Allow Agencies to File Violations

This measure would fill this gap by amending section 360.2 to clarify that presentment agencies may not only verify and subscribe violation petitions but may also file them. Presentment agencies, particularly in cases of conditional discharge where probation departments do not monitor the juveniles, are often aware of violations when probation departments are not. These occur most often in cases of new juvenile delinquency adjudications or criminal convictions, clearly grounds for violations to be filed for both conditional discharge and probation dispositions. See Family Court Act §§ 353.1(5), 353.2(4). Judges have reported numerous instances in which violations have come to the attention of Family Court that have not been the subjects of violation petitions, instances in which the Family Courts thus lack authority to take needed action.

In the absence of the filing of a petition alleging a violation of probation, the powers of the Family Court are limited. In Matter of Jazmin A., 15 N.Y.3d 439 (2010), the Court of Appeals held that Family Court lacked authority to order detention of a juvenile, notwithstanding evidence presented to the court of a violation of probation, because the local department of probation had not yet filed a violation petition in accordance with section 360.2 of the Family Court Act. Two years later, in Matter of Rayshawn P., 103 A.D.3d 31 (1st Dept., 2012), the Appellate Division, First Department, answered the question explicitly left open by the Court of Appeals in Jazmin A. The Court ruled that Family Court could not rely upon its general authority under section 355.1(1)(b) of the Family Court Act to sua sponte order a motion to modify probation conditions to enhanced supervision for an additional period of time and to direct detention pending resolution of the motion. Family Court's application of section 355.1 was held to constitute an end-run around the more specific statutory requirements for violations of probation under section 360.2 et seq of the Family Court Act, including, inter alio, the Legislature's specific delegation of authority to file violation petitions to local probation departments.

With respect to dispositions of conditional discharge, section 360.2 similarly delegates to local probation departments the authority to file violation petitions. However, pursuant to section 353.1(2) of the Family Court Act, Family Court has somewhat broader authority, as Family Courts are permitted to modify or enlarge the conditions upon a substantial change of circumstances so long as the respondent juvenile is physically present, although presence is not required if the conditions are relaxed or eliminated. Nonetheless, this authority does not ensure accountability of youth for violations since, while a Family Court may calendar a petition to modify or enlarge conditions sua sponte, it is hampered in its ability to adjudicate it in the absence of either a presentment agency or probation department to present evidence to prove the violations alleged.

Clarifying that presentment agencies, as well as probation departments, may file petitions alleging violations of probation or conditional discharge will ensure that conduct by juveniles in violation of these dispositions will be able to be addressed effectively by Family Court. Without the ability to hold juveniles accountable for their conduct, the court may not fulfill its dual statutory duties to further the best interests of the juveniles while safeguarding the community.

This measure, which would have no fiscal impact upon the State, would take effect immediately, and shall apply to any adjudicated juvenile delinquent placed on probation on or after such effective date.

Legislative history

None. New proposal.