The respondent has moved to vacate this Court’s order dated February 21, 2007 which, upon his consent, extends his placement with the New York State Office of Children and Family Services (“OCFS”) as a juvenile delinquent for twelve months and directs that OCFS continue respondent’s present placement with L & W, an authorized agency within the meaning of Social Services Law §371 (10).
In support of the motion to vacate the Court’s order extending his placement with OCFS for L & W, respondent contends that: (i) the Family Court was without jurisdiction to extend placement; (ii) the proceedings were defective in that the Court did not have the authority to reconvert the proceeding from a Person in Need of Supervision (“PINS”) proceeding to a juvenile delinquency proceeding; and (iii) even assuming that the Court had jurisdiction to extend placement with OCFS that placement could not be extended beyond his 18th birthday without his consent.
By petition filed pursuant to Family Court Act §310.1 on September 14, 2004, respondent was alleged to have committed acts which, were he an adult, would constitute the crimes of Criminal Mischief in the Fourth Degree and Menacing in the Third Degree. Respondent’s initial appearance upon the juvenile delinquency petition occurred on September 27, 2004 and on that same date respondent entered an admission to the count charging him with committing an act which would constitute the crime of Criminal Mischief in the Fourth Degree. Upon respondent’s admission to that count of the petition the Court directed the Department of Probation to conduct an investigation into respondent’s circumstances and prepare a written report to the Court, and the Court “temporarily” converted the juvenile delinquency petition to a PINS petition upon the consents of the Presentment Agency and respondent. Respondent was then remanded to the custody of the New York City Administration for Children’s Services (“ACS”) as a PINS and the Commissioner of ACS was directed to arrange for a diagnostic evaluation of the respondent.
A PINS dispositional hearing pursuant to article 7 was commenced before the Court on November 5, 2004. The written report of the Department of Probation was received into evidence along with a report from L & W, the authorized agency at which respondent had been placed by ACS under the Court’s remand order. However, because the L & W caseworker directly responsible for respondent’s case was unavailable and because the diagnostic evaluation of the respondent had not been completed, the hearing was continued until December 10, 2004. When the hearing continued on December 10, 2004, the L & W caseworker appeared and the caseworker advised the Court that the agency planned to refer the respondent for appropriate services. Respondent was then released to the custody of his mother and the Department of Probation was requested to consider the service plan proposed by L & W and to update its report in light of that plan if appropriate.
The dispositional hearing continued on January 20, 2005 and the Department of Probation submitted an updated report. At that time, respondent’s mother informed the Court that respondent had disobeyed the curfew she had set for him and that he had come home at whatever time he pleased, often in the early hours of the morning after having stayed out all night. Given that respondent appeared to be beyond parental control, the Court vacated its prior order substituting a PINS petition for the juvenile delinquency petition and respondent was ordered detained by the Department of Juvenile Justice pending further proceedings upon the reinstated juvenile delinquency petition on February 7, 2005. The Family Court Mental Health Services Clinic was directed to conduct a psychological assessment of the respondent and the Department of Probation and ACS were directed to explore possible placement resources for the respondent.
At the dispositional hearing recommenced on February 7, 2005 and the reports by the Mental Health Services Clinic, ACS and the Department of Probation were introduced into evidence. Based upon all of the evidence adduced at the hearing the Court concluded that the respondent was a person in need of supervision, treatment or confinement and he was adjudicated to be a juvenile delinquent. Thereafter, upon the Court’s own motion and with the consent of the Law Guardianship, a finding that respondent is a PINS was substituted for a finding that he was a juvenile delinquent and based upon the evidence adduced at the dispositional hearing respondent was placed in the custody of the Administration for Children’s Services with a further direction that he be placed with L & W for 12 months. The order placing the respondent with ACS was based upon the Court’s determination that he required supervision and placement, that continuation of respondent in his own home would not be in his best interests, that reasonable efforts had been made to maintain respondent in the community by substituting a PINS petition for the juvenile delinquency petition and by ultimately releasing him to his parent with the intention of providing him with appropriate community based services. In addition, the Court also considered the needs and best interests of the respondent as well as the need to protect the community.
