S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6837
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 22, 2017
                                ___________
 
 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:
 
   Section 1. Section 1039 of the family court act, as amended by chapter
 707  of  the  laws  of  1975, subdivisions (a), (b), (c), (d) and (e) as
 amended by chapter 41 of the laws of 2010 and subdivision (f) as amended
 by chapter 601 of the laws of 1985, is amended to read as follows:
   § 1039. Adjournment in contemplation of dismissal.  (a) (I)  Prior  to
 [or  upon]  THE  ENTRY OF a fact-finding [hearing] ORDER, the court may,
 upon a motion by [the petitioner with the consent of the respondent and]
 ANY PARTY OR the child's attorney WITH THE CONSENT OF  ALL  PARTIES  AND
 THE  CHILD'S  ATTORNEY,  or upon its own motion with the consent of [the
 petitioner, the respondent] ALL PARTIES and the child's attorney,  order
 that  the  proceeding  be  ["]adjourned in contemplation of dismissal[".
 Under no circumstances shall the court order any party to consent to  an
 order under this section].
   (II)  AFTER  ENTRY OF A FACT-FINDING ORDER BUT PRIOR TO THE ENTRY OF A
 DISPOSITIONAL ORDER, THE COURT MAY, WITH CONSENT OF THE  RESPONDENT  AND
 UPON  MOTION OF ANY PARTY OR THE CHILD'S ATTORNEY OR UPON ITS OWN MOTION
 WITHOUT REQUIRING THE CONSENT OF THE  PETITIONER  OR  ATTORNEY  FOR  THE
 CHILD,  ORDER  THAT  THE  PROCEEDING  BE  ADJOURNED  IN CONTEMPLATION OF
 DISMISSAL. THE PETITIONER, RESPONDENT AND ATTORNEY FOR THE CHILD HAVE  A
 RIGHT TO BE HEARD WITH RESPECT TO THE MOTION.
   (III) The court may make [such] AN order UNDER THIS SECTION only after
 it  has apprised the respondent of the provisions of this section and it
 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.
              

