Opinion
NN12879-81/09/11A.
Decided February 17, 2011.
This case presents the question of what procedure, if any, exists for the extension of adjournments in contemplation of dismissal ("ACD"s) in child protective proceedings under Article 10 of the Family Court Act. For reasons explained on the record, the Court dismissed, sua sponte, a supplemental petition to extend an ACD for six months. The purpose of this decision is to further explain the Court's reasoning.
Background
On May 12, 2009, the New York City Administration for Children's Services ("ACS") filed a petition against Respondent parents Mark W. and Katrina E. alleging improper supervision and guardianship of Marquita, then age 11, based on the father's failure to locate her when she did not return home hours after school ended and the mother's failure to ensure that Marquita attended sex abuse counseling following abuse by the mother's paramour. The petition further alleged that Marquita's siblings, Rasheena, then age 15 ½, and Cobert, then almost 3, were derivatively neglected. At arraignment, Marquita was released to the temporary custody of her father and the other two children were released to the temporary custody of their mother. In September 2009, Marquita was remanded to the custody of the ACS Commissioner. Subsequently, she was released back to the temporary custody of her father but ACS amended the petition to include allegations that he was also not ensuring that she attended sex abuse counseling.
On July 15, 2010, the Court adjourned the matter in contemplation of dismissal regarding both respondents for six months. Respondents were ordered to comply with ACS supervision, encourage Marquita to attend individual counseling, ensure that she and Rasheena attend school daily, and ensure that all of the children's medical needs are met. The mother was also ordered to keep her own individual counseling appointments. The ACD order also provided that Marquita would live with her father and the other two children would live with their mother. On November 15, 2010, the Court amended this order to put Marquita with the mother too.
The ACD Extension Petition
On January 12, 2011, two days before the ACD was due to expire, ACS filed a petition to extend the ACD period for an additional six months. The petition alleged, among other things, that Marquita was chronically truant, was not obeying her curfew, and was attending counseling only sporadically. More to the point, the petition was designated as a "PETITION FOR EXTENSION OF SUPERVISION" and the wherefore clause stated that Petitioner was seeking good cause to extend supervision pursuant to F.C.A. § 1039(b).
The intake judge temporarily extended the ACD until January 19 and ordered ACS to serve the petition on Respondents. On January 19, this Court temporarily extended the ACD again for one week, ordered new service on Respondents, and also directed that their counsel be notified.
On January 26, 2011, Respondent mother appeared with counsel. The attorneys for the children also appeared. Respondent's counsel objected to any extension of the ACD period and requested a short adjournment for a hearing. The Court adjourned the matter until February 3 and also directed all counsel to provide authority on the question of whether an ACD could be extended over the objection of any party.
Respondent father apparently left before the case was called. His counsel was not available.
Marquita had a separate attorney from her siblings.
On February 3, 2011, the Court dismissed the supplemental petition sua sponte.
Decision
F.C.A. § 1039(a) provides that the petitioner, respondent, and child's attorney all must consent to an adjournment in contemplation of dismissal. Section 1039(b) provides that an ACD "period [is] not to exceed one year" but "[u]pon the consent of the petitioner, the respondent and the child's attorney, the court may issue an order extending such period for such time and upon such conditions as may be agreeable to the parties."
It is this Court's hope that one day this statute will be amended to be in line with F.C.A. § 315.3, which does not require unanimous consent for an ACD in juvenile delinquency proceedings.
This subsection does not explain how to file for an extension of an ACD — whether by motion or petition — but in any event there is no tolling provision, nor is there any provision for a hearing. This is in contrast to subsections 1039(e) and (f), which explain in detail how the parties and the court are to handle an alleged violation of the terms of an ACD. In that instance, "[u]pon application of the petitioner, the child's attorney 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 court finds after a hearing that the respondent has failed substantially to observe the terms and conditions of the order or to cooperate with the supervising child protective agency."
Section 1039(e) goes on to say that one of three things is to follow if the matter is restored to the calendar after a finding of a violation: consent to an order under F.C.A. § 1051 by all the parties, dismissal of the petition upon consent of the petitioner, or proceeding to fact-finding within 60 days. Simply extending the period of the ACD is not an option. Finally section 1039(f), while not using the word "toll," does provide that if the proceeding is not "so restored" to the calendar during the ACD period then it is dismissed automatically "unless an application is pending pursuant to subdivision (e) of this section." See Matter of Jonathan W., 256 AD2d 1174 (4th Dept., 1998); see also Matter of Casey A., — AD2d —, 755 NYS2d 79 (2nd Dept., 2002).
Presumably, a motion to restore a matter to the calendar for an alleged violation of the terms of an ACD can be settled with an agreement to extend the period before the court determines whether there has actually been a violation. But that is not the situation here.
Since the petition in this case was asking for relief under section 1039(b) and not 1039(e), there was no basis for the intake judge and then this Court to temporarily extend the ACD period pending further proceedings and it should not have been done, even temporarily, absent consent of all counsel. The better practice would have been to file for an extension of the ACD much sooner than two days before the order was due to expire, especially since the problems that Marquita was manifesting should have been known to Petitioner earlier, and the issue about temporarily extending the ACD period could have been avoided.
Finally, it should be noted that although the petition here was called one "to extend supervision," it does not actually fall within F.C.A. § 1072, which covers motions for violations of orders of supervision (and has an explicit tolling provision) or F.C.A. § 1061, which generally provides for orders to stay, modify, or vacate "any order issued in the course of a proceeding under this article." Even if section 1061 could be used to modify ACD orders, that is not the statute under which Petitioner sought relief.
Accordingly, the supplemental petition to extend the ACD period in this case is dismissed.