|751||Order dismissing petition.|
|754||Disposition on adjudication of person in need of supervision.|
|756-A||Extension of placement.|
|759||Order of protection.|
|760||Duties of counsel.|
S 751. Order dismissing petition. If the allegations of a petition under this article are not established, the court shall dismiss the petition. The court may in its discretion dismiss a petition under this article, in the interests of justice where attempts have been made to adjust the case as provided for in sections seven hundred thirty-five and seven hundred forty-two of this article and the probation service has exhausted its efforts to successfully adjust such case as a result of the petition's failure to provide reasonable assistance to the probation service. S 752. Findings. If the allegations of a petition under this article are established in accord with part three, the court shall enter an order finding that the respondent is a person in need of supervision. The order shall state the grounds for the finding and the facts upon which it is based. S 754. Disposition on adjudication of person in need of supervision. 1. Upon an adjudication of person in need of supervision, the court shall enter an order of disposition: (a) Discharging the respondent with warning; (b) Suspending judgment in accord with section seven hundred fifty-five; (c) Continuing the proceeding and placing the respondent in accord with section seven hundred fifty-six; provided, however, that the court shall not place the respondent in accord with section seven hundred fifty-six where the respondent is sixteen years of age or older, unless the court determines and states in its order that special circumstances exist to warrant such placement; or (d) Putting the respondent on probation in accord with section seven hundred fifty-seven. The court may order an eligible person to complete an education reform program in accordance with section four hundred fifty-eight-l of the social services law, as part of a disposition pursuant to paragraph (a), (b) or (d) of this subdivision. 2. (a) The order shall state the court's reasons for the particular disposition. If the court places the child in accordance with section seven hundred fifty-six of this part, the court in its order shall determine: (i) whether continuation in the child's home would be contrary to the best interest of the child and where appropriate, that reasonable efforts were made prior to the date of the dispositional hearing held pursuant to this article to prevent or eliminate the need for removal of the child from his or her home and, if the child was removed from his or her home prior to the date of such hearing, that such removal was in the child's best interest and, where appropriate, reasonable efforts were made to make it possible for the child to return safely home. If the court determines that reasonable efforts to prevent or eliminate the need for removal of the child from the home were not made but that the lack of such efforts was appropriate under the circumstances, the court order shall include such a finding; and (ii) in the case of a child who has attained the age of sixteen, the services needed, if any, to assist the child to make the transition from foster care to independent living. Nothing in this subdivision shall be construed to modify the standards for directing detention set forth in section seven hundred thirty-nine of this article. (b) For the purpose of this section, reasonable efforts to prevent or eliminate the need for removing the child from the home of the child or to make it possible for the child to return safely to the home of the child shall not be required where the court determines that: (i) the parent of such child has subjected the child to aggravated circumstances, as defined in subdivision (g) of section seven hundred twelve of this article; (ii) the parent of such child has been convicted of (A) murder in the first degree as defined in section 125.27 or murder in the second degree as defined in section 125.25 of the penal law and the victim was another child of the parent; or (B) manslaughter in the first degree as defined in section 125.20 or manslaughter in the second degree as defined in section 125.15 of the penal law and the victim was another child of the parent, provided, however, that the parent must have acted voluntarily in committing such crime; (iii) the parent of such child has been convicted of an attempt to commit any of the crimes set forth in subparagraphs (i) and (ii) of this paragraph, and the victim or intended victim was the child or another child of the parent; or has been convicted of criminal solicitation as defined in article one hundred, conspiracy as defined in article one hundred five or criminal facilitation as defined in article one hundred fifteen of the penal law for conspiring, soliciting or facilitating any of the foregoing crimes, and the victim or intended victim was the child or another child of the parent; (iv) the parent of such child has been convicted of assault in the second degree as defined in section 120.05, assault in the first degree as defined in section 120.10 or aggravated assault upon a person less than eleven years old as defined in section 120.12 of the penal law, and the commission of one of the foregoing crimes resulted in serious physical injury to the child or another child of the parent; (v) the parent of such child has been convicted in any other jurisdiction of an offense which includes all of the essential elements of any crime specified in subparagraph (ii), (iii) or (iv) of this paragraph, and the victim of such offense was the child or another child of the parent; or (vi) the parental rights of the parent to a sibling of such child have been involuntarily terminated; unless the court determines that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future. The court shall state such findings in its order. If the court determines that reasonable efforts are not required because of one of the grounds set forth above, a permanency hearing shall be held within thirty days of the finding of the court that such efforts are not required. At the permanency hearing, the court shall determine the appropriateness of the permanency plan prepared by the social services official which shall include whether and when the child: (A) will be returned to the parent; (B) should be placed for adoption with the social services official filing a petition