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In re Matthew L.

June 30, 2009

IN THE MATTER OF MATTHEW L. (ANONYMOUS), APPELLANT.


APPEAL by Matthew L. (Anonymous) in a proceeding pursuant to Family Court Act article 7, from an order of the Family Court (Andrew G. Tarantino Jr., J.), dated May 1, 2008, and entered in Suffolk County, which denied his motion to dismiss the person in need of supervision petition and two violation of probation petitions and to vacate an order of the same court dated February 27, 2008, placing him on a period of probation for one year.

The opinion of the court was delivered by: Leventhal, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., MARK C. DILLON, EDWARD D. CARNI & JOHN M. LEVENTHAL, JJ.

(Docket No. S-01212-08)

OPINION & ORDER

The issue presented here is whether the Family Court Act authorizes a Family Court to extend the probation of a person adjudicated to be a person in need of supervision (hereinafter PINS), beyond his or her eighteenth birthday without his or her consent.

The appellant was adjudicated a PINS on February 15, 2008, and a disposition including probation was entered on February 27, 2008, prior to his eighteenth birthday.*fn1 Petitions for violations of probation were filed on March 6, 2008, and April 1, 2008. Thereafter, the appellant moved to dismiss the PINS petition and the violation of probation petitions, and to vacate the February 27, 2008, order of probation. The appellant maintained that although the Family Court had jurisdiction over him even after he had turned 18 years of age, he could refuse to participate in any programs directed as a part of probation without recourse. He argued that article 7 of the Family Court Act precluded the use of any enforcement provision including placement for his failure to comply. In an order dated May 1, 2008, the Family Court denied the application. The appellant challenges that order on this appeal.

The appellant also argues in his brief on this appeal that an order of the Family Court dated May 5, 2008, which amended the order of probation, should be vacated on other grounds. However, the appellant has not filed a notice of appeal with respect to that order, and therefore that issue is not properly before this Court.

In its May 1, 2008, order denying the motion to dismiss, the Family Court held that: Under § 714(b) of the Family Court Act it is stated that "if the respondent is within the jurisdiction of the Court, but the proceedings were initiated after the respondent's eighteenth birthday, the family court shall dismiss a petition to determine whether a person is in need of supervision." This mandatory dismissal is specifically aimed at proceedings initiated after the eighteenth birthday. Similarly, under § 756-a(f) it is stated that "no placement may be made or continued beyond the child's eighteenth birthday without his or her consent and in no event past his or her twenty-first birthday." The statute does not require the respondent's consent when the disposition is either suspended judgment under § 755 or probation under § 757. In this matter the Court seeks to continue the probation order issued pursuant to § 757(b), which permits the Court to order probation for a period "not to exceed one year." This section further permits the Court to continue probation for an additional year if exceptional circumstances exist. It is well established that the Legislature's failure to include a provision within a statute is to be construed as indicating that the exclusion was intentional. (Citations omitted)

Article 7 of the Family Court Act

Family Court Act § 712(a) defines a person in need of supervision as "[a] person less than eighteen years of age who does not attend school in accordance with the provisions of part one of article sixty-five 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 other lawful authority, or who violates the provisions of section 221.05 of the penal law [unlawful possession of marijuana]." Pursuant to Family Ct Act § 714(a), "the age of the respondent at the time the need for supervision allegedly arose is controlling." However, Family Court Act § 714(b) precludes the initiation of a PINS proceeding after the respondent's eighteenth birthday. A PINS petition must be filed before the intended respondent's eighteenth birthday, regardless of the date or dates of the alleged conduct (see Sobie, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Court Act § 714, at 9). Upon adjudication that a person is in need of supervision, Family Court Act § 754 gives the court four dispositional alternatives to choose from: discharging the respondent with warning, suspending judgment, continuing the proceeding and placing the respondent pursuant to Family Court Act § 756, or placing the respondent on probation.

The appellant contends that although the Family Court Act does permit a PINS proceeding to continue beyond the eighteenth birthday, it does not allow for the continuation of probation once the individual reaches the age of majority. Further, the appellant contends that even if probation were permitted to continue, there are no enforcement measures that may be imposed for violations beyond the eighteenth birthday. However, we find that contrary to these contentions, there are no age restrictions as to the imposition of a warning, suspension of judgment, or placement. Further, article 7 does not limit the imposition of placement to an individual under 18 years of age. Family Court Act § 756, which refers to placement as a dispositional alternative in a PINS proceeding, allows the court to place a "child in its own home or in the custody of a suitable relative or other suitable private person or a commissioner of social services, subject to the orders of the court." Placements under this section may be for an initial period of 12 months (see Family Ct Act § 756[b]). Notably, this section does not establish an upper age limit for placement, or contain any language restricting the court's ability to place a child beyond his or her eighteenth birthday. Age is addressed only in Family Court Act § 756-a, entitled "Extension of Placement." Under Family Court Act § 756-a(f), "successive extensions of placement under this section may be granted, but no placement may be made or continued beyond the child's eighteenth birthday without his or her consent and in no event past his or her twenty-first birthday."

Family Court Act § 353.3, which contains language similar to article 7, authorizes the Family Court to place a juvenile delinquent in the custody of a suitable relative or private person, or with the New York State Office of Children and Family Services (hereinafter OCFS), and contains no age restriction for initial placements. Article 3 addresses age only in § 355.3(6), entitled "Extension of Placement." In language virtually identical to Family Court Act § 756-a(f), Family Court Act § 355.3(6) provides that "successive extensions of placement under this section may be granted, but no placement may be made or continued ...


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