                                                            LBD07083-01-7

 A. 6837                             2
 
 provisions.    UNDER NO CIRCUMSTANCES SHALL THE COURT ORDER ANY PARTY TO
 CONSENT TO AN ORDER UNDER  THIS  SECTION.  THE  COURT  SHALL  STATE  ITS
 REASONS  ON  THE  RECORD FOR ORDERING AN ADJOURNMENT IN CONTEMPLATION OF
 DISMISSAL UNDER THIS SECTION.
   (b)  An adjournment in contemplation of dismissal is an adjournment of
 the proceeding for a period not to exceed one year with a view to  ulti-
 mate  dismissal  of the petition in furtherance of justice.  IN THE CASE
 OF AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AFTER  THE  ENTRY  OF  A
 FACT-FINDING  ORDER, SUCH DISMISSAL INCLUDES VACATUR OF THE FACT-FINDING
 ORDER.
   (I) Upon the consent of the petitioner, the respondent and the child's
 attorney, the court may issue an order extending [such] THE period OF AN
 ADJOURNMENT IN CONTEMPLATION OF DISMISSAL ISSUED PURSUANT  TO  PARAGRAPH
 (I)  OF  SUBDIVISION  (A)  OF THIS SECTION PRIOR TO THE ENTRY OF A FACT-
 FINDING ORDER for such time and upon such conditions as may be agreeable
 to the parties.
   (II) FOR GOOD CAUSE SHOWN AND WITH THE CONSENT OF THE RESPONDENT,  THE
 COURT  MAY,  ON ITS OWN MOTION OR ON MOTION OF ANY PARTY OR THE ATTORNEY
 FOR THE CHILD AND AFTER PROVIDING NOTICE AND AN OPPORTUNITY TO BE  HEARD
 TO  ALL PARTIES AND THE ATTORNEY FOR THE CHILD, ISSUE AN ORDER EXTENDING
 AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL ISSUED  PURSUANT  TO  PARA-
 GRAPH  (II)  OF  SUBDIVISION  (A) OF THIS SECTION AFTER ENTRY OF A FACT-
 FINDING ORDER FOR SUCH TIME AND UPON SUCH CONDITIONS AS MAY  BE  IN  THE
 BEST  INTERESTS  OF  THE  CHILD  OR CHILDREN WHO ARE THE SUBJECTS OF THE
 PROCEEDING.
   (III) THE COURT SHALL STATE ITS REASONS ON THE RECORD FOR EXTENDING AN
 ADJOURNMENT  IN  CONTEMPLATION  OF  DISMISSAL  UNDER  THIS  SUBDIVISION,
 INCLUDING ITS REASONS FOR CHANGES IN THE TERMS AND CONDITIONS, IF ANY.
   (c)  [Such] THE order [may] SHALL include terms and conditions [agree-
 able to the parties and to the  court,  provided  that  such  terms  and
 conditions]  IN  FURTHERANCE OF THE BEST INTERESTS OF THE CHILD OR CHIL-
 DREN WHO ARE THE SUBJECTS OF THE PROCEEDING AND shall include,  BUT  NOT
 BE  LIMITED TO, a requirement that the child and the respondent be under
 the supervision of a child  protective  agency  during  the  adjournment
 period.  EXCEPT AS PROVIDED IN SUBDIVISION (G) OF THIS SECTION, AN ORDER
 PURSUANT  TO SUBPARAGRAPHS (I) AND (III) OF PARAGRAPH (A) OF SUBDIVISION
 TWO OF SECTION ONE THOUSAND SEVENTEEN, PARAGRAPHS (III), (VI), AND (VII)
 OF SUBDIVISION (A) OF SECTION ONE THOUSAND FIFTY-TWO, SECTION ONE  THOU-
 SAND  FIFTY-FIVE  OR  SECTION  ONE THOUSAND FIFTY-FIVE-B OF THIS ARTICLE
 SHALL NOT BE MADE IN ANY CASE ADJOURNED UNDER THIS SECTION; NOR SHALL AN
 ORDER UNDER THIS SECTION CONTAIN A  CONDITION  REQUIRING  THE  CHILD  OR
 CHILDREN  TO  BE  PLACED  VOLUNTARILY PURSUANT TO SECTIONS THREE HUNDRED
 FIFTY-EIGHT AND THREE HUNDRED EIGHTY-FOUR-A OF THE SOCIAL SERVICES  LAW.
 In  any  order  issued pursuant to this section, [such agency] THE PETI-
 TIONER shall be directed to make a progress report  to  the  court,  the
 parties and the child's attorney on the implementation of such order, no
 later  than  ninety  days  after the issuance of such order[, unless the
 court determines that the facts and circumstances of  the  case  do  not
 require  such  reports to be made] AND SHALL SUBMIT A REPORT PURSUANT TO
 SECTION ONE THOUSAND FIFTY-EIGHT OF THIS ARTICLE  NO  LATER  THAN  SIXTY
 DAYS PRIOR TO THE EXPIRATION OF THE ORDER. The [child protective agency]
 PETITIONER  shall make further reports to the court, the parties and the
 child's attorney in such manner and at  such  times  as  the  court  may
 direct.
   (d)  Upon  application  of  the  respondent,  the petitioner[,] OR the
 child's attorney or upon the court's own motion, made at any time during