for termination of parental rights; (C) should be referred for legal guardianship; (D) should be placed permanently with a fit and willing relative; or (E) should be placed in another planned permanent living arrangement if the social services official has documented to the court a compelling reason for determining that it would not be in the best interest of the child to return home, be referred for termination of parental rights and placed for adoption, placed with a fit and willing relative, or placed with a legal guardian. The social services official shall thereafter make reasonable efforts to place the child in a timely manner and to complete whatever steps are necessary to finalize the permanent placement of the child as set forth in the permanency plan approved by the court. If reasonable efforts are determined by the court not to be required because of one of the grounds set forth in this paragraph, the social services official may file a petition for termination of parental rights in accordance with section three hundred eighty-four-b of the social services law. (c) For the purpose of this section, in determining reasonable efforts to be made with respect to a child, and in making such reasonable efforts, the child's health and safety shall be the paramount concern. (d) For the purpose of this section, a sibling shall include a half-sibling. S 755. Suspended judgment. (a) Rules of court shall define permissible terms and conditions of a suspended judgment. The court may order as a condition of a suspended judgment restitution or services for public good pursuant to section seven hundred fifty-eight-a, and, except when the respondent has been assigned to a facility in accordance with subdivision four of section five hundred four of the executive law, in cases wherein the record indicates that the consumption of alcohol by the respondent may have been a contributing factor, the court may order attendance at and completion of an alcohol awareness program established pursuant to section 19.25 of the mental hygiene law. (b) The maximum duration of any term or condition of a suspended judgment is one year, unless the court finds at the conclusion of that period that exceptional circumstances require an additional period of one year. S 756. Placement. (a) (i) For purposes of section seven hundred fifty-four, the court may place the child in its own home or in the custody of a suitable relative or other suitable private person or a commissioner of social services, subject to the orders of the court. (ii) Where the child is placed with the commissioner of the local social services district, the court may direct the commissioner to place the child with an authorized agency or class of authorized agencies, including, if the court finds that the respondent is a sexually exploited child as defined in subdivision one of section four hundred forty-seven-a of the social services law, an available long-term safe house. Unless the dispositional order provides otherwise, the court so directing shall include one of the following alternatives to apply in the event that the commissioner is unable to so place the child: (1) the commissioner shall apply to the court for an order to stay, modify, set aside, or vacate such directive pursuant to the provisions of section seven hundred sixty-two or seven hundred sixty-three; or (2) the commissioner shall return the child to the family court for a new dispositional hearing and order. (b) Placements under this section may be for an initial period of twelve months. The court may extend a placement pursuant to section seven hundred fifty-six-a. In its discretion, the court may recommend restitution or require services for public good pursuant to section seven hundred fifty-eight-a in conjunction with an order of placement. For the purposes of calculating the initial period of placement, such placement shall be deemed to have commenced sixty days after the date the child was removed from his or her home in accordance with the provisions of this article. If the respondent has been in detention pending disposition, the initial period of placement ordered under this section shall be credited with and diminished by the amount of time spent by the respondent in detention prior to the commencement of the placement unless the court finds that all or part of such credit would not serve the best interests of the respondent. (c) A placement pursuant to this section with the commissioner of social services shall not be directed in any detention facility, but the court may direct detention pending transfer to a placement authorized and ordered under this section for no more than than fifteen days after such order of placement is made. Such direction shall be subject to extension pursuant to subdivision three of section three hundred ninety-eight of the social services law, upon written documentation to the office of children and family services that the youth is in need of specialized treatment or placement and the diligent efforts by the commissioner of social services to locate an appropriate placement. S 756-a. Extension of placement. (a) In any case in which the child has been placed pursuant to section seven hundred fifty-six, the child, the person with whom the child has been placed or the commissioner of social services may petition the court to extend such placement. Such petition shall be filed at least sixty days prior to the expiration of the period of placement, except for good cause shown, but in no event shall such petition be filed after the original expiration date. (b) The court shall conduct a permanency hearing concerning the need for continuing the placement. The child, the person with whom the child has been placed and the commissioner of social services shall be notified of such hearing and shall have the right to be heard thereat. (c) The provisions of section seven hundred forty-five shall apply at such permanency hearing. If the petition is filed within sixty days prior to the expiration of the period of placement, the court shall first determine at such permanency hearing whether good cause has been shown. If good cause is not shown, the court shall dismiss the petition. (d) At the conclusion of the permanency hearing the court may, in its discretion, order an extension of the placement for not more than one year. The court must consider and determine in its order: (i) where appropriate, that reasonable efforts were