S06214 Summary:

BILL NOS06214
 
SAME ASNo Same As
 
SPONSORMONTGOMERY
 
COSPNSR
 
MLTSPNSR
 
Amd 1039, 1053 & 1071, Fam Ct Act
 
Relates to adjournments in contemplation of dismissal and suspended judgments in child protective proceedings in the family court.
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S06214 Actions:

BILL NOS06214
 
05/23/2019REFERRED TO CHILDREN AND FAMILIES
05/29/20191ST REPORT CAL.951
05/30/20192ND REPORT CAL.
06/03/2019ADVANCED TO THIRD READING
06/05/2019PASSED SENATE
06/05/2019DELIVERED TO ASSEMBLY
06/05/2019referred to judiciary
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S06214 Committee Votes:

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S06214 Floor Votes:

There are no votes for this bill in this legislative session.
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S06214 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6214
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                      May 23, 2019
                                       ___________
 
        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 Children and Families
 
        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.
                                                                   LBD10895-01-9

        S. 6214                             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 subparagraphs (i) and (iii) of paragraph (a) of subdivision
    37  two of section one thousand seventeen, paragraphs (iii), (vi), and (vii)
    38  of subdivision (a) of section one thousand fifty-two, section one  thou-
    39  sand  fifty-five  or  section  one thousand fifty-five-b of this article
    40  shall not be made in any case adjourned under this section; nor shall an
    41  order under this section contain a  condition  requiring  the  child  or
    42  children  to  be  placed  voluntarily pursuant to sections three hundred
    43  fifty-eight and three hundred eighty-four-a of the social services  law.
    44  In  any  order  issued pursuant to this section, [such agency] the peti-
    45  tioner shall be directed to make a progress report  to  the  court,  the
    46  parties and the child's attorney on the implementation of such order, no
    47  later  than  ninety  days  after the issuance of such order[, unless the
    48  court determines that the facts and circumstances of  the  case  do  not
    49  require  such  reports to be made] and shall submit a report pursuant to
    50  section one thousand fifty-eight of this article  no  later  than  sixty
    51  days prior to the expiration of the order. The [child protective agency]
    52  petitioner  shall make further reports to the court, the parties and the
    53  child's attorney in such manner and at  such  times  as  the  court  may
    54  direct.
    55    (d)  Upon  application  of  the  respondent,  the petitioner[,] or the
    56  child's attorney or upon the court's own motion, made at any time during