The petition seeking to extend respondent’s placement and to review the ACS/L & W permanency plan was filed on December 19, 2005 by ACS pursuant to Family Court Act §756-a. In support of the petition to extend placement, ACS alleged that respondent has made progress in the therapeutic program at L & W, that he attends school regularly and is participating in psychotherapy. While the agency’s goal was to eventually reunite respondent with his mother, the agency was unable to presently effect that goal because the mother lacked permanent housing. Thus, the agency’s immediate plan was to implement family therapy and to assist respondent’s mother in obtaining suitable permanent housing.
During the pendency of the proceedings upon the extension of placement petition the Court was advised that respondent had absconded from the L & W campus and the Court issued a warrant for him, and by order dated January 25, 2006, respondent’s placement was temporarily extended pending his appearance before the Court upon the warrant. Respondent was returned upon the warrant on January 30, 2006, the warrant was vacated and respondent’s placement was then temporarily extended until February 16, 2006 pending further proceedings upon the petition. On February 16, 2006 a caseworker from L & W advised the Court that respondent had again absconded from L & W RTC and another warrant was issued for him.
When respondent next appeared before the Court on April 12, 2006 the parties consented to the entry of an order extending placement with ACS for one year, effective February 6, 2006, based upon the record before the Court which strongly indicated that respondent required continued supervision and treatment and that a return to his parent would not be in his best interests at this time. In addition, the Court determined that the agency’s permanency plan (concurrent plans for a return to parent or a transition to independent living) for the respondent was reasonable and that the agency had exercised reasonable efforts to effectuate that plan.
On June 28, 2006 the L & W caseworker appeared before the Court to report that the respondent had again absconded from the facility and another warrant was issued for the respondent. Respondent voluntarily appeared upon the warrant on August 30, 2006, the warrant was vacated, and another judge directed that he return to placement with the agency. This Court received an updated status report from L & W on September 20, 2006 and the order of placement continued. On November 17, 2006 the agency caseworker again appeared to request a warrant for the respondent who had again absconded from the facility. The warrant was issued and respondent was not returned upon the warrant until February 8, 2007. At that time, the Court sua sponte vacated its February 2, 2005 order which substituted a PINS finding for an order finding respondent to be a juvenile delinquent, and he was remanded to Elmhurst Hospital Medical Center for a psychological evaluation in accordance with Family Court Act §251, and the proceedings were continued until February 21, 2007.
On February 21, 2007, the Assistant Corporation Counsel, respondent, his mother and the Law Guardian appeared before the Court. At that time, and upon the consent of the parties, an order was entered pursuant to Family Court Act §353.3 which placed respondent in the custody of the Office of Children and Family Services for twelve months as a juvenile delinquent, with the specific directive that he be placed at L & W by OCFS. As part of the placement order, the Court directed that respondent cooperate with any drug treatment program offered by L & W and that OCFS and L & W provide respondent with all necessary medical care, as required by statute.
Thereafter, respondent filed this motion for an order vacating the February 8, 2007 order substituting a juvenile delinquency finding for a PINS finding and the subsequent order placing respondent with OCFS for L & W.
Respondent’s argument that the Court lacked the authority to enter the February 8, 2007 order which resubstituted a juvenile delinquency finding for a PINS finding is without merit.
Article 3 of the Family Court Act clearly authorized the entry of the order in question as well as the subsequent placement of respondent with OCFS for L & W.
The Court’s authority to enter the various orders under review in this case is derived from two complimentary sections of article 3 of the statute. The PINS substitution section of the juvenile delinquency statute, Family Court Act §311.4, reads as follows:
1. At any time in the proceedings the court, upon motion of a respondent or on its own motion, may, with the consent of the presentment agency and with the consent of the respondent, substitute a petition alleging that the respondent is in need of supervision for a petition alleging that the respondent is a juvenile delinquent.
2. At the conclusion of the dispositional hearing the court, upon motion of the respondent or its own motion, may in its discretion and with the consent of the respondent, substitute a finding that the respondent is a person in need of supervision for a finding that the respondent is a juvenile delinquent.
