Expand Family Court Notice Rights

When the Legislature enacted chapter 3 of the Laws of 2005 - landmark child welfare permanency legislation - it deferred consideration of a significant constellation of issues relating to permanency planning and permanency hearings regarding juvenile delinquents and Persons in Need of Supervision (PINS). Now, over a decade later, these issues remain critically important and should be addressed comprehensively. The permanency hearing provisions, including those regarding planning for return of a youth from out-of-home care, are vital to successful resol- ution of the case for that youth, his or her family and communities. Not only are they needed so that courts may fulfill their mandates under the Federal Adoption and Safe Families Act (Public Law 105-89), but the recent enactment of the Federal Preventing Sex Trafficking and Strength- ening Families Act (Public Law 113-183) has rendered the need to incor- porate these features into statutes pertaining to juvenile delinquents and PINS even more compelling. Most recently, in reauthorizing and expanding the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. § 11103), the Federal Juvenile Justice Reform Act of 2018 (H.R. 6964), which was signed into law on December 21, 2018, requires states to include prompt educational records and academic credit trans- fers as part of the planning process for release of youth from out-of- home care. As the Queens County Family Court has observed, permanency hearings in juvenile delinquency and PINS proceedings "serve the same purpose" as those in child abuse and neglect cases. See In the Matter of Mario S., 38 Misc. 3d 444 (Fain. Ct., Qns. Co., 2012). Recently enacted legislation, making identical modifications to the juvenile delinquency, PINS, child protective and permanency statutes underscores this equiv- alence. See L.2016, c. 54; L. 2015, c. 56.

For Family Court to exercise its critical monitoring functions and convene-meaningful permanency hearings in juvenile delinquency and PINS proceedings, it must have at least the same information as that required 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 represen- tation. 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 juvenile delinquents and status offenders.

Briefly, this instant measure contains the following provisions:

1. Notices to non-custodial parents: To ensure application of all possi- ble resources to the resolution of juvenile delinquency and PINS proceedings, this measure would require that non-custodial parents, if any, be given notice 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 present- ment agency (prosecution), would bear responsibility for asking the custodial parent for the necessary contact information for parents other than those already notified. In juvenile delinquency cases, the present- ment agency must send the notice, along with a copy of the petition, to the noncustodial parent or parents at least five days before the appear- ance date. In PINS cases, where there generally is no presentment agen- cy, Family Court would be charged with sending the notice. Consistent with Family Court Act §§ 34I.2(3) and 741(c), however, the absence of the parent who was sent a 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 juve- nile delinquency proceedings a child's non-custodial parent may be a critical participant in the dispositional process. Sometimes such a parent, or his or her extended family, may provide vitally-needed place- ment resources for a child, both temporarily during the pendency of the action and on a more extended basis at disposition. Participation of these family members may at least positively influence the child's behavior. However, unlike statutory provisions applicable to child protective and PINS proceedings, the Family Court Act contains no mandate that noncustodial parents be notified, let alone be engaged in resolving, their children's juvenile delinquency proceedings. This meas- ure would fill that gap.

2. Continuity of counsel: The measure assures needed continuity in representation by attorneys for juveniles in both delinquency and PINS cases. As in Family Court Act § 1016, requiring the appointment of an attorney for the child in a child protective proceeding to continue during the life of a dispositional or post-dispositional order, Family Court Act §§ 320.2(2) and 741(a) would be amended to continue the appointment of a child's attorney in juvenile delinquency and PINS proceedings for the duration 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 imme- diately. While the current practice whereby an attorney submits his or her 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.

A central precept underlying the Family Court Act is the necessity of representation of juveniles at every stage of the proceedings. This precept is "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." Fami- ly 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 juvenile delinquency 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 continuation of the appoint- ment on appeal. See Family Court Act §§ 307.4(2), 320.2(2), 320.3, 341.2(1), 728(a), 741(a), 1120(b). Less clear, however, is whether appointment of an attorney, absent an appeal, continues after the dispo- sition of a juvenile delinquency or PINS proceeding. This measure elimi- nates any ambiguity. Representation of juveniles in such cases after disposition in case conferences and subsequent reviews is critically important to ensure that effective permanency planning take s place. In the juvenile delinquency and PINS context, this representation may significantly further the goal of ensuring that services are in place to facilitate the juvenile's successful reintegration into his or her community.

3. Permanency planning: Where a dispositional order places a juvenile with a county Department of Social Services or, for juvenile delinquents outside New York City, places them with the State Office of Children and Family Services ("OCFS") for non-secure or limited secure care, the 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. These elements of a permanency order in juvenile delinquency and PINS cases are as critical as those already recognized by the Legislature in its recent enactments imple- menting the Federal law, i.e., Public Law 113-183. That is, a need to document the services necessary to assist juveniles 14 and older in making the transition from foster care to successful adulthood; a need in Alternative Planned Permanent Living Arrangement cases to specify "a significant connection to an adult willing to be a permanency resource for the child"; a need for placement agencies to document - and courts to monitor - the provision of age and developmentally appropriate services to youth using a "reasonable and prudent parent" standard; a need for youth 14 and older to be integrally involved in planning their futures and the limitation of the permanency goal of Another Planned Permanent Living Arrangement to youth 16 years of age and older. See L. 2016, c. 54; L. 2015, c. 56.

