no longer required and that the dismissal would be in the children's best interests. See also Matter of Crystal S., 74 A.D.3d 823 (2'd Dept., 2010); Matter of Araynah B., 34 Misc.3d 566 (Fam. Ct., Kings Co., 2011). 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 Monroe County Family Court noted in its earlier opinion in the case,

(A) suspended judgment neither condones Respondent's neglectful action, nor does it necessarily eradicate the fmding. (Citation omitted).

Matter of MN 16 Misc.3d 499, 506 (Fain. 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 the 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 a temporary removal of a 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, temporary removal of child from his or her home pending the resolution of a violation proceeding.

This measure provides needed clarity to both the provisions regarding ACODs and the disposition of suspended judgment, thus enhancing the usefulness of these options for the resolution of child abuse and neglect proceedings in Family Court. Both of these options are critically important to promote and preserve the well-being of children and their families by providing opportunities for families to access services in order to repair the problems that precipitated court action without the disruption and, all too often, the trauma of out-of-home placement.

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

2016 LEGISLATIVE HISTORY :

OCA 2016-94 Senate 7220 (Sen. Avella) (1" Report Cal. 617)

2011-12 LEGISLATIVE HISTORY :

Senate 6678 (Sen. Saland) (Rules) Assembly 7639 (M. of A. Weinstein) (Passed)

2010 LEGISLATIVE HISTORY :

Senate 8235-A (Sen. Montgomery) (Rules) Assembly 11506 (M. of A. Weinstein) (PASSED)

* See L. 2005, c. 3; L. 2006, c. 437.