- Consolidated Laws - Family Court
PART 3
PRELIMINARY PROCEDURE
Section 732. Originating proceeding to adjudicate need for supervision.
733. Persons who may originate proceedings.
734. Rules of court for preliminary procedure.
735. Preliminary procedure; adjustment services.
736. Issuance of summons.
737. Service of summons.
738. Issuance of warrant for respondent or other person legally
responsible for care.
739. Release or detention after filing of petition and prior to
order of disposition.
740. Temporary order of protection.
S 732. Originating proceeding to adjudicate need for supervision. A
proceeding to adjudicate a person to be in need of supervision is
originated by the filing of a petition, alleging:
(a) the respondent is an habitual truant or is incorrigible,
ungovernable, or habitually disobedient and beyond the lawful control of
his parents, guardian or lawful custodian, and specifying the acts on
which the allegations are based and the time and place they allegedly
occurred;
(b) the respondent was under eighteen years of age at the time of the
specified acts; and
(c) the respondent requires supervision or treatment.
S 733. Persons who may originate proceedings. The following persons
may originate a proceeding under this article:
(a) a peace officer, acting pursuant to his special duties, or a
police officer;
(b) the parent or other person legally responsible for his care;
(c) any person who has suffered injury as a result of the alleged
activity of a person alleged to be in need of supervision, or a witness
to such activity;
(d) the recognized agents of any duly authorized agency, association,
society or institution; or
(e) the presentment agency that consented to substitute a petition
alleging the person is in need of supervision for a petition alleging,
that the person is a juvenile delinquent pursuant to section 311.4.
S 734. Rules of court for preliminary procedure. (a) Rules of court
shall authorize and determine the circumstances under which the
probation service may
(i) confer with any person seeking to file a petition, the potential
respondent and other interested persons concerning the advisability of
filing a petition under this article, and
(ii) attempt to adjust suitable cases before a petition is filed over
which the court apparently would have jurisdiction. The probation
service may make a recommendation regarding adjustment of the case to
the corporation counsel or county attorney and provide such information,
including any record of previous adjustments and arrests, as it shall
deem relevant, provided, however, the probation service shall not
transmit or otherwise communicate to the corporation counsel or county
attorney any statement made by the potential respondent to a probation
officer.
(b) The probation service may not prevent any person who wishes to
file a petition under this article from having access to the court for
that purpose.
(c) Efforts at adjustment pursuant to rules of court under this
section may not extend for a period of more than two months without
leave of a judge of the court, who may extend the period for an
additional sixty days.
(d) The probation service may not be authorized under this section to
compel any person to appear at any conference, produce any papers, or
visit any place.
(e) No statement made during a preliminary conference may be admitted
into evidence at a fact-finding hearing or, if the proceeding is
transferred to a criminal court, at any time prior to the conviction.
(f) The provisions of this section shall apply only to those
jurisdictions that have not designated an assessment service pursuant to
an approved assessment and services plan, as described in section two
hundred forty-three-a of the executive law.
S 735. Preliminary procedure; adjustment services. (a) Except as
otherwise provided in this section, rules of the court shall authorize
and determine the circumstances under which the probation service
(i) may confer with any person seeking to file a petition, the
potential respondent and other interested persons concerning the
advisability of filing a petition under this article, and
(ii) shall attempt to adjust suitable cases before a petition is filed
over which the court has apparent jurisdiction or, by order of the
court, after the petition is filed but before the fact-finding hearing
is commenced.
(b) Any person or agency seeking to file a petition pursuant to this
article which does not have attached thereto the documentation required
by subdivision (h) of this section shall be referred by the clerk of the
court to the probation service, which shall schedule and hold, on
reasonable notice to the petitioner, the potential respondent and his or
her parents, guardian or legal custodian, at least one conference in
order to determine the factual circumstances of the potential respondent
and, in appropriate cases, determine whether the potential respondent
qualifies for adjustment services pursuant to this section in accordance
with criteria established by regulations of the state division of
probation and correctional alternatives. Notwithstanding the provisions
of section two hundred sixteen-c of this act, the clerk shall not accept
for filing under this part any petition which does not have attached
thereto the documentation required by subdivision (h) of this section.