made to make it possible for the child to safely return to his or her home, or if the permanency plan for the child is adoption, guardianship or some other permanent living arrangement other than reunification with the parent or parents of the child, reasonable efforts are being made to make and finalize such alternate permanent placement including consideration of appropriate in-state and out-of-state placements; (ii) in the case of a child who has attained the age of sixteen, the services needed, if any, to assist the child to make the transition from foster care to independent living; (iii) in the case of a child placed outside New York state, whether the out-of-state placement continues to be appropriate and in the best interests of the child; and (iv) whether and when the child: (A) will be returned to the parent; (B) should be placed for adoption with the social services official filing a petition for termination of parental rights; (C) should be referred for legal guardianship; (D) should be placed permanently with a fit and willing relative; or (E) should be placed in another planned permanent living arrangement if the social services official has documented to the court a compelling reason for determining that it would not be in the best interest of the child to return home, be referred for termination of parental rights and placed for adoption, placed with a fit and willing relative, or placed with a legal guardian; and where the child will not be returned home, consideration of appropriate in-state and out-of-state placements. (d-1) At the permanency hearing, the court shall consult with the respondent in an age-appropriate manner regarding the permanency plan. (e) Pending final determination of a petition to extend such placement filed in accordance with the provisions of this section, the court may, on its own motion or at the request of the petitioner or respondent, enter one or more temporary orders extending a period of placement not to exceed thirty days upon satisfactory proof showing probable cause for continuing such placement and that each temporary order is necessary. The court may order additional temporary extensions, not to exceed a total of fifteen days, if the court is unable to conclude the hearing within the thirty day temporary extension period. In no event shall the aggregate number of days in extensions granted or ordered under this subdivision total more than forty-five days. The petition shall be dismissed if a decision is not rendered within the period of placement or any temporary extension thereof. Notwithstanding any provision of law to the contrary, the initial permanency hearing shall be held within twelve months of the date the child was placed into care pursuant to section seven hundred fifty-six of this article and no later than every twelve months thereafter. For the purposes of this section, the date the child was placed into care shall be sixty days after the child was removed from his or her home in accordance with the provisions of this section. (f) Successive extensions of placement under this section may be granted, but no placement may be made or continued beyond the child's eighteenth birthday without his or her consent and in no event past his or her twenty-first birthday. S 757. Probation. (a) Rules of court shall define permissible terms and conditions of probation. (b) The maximum period of probation shall not exceed one year. If the court finds at the conclusion of the original period that exceptional circumstances require an additional year of probation, the court may continue probation for an additional year. (c) The court may order as a condition of probation restitution or services for public good pursuant to section seven hundred fifty-eight-a. (d) In cases wherein the record indicates that the consumption of alcohol by the respondent may have been a contributing factor, the court may order as a condition of probation attendance at and completion of an alcohol awareness program established pursuant to section 19.25 of the mental hygiene law. S 758-a. Restitution. 1. In cases involving acts of infants over ten and less than sixteen years of age, the court may (a) recommend as a condition of placement, or order as a condition of probation or suspended judgment, restitution in an amount representing a fair and reasonable cost to replace the property or repair the damage caused by the infant, not, however, to exceed one thousand dollars. In the case of a placement, the court may recommend that the infant pay out of his or her own funds or earnings the amount of replacement or damage, either in a lump sum or in periodic payments in amounts set by the agency with which he is placed, and in the case of probation or suspended judgment, the court may require that the infant pay out of his or her own funds or earnings the amount of replacement or damage, either in a lump sum or in periodic payments in amounts set by the court; and/or (b) order as a condition of placement, probation, or suspended judgment, services for the public good including in the case of a crime involving willful, malicious, or unlawful damage or destruction to real or personal property maintained as a cemetery plot, grave, burial place, or other place of interment of human remains, services for the maintenance and repair thereof, taking into consideration the age and physical condition of the infant. 2. If the court recommends restitution or requires services for the public good in conjunction with an order of placement pursuant to section seven hundred fifty-six, the placement shall be made only to an authorized agency which has adopted rules and regulations for the supervision of such a program, which rules and regulations shall be subject to the approval of the state department of social services. Such rules and regulations shall include, but not be limited to provisions (i) assuring that the conditions of work, including wages, meet the standards therefor prescribed pursuant to the labor law; (ii) affording coverage to the child under the workers' compensation law as an employee of such agency, department or institution; (iii) assuring that the entity receiving such services shall not utilize the same to replace its regular employees; and (iv) providing for reports to the court not less frequently than every six months, unless the order provides otherwise. 