New York State Law

Family Court Law

Consolidated Laws of NY's FCA code

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Part 4 - Article 7 - Family Court

HEARINGS

Section Description
741Notice of rights; general provision.
741-aNotice and right to be heard.
742Diversion attempts.
744Evidence in fact-finding hearings; required quantum.
745Evidence in dispositional hearings; required quantum of proof.
746Sequence of hearings.
747Time of fact-finding hearing.
748Adjournment of fact-finding hearing.
749Adjournment after fact-finding hearing or during dispositional hearing.
750Probation reports; probation investigation and diagnostic assessment.
  S 741. Notice  of  rights;  general  provision.   (a) At the initial
  appearance of a respondent in a proceeding and at  the  commencement  of
  any  hearing under this article, the respondent and his or her parent or
  other person legally responsible for his or her care shall be advised of
  the respondent's right to remain silent and of the respondent's right to
  be represented by counsel chosen by him or her or his or her  parent  or
  other  person legally responsible for his or her care, or by an attorney
  assigned by the court under part four of article two. Provided, however,
  that in the event of the failure of the  respondent's  parent  or  other
  person  legally  responsible  for  his  or  her  care  to  appear, after
  reasonable and substantial effort has been made to notify such parent or
  responsible person of  the  commencement  of  the  proceeding  and  such
  initial  appearance,  the  court  shall  appoint  an  attorney  for  the
  respondent and shall, unless inappropriate also appoint  a  guardian  ad
  litem  for  such  respondent,  and  in  such  event,  shall  inform  the
  respondent of such rights in the  presence  of  such  attorney  and  any
  guardian ad litem.
    (b)  The  general  public  may be excluded from any hearing under this
  article and only such persons  and  the  representatives  of  authorized
  agencies admitted thereto as have a direct interest in the case.
    (c)  At  any  hearing  under  this  article,  the  court  shall not be
  prevented from proceeding by the absence of the respondent's  parent  or
  other  person  responsible  for  his  or  her  care  if  reasonable  and
  substantial effort has been made to notify such  parent  or  responsible
  person of the occurrence of the hearing and if the respondent and his or
  her  attorney  are  present. The court shall, unless inappropriate, also
  appoint a guardian ad litem who shall be present at such hearing and any
  subsequent hearing.le.

  S 741-A. Notice  and right to be heard. The foster parent caring for
  the child or any pre-adoptive parent or relative providing care for  the
  respondent  shall be provided with notice of any permanency hearing held
  pursuant to this article by the social services  official.  Such  foster
  parent, pre-adoptive parent or relative shall have the right to be heard
  at   any  such  hearing;  provided,  however,  no  such  foster  parent,
  pre-adoptive parent or relative shall be construed to be a party to  the
  hearing  solely  on  the basis of such notice and right to be heard. The
  failure of the foster parent, pre-adoptive parent,  or  relative  caring
  for  the  child  to  appear  at  a permanency hearing shall constitute a
  waiver of the right to be heard and such failure  to  appear  shall  not
  cause a delay of the permanency hearing nor shall such failure to appear
  be  a  ground  for  the  invalidation  of  any order issued by the court
  pursuant to this section.

  S 742. Diversion attempts. (a) Whenever a petition is filed pursuant
  to this article, the lead agency designated pursuant  to  section  seven
  hundred thirty-five of this article shall file a written report with the
  court  indicating  any previous actions it has taken with respect to the
  case.
    (b) At the initial appearance  of  the  respondent,  the  court  shall
  review  any  termination of diversion services pursuant to such section,
  and the  documentation  of  diligent  attempts  to  provide  appropriate
  services  and  determine  whether  such efforts or services provided are
  sufficient and may, subject to the provisions of section  seven  hundred
  forty-eight of this article, order that additional diversion attempts be
  undertaken  by the designated lead agency. The court may order the youth
  and the parent or other person legally  responsible  for  the  youth  to
  participate  in  diversion  services.  If  the  designated  lead  agency
  thereafter determines that the case has been successfully  resolved,  it
  shall so notify the court, and the court shall dismiss the petition.

  S 744. Evidence in fact-finding hearings; required quantum.  (a) Only
  evidence that is competent, material and relevant may be admitted  in  a
  fact-finding hearing.
    (b) Any determination at the conclusion of a fact-finding hearing that
  a  respondent  did  an  act  or  acts  must  be  based on proof beyond a
  reasonable doubt.  For this purpose, an uncorroborated  confession  made
  out of court by a respondent is not sufficient.

  S 745. Evidence in dispositional hearings; required quantum of proof.
  (a) Only evidence that is material and relevant may be admitted during a
  dispositional hearing.
    (b) An adjudication at the conclusion of a dispositional hearing  must
  be based on a preponderance of the evidence.
  
  S 746. Sequence  of  hearings.  Upon  completion of the fact-finding
  hearing the dispositional hearing may  commence  immediately  after  the
  required findings are made.
  