(c) (i) Except as provided in paragraphs (ii) and (iii) of this
subdivision, every potential respondent, and the parent or parents with
whom the potential respondent is living, or the guardian or legal
custodian, shall qualify for adjustment services.
(ii) Where the potential respondent has previously been placed outside
his or her own home as a result of a prior determination that he or she
was in need of supervision or as a result of a prior adjudication of
juvenile delinquency, or has been sentenced as a result of a prior
conviction as a juvenile offender, or where the potential respondent has
received adjustment services pursuant to paragraph (iii) of subdivision
(e) of this section within the past year, the probation service shall
determine whether the potential respondent qualifies for adjustment
services under this article.
(iii) Where the potential respondent is also a respondent in a pending
juvenile delinquency proceeding and the permission of the court is
required prior to adjustment pursuant to section 308.1 of this act or a
defendant in a pending juvenile offender proceeding, the probation
service shall determine whether the potential respondent qualifies for
adjustment services under this article; provided, however, that if the
potential respondent is determined to qualify, the probation service
shall request permission of the court to provide adjustment services,
and if the court denies such request the probation service shall find
that the potential respondent does not qualify for such services.
(iv) The determinations of the probation service made pursuant to
paragraphs (ii) and (iii) of this subdivision shall be made according to
criteria established by regulations of the state division of probation
and correctional alternatives based on such factors as the circumstances
of the potential respondent and of his or her parent, legal guardian or
custodian, the nature of the act or acts alleged to have been committed
by the potential respondent, previous adjustment efforts by probation
services and the prior involvement of the potential respondent with the
family court.
(v) Where the court has ordered, pursuant to section seven hundred
forty-two of this article, that attempts to adjust the case be
undertaken, the probation service shall provide adjustment services to
the respondent notwithstanding any prior determination that the
respondent does not qualify for such services.
(d) Adjustment services shall be provided by the probation service, in
accordance with regulations promulgated by the state division of
probation and correctional alternatives, to persons determined to
qualify for such services in accordance with subdivision (c) of this
section, unless the potential respondent refuses to consent to or to
cooperate in the provision of such services. In any case where the
consent of the potential respondent has been obtained, the probation
service may, in its discretion, offer to provide adjustment services to
any other person who evidences an interest in and whose participation
would be beneficial to the respondent or potential respondent.
(e) Adjustment services shall include:
(i) Providing information on the availability of service in the
geographic area where the respondent or potential respondent is located
that may be of benefit in avoiding the need to file a petition under
this article.
(ii) Scheduling and holding at least one conference with the persons
qualifying for adjustment services and the person or representatives of
the entity seeking to file a petition under this article concerning the
need for filing such a petition and any alternatives that may be
available.
(iii) Where the case has not been reconciled after the conclusion of
at least one such conference
(A) referring persons qualifying for adjustment to the county or city
assessment service established in accordance with the county or city
plan approved pursuant to section two hundred forty-three-a of the
executive law and, in addition, referring such persons for services such
as those described in such sections on an interim basis, where the need
for immediate services has been identified;
(B) developing directly or through the assessment service, a case plan
and case record, based on the assessment, for the provision of services
to such persons;
(C) maintaining the case plan and case record developed in accordance
with subparagraph (B) of this paragraph; and
(D) in accordance with the case plan, referring such persons, directly
or through the assessment service, to another government agency or
community organization, and assisting such persons, directly or through
the assessment service, in effectively accessing such services,
including but not limited to the services described in section two
hundred forty-three-a of the executive law.
(f) The probation service shall maintain a written record with respect
to each respondent or potential respondent for whom it considers
providing or provides adjustment services pursuant to this section. The
record shall not include any statement made to the probation service or
to any agency or organization to which the probation service has
referred the respondent or potential respondent pursuant to this
section. The record shall be made available to the court at or prior to
the initial appearance of the respondent in any proceeding initiated
pursuant to this article. Such record shall set forth:
(i) any determination that the potential respondent does not qualify
for adjustment services;
(ii) any termination of adjustment services because of the failure of
the respondent or potential respondent to consent to or actively
participate in the adjustment process;
(iii) any termination of adjustment services because the case has been
successfully adjusted;
(iv) any termination of adjustment services because the time limits
established by subdivision (g) of this section have been exceeded; or
(v) the fact that the probation service has been unable to develop an
agreed upon service plan within thirty days of the date the case is
opened by such service.