        S. 6214                             3
 
     1  the duration of the order, if the child  protective  agency  has  failed
     2  substantially  to provide the respondent with adequate supervision or to
     3  observe the terms and conditions of the order, the court may direct  the
     4  child protective agency to observe such terms and conditions and provide
     5  adequate  supervision  or  may  make  any  order  authorized pursuant to
     6  section two hundred fifty-five or one thousand fifteen-a of this act.
     7    (e) [Upon application of] If, prior to the expiration of the period of
     8  an adjournment in contemplation of dismissal, a motion or order to  show
     9  cause  is  filed  by  the petitioner or the child's attorney or upon the
    10  court's own motion, made at any time during the duration of  the  order,
    11  [the]  that  alleges  a  violation  of  the  terms and conditions of the
    12  adjournment, the period of the adjournment in contemplation of dismissal
    13  is tolled as of the date of such filing until  the  entry  of  an  order
    14  disposing  of  the  motion or order to show cause.  The court may revoke
    15  the adjournment in contemplation of dismissal and restore the matter  to
    16  the  calendar  or  the court may extend the period of the adjournment in
    17  contemplation of dismissal pursuant to subdivision (b) of this  section,
    18  if  the  court  finds  after a hearing on the alleged violation that the
    19  respondent has failed substantially to observe the terms and  conditions
    20  of the order or to cooperate with the supervising child protective agen-
    21  cy.  [In  such  event]  Where  the  court has revoked the adjournment in
    22  contemplation of dismissal and restored the matter to the calendar:
    23    (i) in the case of an adjournment in contemplation of dismissal issued
    24  prior to the entry of a fact-finding order, unless the  parties  consent
    25  to  an  order  pursuant  to section one thousand fifty-one of this [act]
    26  article or unless the petition is dismissed  upon  the  consent  of  the
    27  petitioner,  the court shall thereupon proceed to a fact-finding hearing
    28  under this article no later than sixty days after [such] the application
    29  to restore the matter to the calendar  has  been  granted,  unless  such
    30  period is extended by the court for good cause shown; or
    31    (ii)  in  the  case  of  an  adjournment in contemplation of dismissal
    32  issued after the entry of a fact-finding order, the court shall thereup-
    33  on proceed to a dispositional hearing under this article no  later  than
    34  thirty  days after the application to restore the matter to the calendar
    35  has been granted, unless such period is extended by the court  for  good
    36  cause shown.
    37    (iii)  The court shall state its reasons on the record for revoking an
    38  adjournment in contemplation of dismissal and restoring  the  matter  to
    39  the calendar under this subdivision.
    40    (f) If the proceeding is not [so] restored to the calendar as a result
    41  of a finding of an alleged violation pursuant to subdivision (e) of this
    42  section  and  if  the  adjournment  in contemplation of dismissal is not
    43  extended pursuant to subdivision (b) of this section, the  petition  is,
    44  at the expiration of the adjournment in contemplation of dismissal peri-
    45  od, deemed to have been dismissed by the court in furtherance of justice
    46  [unless  an  application  is pending pursuant to subdivision (e) of this
    47  section]. If [such application is granted] the court finds  a  violation
    48  pursuant  to  subdivision (e) of this section, the petition shall not be
    49  dismissed and shall proceed in accordance with the  provisions  of  such
    50  subdivision (e).
    51    (g)  Notwithstanding  the  provisions  of this section, if a motion or
    52  order to show cause is filed alleging a violation pursuant  to  subdivi-
    53  sion  (e)  of this section and the court finds that removal of the child
    54  from the home is necessary pursuant to section one thousand twenty-seven
    55  of this article during the pendency of the violation motion or order  to
    56  show  cause,  the  court[,]  may,  at any time prior to dismissal of the