 A. 6837                             3
 
 the duration of the order, if the child  protective  agency  has  failed
 substantially  to provide the respondent with adequate supervision or to
 observe the terms and conditions of the order, the court may direct  the
 child protective agency to observe such terms and conditions and provide
 adequate  supervision  or  may  make  any  order  authorized pursuant to
 section two hundred fifty-five OR ONE THOUSAND FIFTEEN-A of this act.
   (e) [Upon application of] IF, PRIOR TO THE EXPIRATION OF THE PERIOD OF
 AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL, A MOTION OR ORDER TO  SHOW
 CAUSE  IS  FILED  BY  the petitioner or the child's attorney or upon the
 court's own motion, made at any time during the duration of  the  order,
 [the]  THAT  ALLEGES  A  VIOLATION  OF  THE  TERMS AND CONDITIONS OF THE
 ADJOURNMENT, THE PERIOD OF THE ADJOURNMENT IN CONTEMPLATION OF DISMISSAL
 IS TOLLED AS OF THE DATE OF SUCH FILING UNTIL  THE  ENTRY  OF  AN  ORDER
 DISPOSING  OF  THE  MOTION OR ORDER TO SHOW CAUSE.  THE court may REVOKE
 THE ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND restore the matter  to
 the  calendar  OR  THE COURT MAY EXTEND THE PERIOD OF THE ADJOURNMENT IN
 CONTEMPLATION OF DISMISSAL PURSUANT TO SUBDIVISION (B) OF THIS  SECTION,
 if  the  court  finds  after a hearing ON THE ALLEGED VIOLATION that the
 respondent has failed substantially to observe the terms and  conditions
 of the order or to cooperate with the supervising child protective agen-
 cy.  [In  such  event]  WHERE  THE  COURT HAS REVOKED THE ADJOURNMENT IN
 CONTEMPLATION OF DISMISSAL AND RESTORED THE MATTER TO THE CALENDAR:
   (I) IN THE CASE OF AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL ISSUED
 PRIOR TO THE ENTRY OF A FACT-FINDING ORDER, unless the  parties  consent
 to  an  order  pursuant  to section one thousand fifty-one of this [act]
 ARTICLE or unless the petition is dismissed  upon  the  consent  of  the
 petitioner,  the court shall thereupon proceed to a fact-finding hearing
 under this article no later than sixty days after [such] THE application
 TO RESTORE THE MATTER TO THE CALENDAR, unless such period is extended by
 the court for good cause shown; OR
   (II) IN THE CASE OF  AN  ADJOURNMENT  IN  CONTEMPLATION  OF  DISMISSAL
 ISSUED AFTER THE ENTRY OF A FACT-FINDING ORDER, THE COURT SHALL THEREUP-
 ON  PROCEED  TO A DISPOSITIONAL HEARING UNDER THIS ARTICLE NO LATER THAN
 THIRTY DAYS AFTER THE APPLICATION TO RESTORE THE MATTER TO THE CALENDAR,
 UNLESS SUCH PERIOD IS EXTENDED BY THE COURT FOR GOOD CAUSE SHOWN.
   (III) THE COURT SHALL STATE ITS REASONS ON THE RECORD FOR REVOKING  AN
 ADJOURNMENT  IN  CONTEMPLATION  OF DISMISSAL AND RESTORING THE MATTER TO
 THE CALENDAR UNDER THIS SUBDIVISION.
   (f) If the proceeding is not [so] restored to the calendar AS A RESULT
 OF A FINDING OF AN ALLEGED VIOLATION PURSUANT TO SUBDIVISION (E) OF THIS
 SECTION AND IF THE ADJOURNMENT IN  CONTEMPLATION  OF  DISMISSAL  IS  NOT
 EXTENDED  PURSUANT  TO SUBDIVISION (B) OF THIS SECTION, the petition is,
 at the expiration of the adjournment IN CONTEMPLATION OF DISMISSAL peri-
 od, deemed to have been dismissed by the court in furtherance of justice
 [unless an application is pending pursuant to subdivision  (e)  of  this
 section].  If  [such application is granted] THE COURT FINDS A VIOLATION
 PURSUANT TO SUBDIVISION (E) OF THIS SECTION, the petition shall  not  be
 dismissed  and  shall  proceed in accordance with the provisions of such
 subdivision (e).
   (g) Notwithstanding the provisions of this section,  IF  A  MOTION  OR
 ORDER  TO  SHOW CAUSE IS FILED ALLEGING A VIOLATION PURSUANT TO SUBDIVI-
 SION (E) OF THIS SECTION AND THE COURT FINDS THAT REMOVAL OF  THE  CHILD
 FROM THE HOME IS NECESSARY PURSUANT TO SECTION ONE THOUSAND TWENTY-SEVEN
 OF  THIS ARTICLE DURING THE PENDENCY OF THE VIOLATION MOTION OR ORDER TO
 SHOW CAUSE, the court[,] may, at any time  prior  to  dismissal  of  the
 petition  pursuant  to  subdivision  (f) OF THIS SECTION, issue an order