(g) Efforts at adjustment pursuant to this section may not extend for
a period of more than ninety days without leave of a judge of the court,
who may extend the period for one additional period of ninety days.
(h) Immediately following the initial conference required by
subdivision (b) of this section the probation service shall provide the
potential petitioner with a written statement setting forth the date of
such conference. The probation service shall promptly give written
notice to the potential petitioner whenever it determines that the
potential respondent does not qualify for adjustment services.
Furthermore, the probation service shall promptly give written notice to
the potential petitioner whenever adjustment attempts have terminated,
or the time to provide adjustment services has expired, and shall
indicate in such notice whether the case has been successfully adjusted.
The notices and written statement required by this subdivision shall be
on standard forms developed for such purposes by the state division of
probation and correctional alternatives, in consultation with the chief
administrator of the courts. No petition may be filed pursuant to this
article during the period the probation service is attempting to adjust
the case, or after such period if the petition is based on the same
factual allegations which previously gave rise to probation service
attempts to adjust the case, and the probation service determines the
case has been successfully adjusted. The clerk of the court shall accept
a petition for filing only if it has attached thereto a written
statement from the probation service identifying the date of the initial
conference required by subdivision (b) of this section and one of the
following:
(i) a notice from the probation service stating that it has determined
the potential respondent does not qualify for adjustment services
pursuant to this article; or
(ii) a notice from the probation service stating that it has
terminated adjustment services, or that the time to undertake adjustment
attempts has expired, and that the case has not been successfully
adjusted; or
(iii) a sworn statement of the petitioner that during a period of at
least ninety days subsequent to the initial conference the petitioner
has received no notice from the probation service that the case has been
successfully adjusted, or that the time to undertake adjustment attempts
has been extended by leave of the court; or
(iv) a notice from the probation service stating that the time to
undertake adjustment attempts has been extended by leave of the court to
a date certain, together with a sworn statement of the petitioner, that
the identified extension has expired and that the petitioner has
received no notice from the probation service that it has successfully
adjusted the case.
(i) The probation service shall not be authorized under this section
to compel any person to appear at any conference, produce any papers, or
visit any place.
(j) The probation service shall not transmit or otherwise communicate
to the potential petitioner, a corporation counsel or county attorney
any statement made by the potential respondent to a probation officer or
to any agency or organization to which the probation service has
referred the potential respondent.
(k) No statement made to the probation service, or to any agency or
organization to which the probation service has referred the potential
respondent, prior to the filing of a petition, or, if a petition has
been filed, prior to the time the respondent has been notified that
attempts at adjustment will not be made or have been terminated, or
prior to the commencement of a fact-finding hearing if attempts at
adjustment have not terminated previously, may be admitted into evidence
at a fact-finding hearing or, if the proceeding is transferred to a
criminal court, at any time prior to a conviction.
(l) The fact that a child is detained prior to the fact-finding
hearing shall not preclude the probation service from adjusting the
case; upon successfully adjusting such a case the probation service
shall notify the detention facility to release the child.
(m) The provisions of this section shall apply to jurisdictions that
have designated an assessment service pursuant to an approved assessment
and services plan, as described in section two hundred forty-three-a of
the executive law.
S 736. Issuance of summons. (1) On the filing of a petition under this
article, the court may cause a copy of the petition and a summons to be
issued, requiring the respondent and his parent or other person legally
responsible for his care, or with whom he is domiciled, to appear at the
court at a time and place named to answer the petition. The summons
shall be signed by the court or by the clerk or deputy clerk of the
court. If those on whom a summons must be served are before the court at
the time of the filing of a petition, the provisions of part four of
this article shall be followed.
