S T A T E O F N E W Y O R K
________________________________________________________________________
9409
I N S E N A T E
May 15, 2024
___________
Introduced by Sen. BAILEY -- (at request of the Office of Court Adminis-
tration) -- 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:
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
provisions. UNDER NO CIRCUMSTANCES SHALL THE COURT ORDER ANY PARTY TO
CONSENT TO AN ORDER UNDER THIS SECTION. THE COURT SHALL STATE ITS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08980-01-3
S. 9409 2
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
the duration of the order, if the child protective agency has failed
substantially to provide the respondent with adequate supervision or to
S. 9409 3
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 HAS BEEN GRANTED, 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
HAS BEEN GRANTED, 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
authorized pursuant to section one thousand twenty-seven OF THIS ARTI-
S. 9409 4
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-
ENT TO VACATE THE ORDER OF FACT-FINDING PURSUANT TO SECTION ONE THOUSAND
SIXTY-ONE OF THIS ARTICLE.
S. 9409 5
§ 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.