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A07639 Summary:

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A07639 Floor Votes:

A07639 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7639
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 11, 2011
                                       ___________
 
        Introduced  by  M. of A. WEINSTEIN -- (at request of the Office of Court
          Administration) -- read once and referred to the Committee on  Judici-
          ary
 
        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  attorney  for  the
    18  child,  order  that  the  proceeding  be  adjourned  in contemplation of

    19  dismissal. The petitioner, respondent and attorney for the child have  a
    20  right to be 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
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11106-01-1
        A. 7639                             2
 
     1  provisions.    Under no circumstances shall the court order any party to
     2  consent to an order under  this  section.  The  court  shall  state  its

     3  reasons  on  the  record for ordering an adjournment in contemplation of
     4  dismissal under this section.
     5    (b)  An adjournment in contemplation of dismissal is an adjournment of
     6  the proceeding for a period not to exceed one year with a view to  ulti-
     7  mate  dismissal  of the petition in furtherance of justice.  In the case
     8  of an adjournment in contemplation of dismissal after  the  entry  of  a
     9  fact-finding  order, such dismissal includes vacatur of the fact-finding
    10  order.
    11    (i) Upon the consent of the petitioner, the respondent and the child's
    12  attorney, the court may issue an order extending [such] the period of an
    13  adjournment in contemplation of dismissal issued pursuant  to  paragraph

    14  (i)  of  subdivision  (a)  of this section prior to the entry of a fact-
    15  finding order for such time and upon such conditions as may be agreeable
    16  to the parties.
    17    (ii) For good cause shown and with the consent of the respondent,  the
    18  court  may,  on its own motion or on motion of any party or the attorney
    19  for the child and after providing notice and an opportunity to be  heard
    20  to  all parties and the attorney for the child, issue an order extending
    21  an adjournment in contemplation of dismissal issued  pursuant  to  para-
    22  graph  (ii)  of  subdivision  (a) of this section after entry of a fact-
    23  finding order for such time and upon such conditions as may  be  in  the
    24  best  interests  of  the  child  or children who are the subjects of the

    25  proceeding.
    26    (iii) The court shall state its reasons on the record for extending an
    27  adjournment  in  contemplation  of  dismissal  under  this  subdivision,
    28  including its reasons for changes in the terms and conditions, if any.
    29    (c)  [Such] The order [may] shall include terms and conditions [agree-
    30  able to the parties and to the  court,  provided  that  such  terms  and
    31  conditions]  in  furtherance of the best interests of the child or chil-
    32  dren who are the subjects of the proceeding and shall include,  but  not
    33  be  limited to, a requirement that the child and the respondent be under
    34  the supervision of a child  protective  agency  during  the  adjournment

    35  period.  Except as provided in subdivision (g) of this section, an order
    36  pursuant  to  section  one  thousand  seventeen, or section one thousand
    37  fifty-five of this article shall not be made in any case adjourned under
    38  this section; nor shall an order under this section contain a  condition
    39  requiring  the  child  or  children to be placed voluntarily pursuant to
    40  sections three hundred fifty-eight and three  hundred  eighty-four-a  of
    41  the  social  services law. In any order issued pursuant to this section,
    42  [such agency] the petitioner shall be directed to make a progress report
    43  to the court, the parties and the child's attorney on the implementation
    44  of such order, no later than ninety days  after  the  issuance  of  such

    45  order[,  unless the court determines that the facts and circumstances of
    46  the case do not require such reports to be  made]  and  shall  submit  a
    47  report  pursuant  to section one thousand fifty-eight of this article no
    48  later than sixty days prior to the expiration of the order.  The  [child
    49  protective  agency]  petitioner shall make further reports to the court,
    50  the parties and the child's attorney in such manner and at such times as
    51  the court may direct.
    52    (d) Upon application of  the  respondent,  the  petitioner[,]  or  the
    53  child's attorney or upon the court's own motion, made at any time during
    54  the  duration  of  the  order, if the child protective agency has failed
    55  substantially to provide the respondent with adequate supervision or  to

    56  observe  the terms and conditions of the order, the court may direct the
        A. 7639                             3
 
     1  child protective agency to observe such terms and conditions and provide
     2  adequate supervision or  may  make  any  order  authorized  pursuant  to
     3  section two hundred fifty-five or one thousand fifteen-a of this act.
     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
    12  the  adjournment in contemplation of dismissal and restore the matter to
    13  the 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).
    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-
        A. 7639                             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 order of fact-finding pursuant to section one thousand
    54  sixty-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:
        A. 7639                             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 such

    13  section one thousand  twenty-seven.    Nothing  in  this  section  shall
    14  preclude the child protective agency from taking emergency action pursu-
    15  ant  to section one thousand twenty-four of this article where compelled
    16  by the terms of that  section.  If,  after  a  hearing  on  the  alleged
    17  violation,  the court is satisfied by competent proof that the parent or
    18  other person violated the order of suspended  judgment,  the  court  may
    19  revoke  the  suspension  of judgment and enter any order that might have
    20  been made at the time judgment was suspended or may extend the period of
    21  suspended judgment pursuant to subdivision (b) of section  one  thousand
    22  fifty-three  of  this  article.  The  court  shall state its reasons for

    23  revoking or extending a period of suspended judgment under this section.
    24    § 4. This act shall take effect on the ninetieth day  after  it  shall
    25  have become a law.