Clarifies when the family court may order an ACOD either before entry of a fact-finding order or entry of a final disposition; clarifies the procedures applicable when a parent has successfully complied with the conditions of an order suspending judgment.
STATE OF NEW YORK
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8235--A
IN SENATE
June 17, 2010
___________
Introduced by Sen. MONTGOMERY -- (at request of the Office of Court
Administration) -- read twice and ordered printed, and when printed to
be committed to the Committee on Rules -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the family court act, in relation to adjournments in
contemplation of dismissal and suspended judgments in child protective
proceedings in the family court
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 1039 of the family court act, as amended by chapter
2 707 of the laws of 1975, subdivisions (a), (b), (c), (d) and (e) as
3 amended by chapter 41 of the laws of 2010 and subdivision (f) as amended
4 by chapter 601 of the laws of 1985, is amended to read as follows:
5 § 1039. Adjournment in contemplation of dismissal. (a) (i) Prior to
6 [or upon] the entry of a fact-finding [hearing] order, the court may,
7 upon a motion by [the petitioner with the consent of the respondent and]
8 any party or the child's attorney with the consent of all parties and
9 the child's attorney, or upon its own motion with the consent of [the
10 petitioner, the respondent] all parties and the child's attorney, order
11 that the proceeding be ["]adjourned in contemplation of dismissal["].
12 [Under no circumstances shall the court order any party to consent to an
13 order under this section.]
14 (ii) After entry of a fact-finding order but prior to the entry of a
15 dispositional order, the court may, with consent of the respondent and
16 upon motion of any party or the child's attorney or upon its own motion
17 without requiring the consent of the petitioner or the child's attorney,
18 order that the proceeding be adjourned in contemplation of dismissal.
19 The petitioner, respondent and attorney for the child have a right to be
20 heard with respect to the motion.
21 (iii) The court may make [such] an order under this section only after
22 it has apprised the respondent of the provisions of this section and it
23 is satisfied that the respondent understands the effect of such
24 provisions. Under no circumstances shall the court order any party to
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD16656-05-0
S. 8235--A 2
1 consent to an order under this section. The court shall state its
2 reasons on the record for ordering an adjournment in contemplation of
3 dismissal under this section.
4 (b) An adjournment in contemplation of dismissal is an adjournment of
5 the proceeding for a period not to exceed one year with a view to ulti-
6 mate dismissal of the petition in furtherance of justice. In the case
7 of an adjournment in contemplation of dismissal after the entry of a
8 fact-finding order, such dismissal includes vacatur of the fact-finding
9 order.
10 (i) Upon the consent of the petitioner, the respondent and the child's
11 attorney, the court may issue an order extending [such] the period of an
12 adjournment in contemplation of dismissal issued pursuant to paragraph
13 (i) of subdivision (a) of this section prior to entry of a fact-finding
14 order for such time and upon such conditions as may be agreeable to the
15 parties.
16 (ii) For good cause shown and with the consent of the respondent, the
17 court may, on its own motion or on motion of any party or the attorney
18 for the child and after providing notice and an opportunity to be heard
19 to all parties and the attorney for the child, issue an order extending
20 an adjournment in contemplation of dismissal issued pursuant to para-
21 graph (ii) of subdivision (a) of this section after entry of a fact-
22 finding order for such time and upon such conditions as may be in the
23 best interests of the child or children who are the subjects of the
24 proceeding.
25 (iii) The court shall state its reasons on the record for extending an
26 adjournment in contemplation of dismissal under this subdivision,
27 including its reasons for changes in the terms and conditions, if any.
28 (c) [Such] The order [may] shall include terms and conditions [agree-
29 able to the parties and to the court, provided that such terms and
30 conditions] in furtherance of the best interests of the child or chil-
31 dren who are the subjects of the proceeding and shall include, but not
32 be limited to, a requirement that the child and the respondent be under
33 the supervision of a child protective agency during the adjournment
34 period. Except as provided in subdivision (g) of this section, an order
35 pursuant to section one thousand seventeen or section one thousand
36 fifty-five of this article shall not be made in any case adjourned under
37 this section; nor shall an order under this section contain a condition
38 requiring the child or children to be placed voluntarily pursuant to
39 sections three hundred fifty-eight and three hundred eighty-four-a of
40 the social services law. In any order issued pursuant to this section,
41 [such agency] the petitioner shall be directed to make a progress report
42 to the court, the parties and the child's attorney on the implementation
43 of such order, no later than ninety days after the issuance of such
44 order[, unless the court determines that the facts and circumstances of
45 the case do not require such reports to be made] and shall submit a
46 report pursuant to section one thousand fifty-eight of this article no
47 later than sixty days prior to the expiration of the order. The [child
48 protective agency] petitioner shall make further reports to the court,
49 the parties and the child's attorney in such manner and at such times as
50 the court may direct.