Unquestionably, these features of the permanency legislation, most specifically those addressing the needs of adolescents in out-of-home care, are just as important for adolescents involved in the juvenile delinquency and PINS caseloads of Family Courts statewide. Planning for the juveniles' release to their families must begin early and, where their families will not be a resource, the identification of suitable permanency resources is critically important. As recent reports regard- ing 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 juvenile delinquency and PINS proceedings: Any finding that reasonable efforts have been made to further the permanency goals of juvenile delinquents 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 juvenile delinquency and PINS statutes to require that agencies in which youth are placed (i) notify the school districts where those youth will be attending school upon release not less than 14 days in advance of their release, (ii) promptly transfer records to those school districts, and (iii) 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) and the Every Student Succeeds Act (Public Law 114-95), school authorities also would be required to ensure that, where appropriate, students remain in the schools they attended prior to their placement or remand into foster care. Most recently, as noted above, section 205 of the Federal Juvenile Justice Reform Act of 2018 (11R. 6964), signed into law on December 21, 2018, requires states to include in their state plans prompt educational records and academic credit transfers as part of the planning process for release of youth from out-of-home care.

It is ironic that PINS - many, if not most, of whom had 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 juvenile delinquency school and voca- tional release mandates of chapter 181 of the Laws of 2000 and to chap- ter 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 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 prompt- ly 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 juvenile delinquency 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 a consolidated extension of placement and permanency hear- ing, this release plan would be reviewed by Family Court along with its review of the permanency plan; and the Court's order would rule on 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 those most likely to have serious educational deficits and needs, these provisions would help ameliorate the serious, pervasive deficien- cies in agency referrals of youth to school and vocational programs upon release from foster care.

The importance of increasing efforts to ensure that both juvenile delin- quents and PINS stay in, re-enroll in and succeed in school cannot be overstated. High school drop-outs are 3.5 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 might 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 increase Family Court's responsi- bility to monitor and shape placements of youth in out-of-home care, including juvenile delinquents, 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 OCFS 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 facili- ties, these youth are likely, during the course of placement, to be transferred into 1V-E- eligible non-secure facilities. Convening perman- ency hearings for such youth greatly facilitates the planning process and assures compliance with the Federally-required time limits applica- ble once 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 juvenile delinquency and PINS proceedings include: a description of the visiting plan between the juvenile and his or her parent or legally-responsible adult and siblings; a service plan designed to fulfill the juvenile's permanency goal; 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 warn- ing 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)(viiXA), 1089(e).

State and Federal law and regulations clearly require that juvenile delinquency 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 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. In addition to the 2015 and 2016 enactments cited above, the 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 ofASFA are fully applicable to juvenile delinquency 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-a2.

This measure is needed to address the current conundrum faced by Family Court: the Court is charged with responsibility to conduct permanency hearings, monitor permanency planning and issue fact-specific permanency orders in juvenile delinquency and PINS proceedings, but it is not given the information or authority required to do this. 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, a juvenile's parents and other legally responsible adults and siblings 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 (Fain. Ct., Queens Co., 2008), for instance, at a combined permanency/extension of placement hearing, Fami- ly 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 moth- er'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. Conversely, Matter of Donovan Z, 6 Misc.3d 1023(A), (Fam. Ct., Monroe Co., 2005)(Unreported opinion) provides an example of a case where, at a combined permanency/extension of placement hearing, the Court could recognize that both the juvenile's and his mother's needs to facilitate his ultimate release home were being met by OCFS.

This measure would take effect 90 days after becoming law.

2017-18 LEGISLATIVE HISTORY:

Senate 5713 (Sen. Avella) (ref to Children and Families) Assembly 7556 (M. of A. Jaffee) (PASSED)

2015-16 LEGISLATIVE HISTORY:

Senate 5019 (Sen. Felder) (ref to Children and Families) Assembly 7050 (M. of A. Lupardo) (PASSED)

2013-14 LEGISLATIVE HISTORY

Senate 4083 (Sen. Felder) (ref to Children and Families) Assembly 2601 (M. of A. Paulin) (PASSED)

2012 LEGISLATIVE HISTORY

Senate 7591 (Rules) (ref to Rules) Assembly 10348 (M. of A. Paulin) (PASSED)

1 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. 2 The 2000 amendments require case-specific, rather than categorical, exclusions of juvenile delinquency and PINS proceedings from the mandate to file termination of parental rights proceedings for juveniles 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 juvenile delinquency 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.