 A. 6837                             4
 
 authorized pursuant to section one thousand twenty-seven OF  THIS  ARTI-
 CLE.  NOTHING IN THIS SECTION SHALL PRECLUDE THE CHILD PROTECTIVE AGENCY
 FROM TAKING EMERGENCY ACTION PURSUANT TO SECTION  ONE  THOUSAND  TWENTY-
 FOUR  OF  THIS  ARTICLE WHERE COMPELLED BY THE TERMS OF THAT SECTION. IF
 THE VIOLATION IS FOUND AND THE MATTER IS RESTORED TO THE  CALENDAR,  THE
 COURT MAY MAKE FURTHER ORDERS IN ACCORDANCE WITH SUBDIVISION (E) OF THIS
 SECTION.
   §  2. Section 1053 of the family court act, as added by chapter 962 of
 the laws of 1970 and subdivision (c) as amended by  chapter  41  of  the
 laws of 2010, is amended to read as follows:
   § 1053. Suspended judgment.  (a) Rules of court shall define permissi-
 ble terms and conditions of a suspended judgment. These terms and condi-
 tions  shall  relate  to  the  acts  or omissions of the parent or other
 person legally responsible for the care of the child.
   (b) The maximum duration of any term or condition of a suspended judg-
 ment is one year, unless the court finds at the conclusion of that peri-
 od, upon a hearing, that exceptional circumstances require an  extension
 thereof for A PERIOD OF UP TO an additional year.  THE COURT SHALL STATE
 ITS  REASONS  ON THE RECORD FOR EXTENDING A PERIOD OF SUSPENDED JUDGMENT
 UNDER THIS SUBDIVISION, INCLUDING ITS REASONS FOR CHANGES IN  THE  TERMS
 AND CONDITIONS, IF ANY.
   (c)  Except  as  provided  for herein, in any order issued pursuant to
 this section, the court may require the child protective agency to  make
 progress  reports to the court, the parties, and the child's attorney on
 the implementation of such order. Where  the  order  of  disposition  is
 issued  upon  the  consent of the parties and the child's attorney, such
 agency shall report to the court, the parties and the  child's  attorney
 no  later  than  ninety days after the issuance of the order, unless the
 court determines that the facts and circumstances of  the  case  do  not
 require such report to be made.
   (D) THE ORDER OF SUSPENDED JUDGMENT MUST SET FORTH THE DURATION, TERMS
 AND  CONDITIONS  OF  THE  SUSPENDED  JUDGMENT,  AND  MUST CONTAIN A DATE
 CERTAIN FOR A COURT REVIEW NOT LATER THAN THIRTY DAYS PRIOR TO THE EXPI-
 RATION OF THE PERIOD OF SUSPENDED JUDGMENT. THE ORDER OF SUSPENDED JUDG-
 MENT ALSO MUST STATE IN CONSPICUOUS PRINT THAT A  FAILURE  TO  OBEY  THE
 ORDER  MAY  LEAD TO ITS REVOCATION AND TO THE ISSUANCE OF ANY ORDER THAT
 MIGHT HAVE BEEN MADE AT THE TIME JUDGMENT WAS SUSPENDED. A COPY  OF  THE
 ORDER OF SUSPENDED JUDGMENT MUST BE FURNISHED TO THE RESPONDENT.
   (E)  NOT  LATER THAN SIXTY DAYS BEFORE THE EXPIRATION OF THE PERIOD OF
 SUSPENDED JUDGMENT, THE PETITIONER SHALL  FILE  A  REPORT,  PURSUANT  TO
 SECTION  ONE THOUSAND FIFTY-EIGHT OF THIS ARTICLE, WITH THE FAMILY COURT
 AND ALL PARTIES, INCLUDING THE RESPONDENT AND HIS OR HER  ATTORNEY,  THE
 ATTORNEY  FOR  THE CHILD AND INTERVENORS, IF ANY, REGARDING THE RESPOND-
 ENT'S COMPLIANCE WITH THE TERMS OF THE SUSPENDED  JUDGMENT.  THE  REPORT
 SHALL  BE  REVIEWED  BY THE COURT ON THE SCHEDULED COURT DATE.  UNLESS A
 MOTION OR ORDER TO SHOW CAUSE HAS BEEN FILED PRIOR TO THE EXPIRATION  OF
 THE  PERIOD  OF  SUSPENDED  JUDGMENT  ALLEGING A VIOLATION OR SEEKING AN
 EXTENSION OF THE PERIOD OF THE SUSPENDED  JUDGMENT,  THE  TERMS  OF  THE
 DISPOSITION  OF  SUSPENDED  JUDGMENT  SHALL BE DEEMED SATISFIED. IN SUCH
 EVENT, THE COURT'S JURISDICTION OVER THE PROCEEDING SHALL BE TERMINATED.
 HOWEVER, THE ORDER OF FACT-FINDING AND THE PRESUMPTIVE  EFFECT  OF  SUCH
 FINDING  UPON  RETENTION OF THE REPORT OF SUSPECTED ABUSE AND NEGLECT ON
 THE STATE CENTRAL REGISTER IN ACCORDANCE WITH PARAGRAPH (B) OF  SUBDIVI-
 SION EIGHT OF SECTION FOUR HUNDRED TWENTY-TWO OF THE SOCIAL SERVICES LAW
 SHALL  REMAIN IN EFFECT UNLESS THE COURT GRANTS A MOTION BY THE RESPOND-