51 (d) Upon application of the respondent, the petitioner[,] or the
52 child's attorney or upon the court's own motion, made at any time during
53 the duration of the order, if the child protective agency has failed
54 substantially to provide the respondent with adequate supervision or to
55 observe the terms and conditions of the order, the court may direct the
56 child protective agency to observe such terms and conditions and provide
S. 8235--A 3
1 adequate supervision or may make any order authorized pursuant to
2 section two hundred fifty-five of this act or section one thousand
3 fifteen-a of this article.
4 (e) [Upon application of] If, prior to the expiration of the period of
5 an adjournment in contemplation of dismissal, a motion or order to show
6 cause is filed by the petitioner or the child's attorney or upon the
7 court's own motion, made at any time during the duration of the order,
8 [the] that alleges a violation of the terms and conditions of the
9 adjournment, the period of the adjournment in contemplation of dismissal
10 is tolled as of the date of such filing until the entry of an order
11 disposing of the motion or order to show cause. The court may revoke the
12 adjournment in contemplation of dismissal and restore the matter to the
13 calendar or the court may extend the period of the adjournment in
14 contemplation of dismissal pursuant to subdivision (b) of this section,
15 if the court finds after a hearing on the alleged violation that the
16 respondent has failed substantially to observe the terms and conditions
17 of the order or to cooperate with the supervising child protective agen-
18 cy. [In such event] Where the court has revoked the adjournment in
19 contemplation of dismissal and restored the matter to the calendar:
20 (i) in the case of an adjournment in contemplation of dismissal issued
21 prior to the entry of a fact-finding order, unless the parties consent
22 to an order pursuant to section one thousand fifty-one of this [act]
23 article or unless the petition is dismissed upon the consent of the
24 petitioner, the court shall thereupon proceed to a fact-finding hearing
25 under this article no later than sixty days after [such] the application
26 to restore the matter to the calendar, unless such period is extended by
27 the court for good cause shown; or
28 (ii) in the case of an adjournment in contemplation of dismissal
29 issued after the entry of a fact-finding order, the court shall thereup-
30 on proceed to a dispositional hearing under this article no later than
31 thirty days after the application to restore the matter to the calendar,
32 unless such period is extended by the court for good cause shown.
33 (iii) the court shall state its reasons on the record for revoking an
34 adjournment in contemplation of dismissal and restoring the matter to
35 the calendar under this subdivision.
36 (f) If the proceeding is not [so] restored to the calendar as a result
37 of a finding of an alleged violation pursuant to subdivision (e) of this
38 section and if the adjournment in contemplation of dismissal is not
39 extended pursuant to subdivision (b) of this section, the petition is,
40 at the expiration of the adjournment in contemplation of dismissal peri-
41 od, deemed to have been dismissed by the court in furtherance of justice
42 [unless an application is pending pursuant to subdivision (e) of this
43 section]. If [such application is granted] the court finds a violation
44 pursuant to subdivision (e) of this section, the petition shall not be
45 dismissed and shall proceed in accordance with the provisions of [such]
46 subdivision (e) of this section.
47 (g) Notwithstanding the provisions of this section, if a motion or
48 order to show cause is filed alleging a violation pursuant to subdivi-
49 sion (e) of this section and the court finds that removal of the child
50 from the home is necessary pursuant to section one thousand twenty-seven
51 of this article during the pendency of the violation motion or order to
52 show cause, the court[,] may, at any time prior to dismissal of the
53 petition pursuant to subdivision (f) of this section, issue an order
54 authorized pursuant to section one thousand twenty-seven of this arti-
55 cle. Nothing in this section shall preclude the child protective agency
56 from taking emergency action pursuant to section one thousand twenty-
S. 8235--A 4
1 four of this article where compelled by the terms of that section. If
2 the violation is found and the matter is restored to the calendar, the
3 court may make further orders in accordance with subdivision (e) of this
4 section.