        S. 6214                             4
 
     1  petition pursuant to subdivision (f) of this  section,  issue  an  order
     2  authorized  pursuant  to section one thousand twenty-seven of this arti-
     3  cle. Nothing in this section shall preclude the child protective  agency
     4  from  taking  emergency  action pursuant to section one thousand twenty-
     5  four of this article where compelled by the terms of  that  section.  If
     6  the  violation  is found and the matter is restored to the calendar, the
     7  court may make further orders in accordance with subdivision (e) of this
     8  section.
     9    § 2. Section 1053 of the family court act, as added by chapter 962  of
    10  the  laws  of  1970  and subdivision (c) as amended by chapter 41 of the
    11  laws of 2010, is amended to read as follows:
    12    § 1053. Suspended judgment.  (a) Rules of court shall define permissi-
    13  ble terms and conditions of a suspended judgment. These terms and condi-
    14  tions shall relate to the acts or  omissions  of  the  parent  or  other
    15  person legally responsible for the care of the child.
    16    (b) The maximum duration of any term or condition of a suspended judg-
    17  ment is one year, unless the court finds at the conclusion of that peri-
    18  od,  upon a hearing, that exceptional circumstances require an extension
    19  thereof for a period of up to an additional year.  The court shall state
    20  its reasons on the record for extending a period of  suspended  judgment
    21  under  this  subdivision, including its reasons for changes in the terms
    22  and conditions, if any.
    23    (c) Except as provided for herein, in any  order  issued  pursuant  to
    24  this  section, the court may require the child protective agency to make
    25  progress reports to the court, the parties, and the child's attorney  on
    26  the  implementation  of  such  order.  Where the order of disposition is
    27  issued upon the consent of the parties and the  child's  attorney,  such
    28  agency  shall  report to the court, the parties and the child's attorney
    29  no later than ninety days after the issuance of the  order,  unless  the
    30  court  determines  that  the  facts and circumstances of the case do not
    31  require such report to be made.
    32    (d) The order of suspended judgment must set forth the duration, terms
    33  and conditions of the  suspended  judgment,  and  must  contain  a  date
    34  certain for a court review not later than thirty days prior to the expi-
    35  ration of the period of suspended judgment. The order of suspended judg-
    36  ment  also  must  state  in conspicuous print that a failure to obey the
    37  order may lead to its revocation and to the issuance of any  order  that
    38  might  have  been made at the time judgment was suspended. A copy of the
    39  order of suspended judgment must be furnished to the respondent.
    40    (e) Not later than sixty days before the expiration of the  period  of
    41  suspended  judgment,  the  petitioner  shall  file a report, pursuant to
    42  section one thousand fifty-eight of this article, with the family  court
    43  and  all  parties, including the respondent and his or her attorney, the
    44  attorney for the child and intervenors, if any, regarding  the  respond-
    45  ent's  compliance  with  the terms of the suspended judgment. The report
    46  shall be reviewed by the court on the scheduled court date.    Unless  a
    47  motion  or order to show cause has been filed prior to the expiration of
    48  the period of suspended judgment alleging  a  violation  or  seeking  an
    49  extension  of  the  period  of  the suspended judgment, the terms of the
    50  disposition of suspended judgment shall be  deemed  satisfied.  In  such
    51  event, the court's jurisdiction over the proceeding shall be terminated.
    52  However,  the  order  of fact-finding and the presumptive effect of such
    53  finding upon retention of the report of suspected abuse and  neglect  on
    54  the  state central register in accordance with paragraph (b) of subdivi-
    55  sion eight of section four hundred twenty-two of the social services law
    56  shall remain in effect unless the court grants a motion by the  respond-

        S. 6214                             5
 
     1  ent to vacate the order of fact-finding pursuant to section one thousand
     2  sixty-one of this article.
     3    §  3.  Section 1071 of the family court act, as amended by chapter 437
     4  of the laws of 2006, is amended to read as follows:
     5    § 1071. Failure to comply with terms and conditions of suspended judg-
     6  ment. If, prior to the expiration of the period of the  suspended  judg-
     7  ment,  a  motion  or  order  to  show cause is filed that alleges that a
     8  parent or other person legally responsible for a child's  care  violated
     9  the  terms  and  conditions of a suspended judgment issued under section
    10  one thousand fifty-three of this article, the period  of  the  suspended
    11  judgment  shall be tolled as of the date of such filing pending disposi-
    12  tion of the motion or order to show cause.  If a motion or order to show
    13  cause alleging a violation has been  filed  and  the  court  finds  that
    14  removal  of the child from the home pending disposition of the motion or
    15  order to show cause is necessary pursuant to section one thousand  twen-
    16  ty-seven  of this article, the court may issue an order pursuant to such
    17  section one thousand  twenty-seven.    Nothing  in  this  section  shall
    18  preclude the child protective agency from taking emergency action pursu-
    19  ant  to section one thousand twenty-four of this article where compelled
    20  by the terms of that  section.  If,  after  a  hearing  on  the  alleged
    21  violation,  the court is satisfied by competent proof that the parent or
    22  other person violated the order of suspended  judgment,  the  court  may
    23  revoke  the  suspension  of judgment and enter any order that might have
    24  been made at the time judgment was suspended or may extend the period of
    25  suspended judgment pursuant to subdivision (b) of section  one  thousand
    26  fifty-three  of  this  article.  The  court  shall state its reasons for
    27  revoking or extending a period of suspended judgment under this section.
    28    § 4. This act shall take effect on the ninetieth day  after  it  shall
    29  have become a law.
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