Family Court Act §311.4 (1) authorizes the court to substitute a petition alleging that the respondent is a person in need of supervision for a petition alleging that he or she is a juvenile delinquent. Such a substitution may be made at any stage of a juvenile delinquency petition upon the consent of both the Presentment Agency and the respondent. The substitution of a PINS petition for a juvenile delinquency petition allows the respondent to obtain “certain advantages, including the preclusion of placement in a secure facility and the absence of a finding that a crime was committed”. Family Court Act §311.4 (2), on the other hand, authorizes the court to substitute a finding that a respondent is a person in need of supervision for a finding that he or she is a juvenile delinquent. “A court that is considering the dispositional component of a juvenile delinquency proceeding has the discretion in an appropriate case to substitute a PINS finding for the finding of juvenile delinquency”.
While the procedures applicable to the Court’s substitution authority under Family Court Act §311.4 are somewhat dissimilar, whether the Court substitutes a PINS petition or a PINS finding, the underlying intent is to relieve the juvenile of being stigmatized as a juvenile delinquent and to allow the Court to address the child’s needs under the civil provisions of article 7 rather than in the context of a quasi-criminal juvenile delinquency proceeding.
Family Court Act §355.1 is a codification of the court’s inherent authority to modify or vacate its prior orders in a juvenile delinquency proceeding, and the statute reflects the court’s continuing jurisdiction and interest in a juvenile delinquency proceeding”. Accordingly, pursuant to the statute, upon a motion by or on behalf of a respondent, or upon the court’s own motion, a new fact-finding or dispositional hearing may be granted, and any prior order may be stayed, modified, terminated or vacated upon a showing of a substantial change of circumstances.
Because the needs and circumstances of a particular juvenile delinquent may be unique, there is no statutory definition of what constitutes a “substantial change of circumstances” for purposes of Family Court Act §355.1. While every asserted change of circumstances will not be substantial, a review of the cases reflects that this is a fact-specific determination which must be made by the Court.
Family Court Act §355.1 codifies the Family Court’s inherent authority to modify or vacate a prior order entered in the course of a proceeding and nothing in the statute precludes the Court from exercising that authority on more than one occasion in the course of a juvenile delinquency proceeding. Similarly, while Family Court Act §311.4 (2) authorizes the Family Court to substitute a PINS petition for a juvenile delinquency proceeding “at any time in the proceedings” and Family Court Act §311.4 (2) authorizes the Court to substitute a PINS finding for a juvenile delinquency finding “at the conclusion of the dispositional hearing”, nothing in that section purports to preclude multiple substitutions of petitions or findings in the course of a single proceeding where subsequent developments make clear that the prior substitution was an improvident exercise of judicial discretion. “Statutes are to be construed according to the ordinary meaning of their words and where a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded”. Here, the statutory provisions in question provide clearly defined authority and specific procedures governing the exercise of that authority. Nothing in the language of Family Court Act §311.4 or §355.1 indicates any Legislative intention to prohibit multiple substitutions of petitions or findings or multiple applications for relief under Family Court Act §355.1.5
The reading of these statutory provisions urged by the Law Guardian, unsupported as it is by the plain language of these sections of the statute, would amount to an impermissible judicial rewriting of the statute to obtain a desired result.
While the case relied upon by the Law Guardian, Matter of Tiahek Q., appears to prohibit a resubstitution of a juvenile delinquency finding for a PINS finding, such a construction of the statute might very well discourage Family Court Judges from exercising their discretion to substitute a PINS finding for a juvenile delinquency finding, since were such a limitation to be read into the statute, the Court would thereafter be unable to take further action under article 3 to safeguard the safety and well-being of a child or to protect the community, once the initial substitution is made. There is simply no indication that the Legislature intended to limit the Court’s authority in such a manner.
The Court has also considered whether the resubstitution of a juvenile delinquency finding would violate the prohibition against double jeopardy as noted in the Practice Commentaries. While the prohibition against double jeopardy applies to juvenile delinquency proceedings, the resubstitution of a juvenile delinquency finding does not constitute a second prosecution for the same crimes because the initial order substituting a PINS finding is not an acquittal, final order or a judgment upon conviction, and because a substitution under Family Court Act §311.4 (2) cannot occur unless the Court first adjudicates the child to be a juvenile delinquent pursuant to Family Court Act §352.1. Thus, an order which resubstitutes the juvenile delinquency finding merely restores respondent’s status as an adjudicated juvenile delinquent, which was the position he occupied immediately prior to the Court’s initial order of substitution.