3. If the court requires restitution or services for the public good as a condition of probation or suspended judgment, it shall provide that an agency or person supervise the restitution or services and that such agency or person report to the court not less frequently than every six months, unless the order provides otherwise. Upon the written notice sent by a school district to the court and the appropriate probation department or agency which submits probation recommendations or reports to the court, the court may provide that such school district shall supervise the performance of services for the public good. 4. The court, upon receipt of the reports provided for in subdivision two or three of this section may, on its own motion or the motion of any party or the agency, hold a hearing to determine whether the placement should be altered or modified. S 759. Order of protection. The court may make an order of protection in assistance or as a condition of any order issued under this article. The order of protection may set forth reasonable conditions of behavior to be observed for a specified time by a person who is before the court and is a parent or other person legally responsible for the child's care or the spouse of the parent or other person legally responsible for the child's care, or respondent or both. Such an order may require any such person (a) to stay away from the home, school, business or place of employment of any other party, the other spouse, the other parent or the child, and to stay away from any other specific location designated by the court; (b) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods; (c) to refrain from committing a family offense, as defined in subdivision one of section eight hundred twelve of this act, or any criminal offense against the child or against the other parent or against any person to whom custody of the child is awarded, or from harassing, intimidating or threatening such persons; (d) to permit a designated party to enter the residence during a specified period of time in order to remove personal belongings not in issue in this proceeding or in any other proceeding or action under this act or the domestic relations law; (e) to refrain from acts of commission or omission that create an unreasonable risk to the health, safety or welfare of a child; (f) to participate in family counseling or other professional counseling activities, or other services, including alternative dispute resolution services conducted by an authorized person or an authorized agency to which the youth has been referred or placed, deemed necessary for the rehabilitation of the youth, provided that such family counseling, other counseling activity or other necessary services are not contrary to such person's religious beliefs; (g) to provide, either directly or by means of medical and health insurance, for expenses incurred for medical care and treatment arising from the incident or incidents forming the basis for the issuance of the order. (h) 1. to refrain from intentionally injuring or killing, without justification, any companion animal the respondent knows to be owned, possessed, leased, kept or held by the person protected by the order or a minor child residing in such person's household. 2. "Companion animal", as used in this section, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law. (i) to observe such other conditions as are necessary to further the purposes of protection. The court may also award custody of the child, during the term of the order of protection to either parent, or to an appropriate relative within the second degree. Nothing in this section gives the court power to place or board out any child to an institution or agency. In making orders of protection, the court shall so act as to insure that in the care, protection, discipline and guardianship of the child his religious faith shall be preserved and protected. Notwithstanding the foregoing provisions, an order of protection, or temporary order of protection where applicable, may be entered against a former spouse and persons who have a child in common, regardless of whether such persons have been married or have lived together at any time, or against a member of the same family or household as defined in subdivision one of section eight hundred twelve of this act. In any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss an application for such an order, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the application or the conclusion of the action. The duration of any temporary order shall not by itself be a factor in determining the length or issuance of any final order. The protected party in whose favor the order of protection or temporary order of protection is issued may not be held to violate an order issued in his or her favor nor may such protected party be arrested for violating such order. S 760. Duties of counsel. 1. If the court has entered a dispositional order pursuant to section seven hundred fifty-four, it shall be the duty of the respondent's counsel to promptly advise such respondent and if his or her parent or other person responsible for his or her care is not the petitioner, such parent or other person responsible for his or her care, in writing of the right to appeal to the appropriate appellate division of the supreme court, the time limitations involved, the manner of instituting an appeal and obtaining a transcript of the testimony and the right to apply for leave to appeal as a poor person if he or she is unable to pay the cost of an appeal. It shall be the further duty of such counsel to explain to the respondent and if his or her parent or other person responsible for his or her care is not the petitioner, such parent or person responsible for his or her care, the procedures for instituting an appeal, the possible reasons upon which an appeal may be based and the nature and possible consequences of the appellate process. 2. It shall also be the duty of such counsel to ascertain whether the respondent wishes to appeal and, if so, to serve and file the necessary notice of appeal. 3. If the respondent has been permitted to waive the appointment of counsel pursuant to section two hundred forty-nine-a, it shall be the duty of the court to provide the notice and explanation pursuant to subdivision one and, if the respondent indicates that he or she wishes to appeal, the clerk of the court shall file and serve the notice of appeal. Top of Page
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