5 § 2. Section 1053 of the family court act, as added by chapter 962 of
6 the laws of 1970 and subdivision (c) as amended by chapter 41 of the
7 laws of 2010, is amended to read as follows:
8 § 1053. Suspended judgment. (a) Rules of court shall define permissi-
9 ble terms and conditions of a suspended judgment. These terms and condi-
10 tions shall relate to the acts or omissions of the parent or other
11 person legally responsible for the care of the child.
12 (b) The maximum duration of any term or condition of a suspended judg-
13 ment is one year, unless the court finds at the conclusion of that peri-
14 od, upon a hearing, that exceptional circumstances require an extension
15 thereof for a period of up to an additional year. The court shall state
16 its reasons on the record for extending a period of suspended judgment
17 under this subdivision, including its reasons for changes in the terms
18 and conditions, if any.
19 (c) Except as provided for herein, in any order issued pursuant to
20 this section, the court may require the child protective agency to make
21 progress reports to the court, the parties, and the child's attorney on
22 the implementation of such order. Where the order of disposition is
23 issued upon the consent of the parties and the child's attorney, such
24 agency shall report to the court, the parties and the child's attorney
25 no later than ninety days after the issuance of the order, unless the
26 court determines that the facts and circumstances of the case do not
27 require such report to be made.
28 (d) The order of suspended judgment must set forth the duration, terms
29 and conditions of the suspended judgment, and must contain a date
30 certain for a court review not later than thirty days prior to the expi-
31 ration of the period of suspended judgment. The order of suspended judg-
32 ment also must state in conspicuous print that a failure to obey the
33 order may lead to its revocation and to the issuance of any order that
34 might have been made at the time judgment was suspended. A copy of the
35 order of suspended judgment must be furnished to the respondent.
36 (e) Not later than sixty days before the expiration of the period of
37 suspended judgment, the petitioner shall file a report, pursuant to
38 section one thousand fifty-eight of this article, with the family court
39 and all parties, including the respondent and his or her attorney, the
40 attorney for the child and intervenors, if any, regarding the respond-
41 ent's compliance with the terms of the suspended judgment. The report
42 shall be reviewed by the court on the scheduled court date. Unless a
43 motion or order to show cause has been filed prior to the expiration of
44 the period of suspended judgment alleging a violation or seeking an
45 extension of the period of the suspended judgment, the terms of the
46 disposition of suspended judgment shall be deemed satisfied. In such
47 event, the court's jurisdiction over the proceeding shall be terminated.
48 However, the order of fact-finding and the presumptive effect of such
49 finding upon retention of the report of suspected abuse and neglect on
50 the state central register in accordance with paragraph (b) of subdivi-
51 sion eight of section four hundred twenty-two of the social services law
52 shall remain in effect unless the court grants a motion by the respond-
53 ent to vacate the fact-finding pursuant to section one thousand sixty-
54 one of this article.
55 § 3. Section 1071 of the family court act, as amended by chapter 437
56 of the laws of 2006, is amended to read as follows:
S. 8235--A 5
1 § 1071. Failure to comply with terms and conditions of suspended judg-
2 ment. If, prior to the expiration of the period of the suspended judg-
3 ment, a motion or order to show cause is filed that alleges that a
4 parent or other person legally responsible for a child's care violated
5 the terms and conditions of a suspended judgment issued under section
6 one thousand fifty-three of this article, the period of the suspended
7 judgment shall be tolled as of the date of such filing pending disposi-
8 tion of the motion or order to show cause. If a motion or order to show
9 cause alleging a violation has been filed and the court finds that
10 removal of the child from the home pending disposition of the motion or
11 order to show cause is necessary pursuant to section one thousand twen-
12 ty-seven of this article, the court may issue an order pursuant to
13 section one thousand twenty-seven of this article. Nothing in this
14 section shall preclude the child protective agency from taking emergency
15 action pursuant to section one thousand twenty-four of this article
16 where compelled by the terms of that section. If, after hearing on the
17 alleged violation, the court is satisfied by competent proof that the
18 parent or other person violated the order of suspended judgment, the
19 court may revoke the suspension of judgment and enter any order that
20 might have been made at the time judgment was suspended or may extend
21 the period of suspended judgment pursuant to subdivision (b) of section
22 one thousand fifty-three of this article. The court may state its
23 reasons for revoking or extending a period of suspended judgment under
24 this section.
25 § 4. This act shall take effect on the ninetieth day after it shall
26 have become a law.