On a more practical level, a construction of the statute in the manner suggested by the Law Guardian could possibly preclude the Court from entering any orders which might provide continuing services to the respondent who reached age 18 during the pendency of the motion.
Respondent has indicated his unwillingness to continue in the custody of the Office of Children and Family Services as an adjudicated juvenile delinquent. Since respondent was not placed in a restrictive setting after a finding that he committed a designated felony act and he has reached the age of 18,7 Family Court Act §355.3 (6) prohibits any extension of his placement as a juvenile delinquent absent his consent.8
Here, the reports filed with the Court on February 21, 2007 indicate that respondent is not yet prepared for a release to the community and that he would benefit from the continued services which would be provided by an extension of placement.
While Elmhurst Hospital reported that respondent does not presently suffer from any cognitive deficits or diagnosed mental illness, the February 16, 2007 report by L & W states that the respondent, who was initially admitted to that agency’s PINS facility on September 28, 2004 and transferred to the agency’s juvenile delinquent facility on September 22, 2006, “is not cooperating with services that have been recommended by the treatment team which could enhance his positive adjustment and progress in the RTC program.” Additionally, the agency reported that respondent’s mother had still not located suitable permanent housing and that she has a substance abuse problem. Moreover, the agency reports that since respondent was placed in the juvenile delinquent facility “he has not made any improvements instead he has increased his use of Marijuana/Alcohol and AWOLing. In the past five months, Gerry’s maladaptive behavior has worsen[ed] as evidenced by his [adult] criminal arrest, truancy at school, frequent AWOL and his continued involvement with alcohol and drugs.” Subsequent to the incident where respondent was intoxicated and fell off of an overpass sustaining a broken vertebra in his neck, he was returned to L & W and was released three times a week to attend occupational and physical therapy and that when he returned to the agency he frequently returned in an intoxicated state. Thus, the professional staff at L & W recommended that respondent be placed in a more structured alcohol and substance abuse treatment program, based upon his recent failure to comply with an out-patient treatment program to which he was referred to by the agency.
Finally, in contrast to the report by Elmhurst Hospital, the September 13, 2006 report of the psychiatric evaluation of the respondent conducted by Dr. Edward Halperin, a Board Certified Adolescent Psychiatrist, states that respondent suffers from “Oppositional Defiant Disorder and Personality Disorder, NOS with explosive features”, and the psychiatrist recommended that respondent be placed in alcohol and substance abuse treatment and that he continue in placement in “a strict controlling atmosphere.”
Given that respondent’s consent was a prerequisite to the order extending his placement as a juvenile delinquent and that consent may not be compelled, the Court must conclude that respondent, who is now 18 years old, may revoke that consent, whether or not that is objectively in his best interests. Thus, respondent’s present refusal to continue in placement with OCFS constitutes a substantial change of circumstances warranting judicial action pursuant to Family Court Act §355.1.9 Because respondent is clearly in need of continued supervision and treatment and he is manifestly incapable of caring for himself at the present time, and given his expressed willingness to continue his placement at L & W as a person in need of supervision in the custody of ACS,10 the Court will exercise its discretion and vacate the February 21, 2007 order extending respondent’s placement with OCFS for L & W, and the Court will substitute a finding that respondent is a person in need of supervision for a finding of juvenile delinquency pursuant to Family Court Act §311.4 (2). Upon that substitution of the PINS finding for the juvenile delinquency finding, the Court enters an order pursuant to Family Court Act §756-a placing respondent with ACS for placement with L & W (PINS facility), upon his consent, effective February 6, 2007.
The permanency findings made by the Court in its February 21, 2007 order are hereby continued and they are incorporated into the superseding order placing respondent with ACS for L & W.
Notify the Law Guardian, the Presentment Agency, the Office of Children and Family Services, the Administration for Children’s Services and the Department of Probation.
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