(2) In proceedings originated pursuant to subdivision (b) of section
seven hundred thirty-three of this article, the court shall cause a copy
of the petition and notice of the time and place to be heard to be
served upon any parent of the respondent or other person legally
responsible for the respondent`s care who has not signed the petition,
provided that the address of such parent or other person legally
responsible is known to the court or is ascertainable by the court. Such
petition shall include a notice that, upon placement of the child in the
care and custody of the department of social services or any other
agency, said parent may be named as a respondent in a child support
proceeding brought pursuant to article four of this act. Service shall
be made by the clerk of the court by mailing such notice and petition by
ordinary first class mail to such parent or other person legally
responsible at such person`s last known residence.
(3) In proceedings originated pursuant to subdivision (a), (c), (d) or
(e) of section seven hundred thirty-three of this article, the court
shall cause a copy of the petition and notice of the time and place to
be heard to be served upon each parent of the respondent or other person
legally responsible for the respondent`s care, provided that the address
of such parent or other person legally responsible is known to the court
or is ascertainable by the court. Service shall be made by the clerk of
the court by mailing such notice and petition by ordinary first class
mail to such parent or other person legally responsible at such person`s
last known residence.
S 737. Service of summons. (a) Service of a summons and petition shall
be made by delivery of a true copy thereof to the person summoned at
least twenty-four hours before the time stated therein for appearance.
If so requested by one acting on behalf of the respondent or by a parent
or other person legally responsible for his care, the court shall not
proceed with the hearing or proceeding earlier than three days after
such service.
(b) If after reasonable effort, personal service is not made, the
court may at any stage in the proceedings make an order providing for
substituted service in the manner provided for substituted service in
civil process in courts of record.
S 738. Issuance of warrant for respondent or other person legally
responsible for care. The court may issue a warrant, directing that the
respondent or other person legally responsible for his care or with whom
he is domiciled be brought before the court, when a petition is filed
with the court under this article and it appears that
(a) the summons cannot be served; or
(b) the respondent or other person has refused to obey the summons; or
(c) the respondent or other person is likely to leave the
jurisdiction; or
(d) a summons, in the court`s opinion, would be ineffectual; or
(e) a respondent on bail or on parole has failed to appear.
A warrant issued for a respondent under this section shall expire at
the end of six months from the date of its issuance, unless extended for
an additional period of not more than six months upon application by the
petitioner for good cause shown.
S 739. Release or detention after filing of petition and prior to
order of disposition. (a) After the filing of a petition under section
seven hundred thirty-two, the court in its discretion may release the
respondent or direct his detention. In exercising its discretion under
this section, the court shall not direct detention unless it finds and
states the facts and reasons for so finding that unless the respondent
is detained:
(i) there is a substantial probability that he will not appear in
court on the return date; or
(ii) there is a serious risk that he may before the return date do an
act which if committed by an adult would constitute a crime.
(b) Unless the respondent waives a determination that probable cause
exists to believe that he is a person in need of supervision, no
detention under this section may last more than three days (i) unless
the court finds, pursuant to the evidentiary standards applicable to a
hearing on a felony complaint in a criminal court, that such probable
cause exists, or (ii) unless special circumstances exist, in which cases
such detention may be extended not more than an additional three days
exclusive of Saturdays, Sundays and public holidays.
(c) Upon a finding of facts and reasons which support a detention
order pursuant to subdivision (a) of this section, the court shall also
determine and state in any order directing detention:
(i) whether continuation of the respondent in the respondent`s home
would be contrary to the best interests of the respondent based upon,
and limited to, the facts and circumstance available to the court at the
time of the court`s determination in accordance with this section; and
(ii) where appropriate, whether reasonable efforts were made prior to
the date of the court order directing detention in accordance with this
section, to prevent or eliminate the need for removal of the respondent
from his or her home or, if the respondent had been removed from his or
her home prior to the court appearance pursuant to this section, where
appropriate, whether reasonable efforts were made to make it possible
for the respondent to safely return home.
S 740. Temporary order of protection. (a) Upon the filing of a
petition under this article, the court for good cause shown may issue a
temporary order of protection which may contain any of the provisions
authorized on the making of an order of protection under section seven
hundred fifty-nine.
(b) A temporary order of protection is not a finding of wrongdoing.
(c) The court may issue or extend a temporary order of protection ex
parte or on notice simultaneously with the issuance of a warrant
directing that the respondent be arrested and brought before the court
pursuant to section seven hundred thirty-eight of this part.
