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The National Council of Juvenile and Family Court Judges and the American Bar Association adopted resolutions against the use of restraints for children in court except for circumstances where the child poses a demonstrated safety risk to him or herself or others. In its January 2017 Report of the Family Court Advisory and Rules Committee, the Committee called for an amendment to the Family Court Act adding a new section 162-a, which would create a presumption against routine restraints for children under the age of 21 when they appear in Family Court in all categories of Family Court proceedings. The proposal provides that restrains must be removed upon entry of the child into the courtroom unless the Family Court determines that the restraints are necessary to prevent physical injury by the child to him or herself or another person or physically disruptive courtroom behavior or the child's flight from the courtroom. Even in the circumstances where the child had to be restrained in the courtroom, the proposed statute calls for a "least restrictive alternative" and an opportunity for the child to be heard prior to imposing the restraints.
It is important to recognize that courtroom restraints for adult offenders is recognized as contrary to the ability of the adult to secure a fair criminal trial. See, Deck v. Missouri, 544 U.S. 622, 626 (2005), applied in New York in People v. Best, where Chief Judge Lippman's dissent observed that shackling defendants "strikes at the very heart of the right to be presumed innocent." We believe the same protections should be afforded to juvenile respondents in Family Court.
Challenges to paternity are made by petition to Family Court and involve a number of threshold issues, including whether the Acknowledgment of Paternity was made under fraud, duress, or mistake, and whether determining paternity is in the child's best interest. For an overview of paternity and challenges in Family Court, see our blog here.
We are Attorneys for Children in Schenectady County, appointed by Family Court Justices during Family Court proceedings as the child's advocate and defense counsel. We represent the child's position in the proceeding. FCA §241; See also, Brian S., 141 A.D.3d 1145 (4th Dept. 2016). As AFCs we have a duty of loyalty to the child and keep the child's confidences and privileged information (subject to the Rules of Professional Conduct). AFCs are appointed by the court, instead of being retained by a parent, in order to eliminate any the inherent conflicts. In many Family Court proceedings, the AFC is considered counsel provided to the child as a State and Federal constitutional right.
A child's wishes are not determinative when a court is considering custody and visitation, but do go to the issue of an arrangement best suited to meeting that child's interests. In weighing a child's expressed preference for custody and visitation, the Family Court judge will consider the age and maturity of the child and whether or not influence has been exerted by a parent.
The Family Court Judge will resolve a PINS petition by holding a fact-finding hearing pursuant to FCA §712. The fact-finding hearing determines whether the child did the acts alleged to show that he or she is a person in need of supervision (PINS). If the Court makes that determination, it will then conduct a dispositional hearing to determine whether the child requires supervision or treatment (FCA §712(f)). If the Court finds that supervision or treatment is not required, then the petition will be dismissed. Matter of Harley B., 50 Misc. 3d 828, 831 (FC Clinton Co., 2016). If the Court finds that supervision or treatment is required then four dispositional alternatives are available: (i) discharge the child with a warning, (ii) suspend judgment in accordance with the provisions of FCA §755, (iii) continue the proceeding and place the child in accordance with FCA §756; or (iv) place the child on probation in accordance with the provisions of FCA §757. Matter of Catherine B., 115 A.D.3d 741 (2d Dept. 2014).
Pursuant to FCA §756, the Court may place the child in his or her own home or in the custody of a suitable relative or other suitable private person or the commissioner of social services. Placements under FCA §756 may be for an initial period of twelve (12) months. FCA §756(b). Successive extensions of the placement may be granted up to age eighteen (18) without the child’s consent, past age eighteen (18) with the child’s consent, to a maximum of age twenty-one (21). Matter of Matthew L., 65 A.D.3d 315, 318 (2d Dept. 2009).
A school files a PINS petition when a child fails to attend in compliance with Education Law section 3205(1)(a). Every child in the State, age 6 to 16, is required to attend school full time. Habitual, non-excused (as defined by the school) absences are grounds for a PINS petition.
When a school brings a PINS petition, the designated diversion agency reviews the steps taken by the school to improve attendance and the student's conduct. The diversion agency and school will then attempt additional steps to resolve the issues with the student prior to proceeding on the petition. FCA 735(e)(iii).
We note that the 2009 Vera Institute report indicates that where a school takes an active role in addressing truancy and behavior issues through school-based interventions, there is improved success in returning and keeping children in school without the Family Court's intervention.
Excused school absences are limited and include diagnosed illness, absences for religious observance (EDN §3210(2)(b)), and disability disrupting placement during the implementation of an IEP and establishment of proper services (Matter of Benjamin A., 946 N.Y.S.2d 65 (Fam. Ct. Oswego Co. 2011), There are some limited circumstances where courts have upheld unaddressed severe bullying and school violence as excused absences.
Police officers, parents, schools, social services, and people injured by a child are some of the parties who may originate a PINS proceeding in Family Court under Article 7 of the Family Court Act (FCA). A “person in need of supervision” (“PINS”) is a person younger than 18 years old who does not attend school in accordance with the requirements of the Education Law or who is "incorrigible, ungovernable or habitually disobedient and beyond the lawful control of a parent or other person legally responsible for such child's care" or who violates certain provisions of the penal (criminal) law. A child can also be deemed a PINS if he or she appears to be a sexually exploited child and the child consents to the filing of a PINS petition.