  S 747. Time  of fact-finding hearing.   A fact-finding hearing shall
  commence not more than three days after the filing of a  petition  under
  this article if the respondent is in detention.

  S 748. Adjournment of fact-finding hearing.  (a) If the respondent is
  in detention, the court may adjourn a fact-finding hearing
    (i) on its own motion or on motion of the petitioner  for  good  cause
  shown for not more than three days;
    (ii)  on  motion on behalf of the respondent or by his parent or other
  person legally responsible for his care for  good  cause  shown,  for  a
  reasonable period of time.
    (b)  Successive  motions  to  adjourn  a  fact-finding  hearing may be
  granted only under special circumstances.
    (c)   The  court  shall  state  on  the  record  the  reason  for  any
  adjournment of the fact-finding hearing.

  S 749. Adjournment after fact-finding hearing or during dispositional
  hearing. (a) (i) Upon or after a fact-finding hearing,  the  court  may,
  upon its own motion or upon a motion of a party to the proceeding, order
  that  the  proceeding  be  "adjourned in contemplation of dismissal". An
  adjournment in contemplation of  dismissal  is  an  adjournment  of  the
  proceeding,  for  a  period  not  to  exceed  six  months with a view to
  ultimate dismissal of the  petition  in  furtherance  of  justice.  Upon
  issuing such an order, upon such permissible terms and conditions as the
  rules of court shall define, the court must release the individual.
    (ii)  The court may, as a condition of an adjournment in contemplation
  of dismissal order: (A) in cases where the  record  indicates  that  the
  consumption  of alcohol may have been a contributing factor, require the
  respondent  to  attend  and  complete  an  alcohol   awareness   program
  established  pursuant to section 19.25 of the mental hygiene law; or (B)
  in cases where the record indicates that cyberbullying  or  sexting  was
  the  basis  of  the  petition, require an eligible person to complete an
  education  reform  program  in  accordance  with  section  four  hundred
  fifty-eight-l of the social services law.
    (iii)  Upon  application  of  the  petitioner, or upon the court's own
  motion, made at any time during the duration of the order, the court may
  restore the matter  to  the  calendar.  If  the  proceeding  is  not  so
  restored, the petition is at the expiration of the order, deemed to have
  been dismissed by the court in furtherance of justice.
    (b)  On  its  own  motion,  the  court  may adjourn the proceedings on
  conclusion of a fact-finding hearing or during a  dispositional  hearing
  to  enable  it  to  make  inquiry  into the surroundings, conditions and
  capacities of the respondent. An adjournment on the court's  motion  may
  not be for a period of more than ten days if the respondent is detained,
  in  which  case  not  more  than a total of two such adjournments may be
  granted in the absence of special circumstances. If  the  respondent  is
  not detained, an adjournment may be for a reasonable time, but the total
  number of adjourned days may not exceed two months.
    (c)  On  motion  on behalf of the respondent or by his parent or other
  person legally responsible for his  care,  the  court  may  adjourn  the
  proceedings  on  conclusion  of  a  fact  finding  hearing  or  during a
  dispositional hearing for a reasonable period of time.

  S 750. Probation  reports;  probation  investigation  and diagnostic
  assessment.  1. All reports or memoranda prepared  or  obtained  by  the
  probation  service shall be deemed confidential information furnished to
  the court and shall be subject to disclosure solely in  accordance  with
  this  section or as otherwise provided for by law. Except as provided in
  section seven hundred thirty-five  of  this  article,  such  reports  or
  memoranda shall not be furnished to the court prior to the completion of
  the fact-finding hearing and the making of the required findings.
    2.  After the completion of the fact-finding hearing and the making of
  the required findings  and  prior  to  the  dispositional  hearing,  the
  reports  or  memoranda prepared or obtained by the probation service and
  furnished to the  court  shall  be  made  available  by  the  court  for
  examination  and  copying by the child's counsel or by the respondent if
  he or she is not represented by counsel. All diagnostic assessments  and
  probation investigation reports shall be submitted to the court at least
  five  court days prior to the commencement of the dispositional hearing.
  In its discretion the court may except from disclosure a part  or  parts
  of  the  reports  or  memoranda  which  are  not  relevant  to  a proper
  disposition, or sources of information which have  been  obtained  on  a
  promise  of confidentiality, or any other portion thereof, disclosure of
  which would not be in the interest of justice. In all cases where a part
  or parts of the reports or memoranda are not disclosed, the court  shall
  state  for  the  record that a part or parts of the reports or memoranda
  have been excepted and the reasons for its action.  The  action  of  the
  court  excepting  information from disclosure shall be subject to review
  on any appeal  from  the  order  of  disposition.  If  such  reports  or
  memoranda  are  made  available to the respondent or his or her counsel,
  they shall also be made available to the counsel presenting the petition
  pursuant  to  section  two  hundred  fifty-four  and,  in  the   court's
  discretion, to any other attorney representing the petitioner.

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