 A. 6837                             5
 
 ENT TO VACATE THE ORDER OF FACT-FINDING PURSUANT TO SECTION ONE THOUSAND
 SIXTY-ONE OF THIS ARTICLE.
   §  3.  Section 1071 of the family court act, as amended by chapter 437
 of the laws of 2006, is amended to read as follows:
   § 1071. Failure to comply with terms and conditions of suspended judg-
 ment. If, prior to the expiration of the period of the  suspended  judg-
 ment,  a  motion  or  order  to  show cause is filed that alleges that a
 parent or other person legally responsible for a child's  care  violated
 the  terms  and  conditions of a suspended judgment issued under section
 one thousand fifty-three of this article, the period  of  the  suspended
 judgment  shall be tolled AS OF THE DATE OF SUCH FILING pending disposi-
 tion of the motion or order to show cause.  IF A MOTION OR ORDER TO SHOW
 CAUSE ALLEGING A VIOLATION HAS BEEN  FILED  AND  THE  COURT  FINDS  THAT
 REMOVAL  OF THE CHILD FROM THE HOME PENDING DISPOSITION OF THE MOTION OR
 ORDER TO SHOW CAUSE IS NECESSARY PURSUANT TO SECTION ONE THOUSAND  TWEN-
 TY-SEVEN  OF THIS ARTICLE, THE COURT MAY ISSUE AN ORDER PURSUANT TO SUCH
 SECTION ONE THOUSAND  TWENTY-SEVEN.    NOTHING  IN  THIS  SECTION  SHALL
 PRECLUDE THE CHILD PROTECTIVE AGENCY FROM TAKING EMERGENCY ACTION PURSU-
 ANT  TO SECTION ONE THOUSAND TWENTY-FOUR OF THIS ARTICLE WHERE COMPELLED
 BY THE TERMS OF THAT  SECTION.  If,  after  A  hearing  ON  THE  ALLEGED
 VIOLATION,  the court is satisfied by competent proof that the parent or
 other person violated the order of suspended  judgment,  the  court  may
 revoke  the  suspension  of judgment and enter any order that might have
 been made at the time judgment was suspended OR MAY EXTEND THE PERIOD OF
 SUSPENDED JUDGMENT PURSUANT TO SUBDIVISION (B) OF SECTION  ONE  THOUSAND
 FIFTY-THREE  OF  THIS  ARTICLE.  THE  COURT  SHALL STATE ITS REASONS FOR
 REVOKING OR EXTENDING A PERIOD OF SUSPENDED JUDGMENT UNDER THIS SECTION.
   § 4. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.