NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6837
SPONSOR: Weinstein TITLE OF BILL: 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
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.
Long-standing uncertainty regarding the consequences of adjournments in
contemplation of dismissal (ACODs) and suspended judgments in child
protective proceedings has hindered the ability of Family Courts to
utilize these important mechanisms for resolving child protective cases
without the need for resort to a more drastic alternative, such as out-
of-home foster care placement. This measure would clarify and fill gaps
in the statutory framework with respect to both of these issues.
This measure would clarify that an ACOD 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 section 1039(e) of the
Family Court Act 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 posi-
tions. 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-find-
ing 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 sections 1017(2)(a)(iii),
1052(a)(iii), 1055 or order custody to a parent or non-respondent parent
pursuant to sections 1017(2)(a)(i), 1052(a)(vi), (vii) and 1055-b. The
ACOD may not be conditioned upon the child's voluntary placement pursu-
ant to section 358-a of the Social Services Law. Except as required
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 section 633 of
the Family Court Act,* the suspended judgment provisions applicable to
permanent neglect cases, this measure would amend section 1053 of the
Family Court Act 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 section 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 addi-
tion 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 underly-
ing 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) (Unreport-
ed), the parent could apply to Family Court pursuant to section 1061 of
the Family Court Act for an order vacating the order of fact-finding and
dismissing the proceeding in accordance with subdivision (c) of section
1051 of the 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 (2nd 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 finding. (Citation omitted).
Matter of MN, 16 Misc.3d 499, 506 (Fam. Ct., Monroe Co., 2007). Signif-
icantly, it is the requirement of this procedural step, i.e., the motion
under section 1061 of the Family Court Act, 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 section 1052(a)
of the Family Court Act to clarify that a disposition of suspended judg-
ment 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 section 1027(a)(iii) of the
Family Court Act, 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 crit-
ically 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: Senate 7220-A (Sen. Avella) (committed to
Rules) Assembly 10341 (M. of A. Weinstein) (PASSED)
2011-12 Legislative History: Senate 6678 (Sen. Saland) (Rules)
2010 Legislative History: Senate 8235-A (Sen. Montgomery) (Rules) Assem-
bly 11506 (M. of A. Weinstein) (PASSED)
* See L. 2005, c. 3; L. 2006, c. 437.
