Family Court Act § 311.4(3)

Respondent’s background was obtained by means of questions put to TS who has supervised respondent’s foster care with New York Foundling since 2007. Criminal Respondent was referred to the Girls Education & Mentoring Services, a social services program offering counseling to young women who have been sexually exploited sometime in 2009. On October or November of 2009, respondent disappeared from the GEMS facility and she subsequently fabricated a kidnapping, stating that kids kidnapped her from GEMS. According to TS, respondent later recanted, stating it was made up and she was not kid-napped. Rather, she went off and spent some time with a young man. According to TS, respondent had been referred to the GEMS program by New York Foundling because BP has a history of prostitution. TS recalled that in 2007 respondent’s foster care case had come under her supervision and that respondent, who was then just 12 years old, was already introduced to the lifestyle and had been working with criminal adult pimps.

In October, 2009, respondent gave birth to her own daughter and she and the infant were initially placed in a “mother/daughter” foster home in Brooklyn. Since then, the infant has been removed from respondent’s custody and placed into a different foster home. Child protective proceedings have been commenced on behalf of the infant and against the respondent by the Administration for Children’s Services.

In arguing for the substitution of a PINS petition, respondent’s Law Guardian contended that respondent is a victim of sexual exploitation and is entitled to the relief requested. The Law Guardian observed that respondent has no prior juvenile delinquency adjudications for offenses based upon acts defined by article 230 of the Penal Law nor does she have any PINS history in the Family Court. In addition, the respondent is herself a child placed in foster care as the result of child protective proceedings and termination of parental rights proceedings which had been previously brought against her biological parents.

On the other hand the Presentment Agency argued against the requested substitution on the ground that the respondent has failed to express a genuine current willingness to accept and comply with the services.

As noted by the Assistant Corporation Counsel, respondent had already been offered services by New York Foundling, including a referral to the GEMS program, but she has a history of running away from her foster home and the GEMS program facility. Respondent’s attorney contended that she is currently willing to accept services as indicated, in part, by her planned cooperation with the District Attorney’s office in its ongoing investigation of prostitution in Queens County. Indeed, the Law Guardian observed that her client has been assisting Assistant District Attorney to prosecute the pimp that has been involved in this young lady’s life. Respondent had received a subpoena to appear in Criminal Court on 7 June or 8 June 2010, and it was her intention to appear and cooperate. As observed by the Law Guardian, respondent’s cooperation with the Assistant District Attorney on that is proof, for lack of a better word, that she is willing to cooperate with any services that are put in place for her.
The court determined that there was a serious risk that respondent would commit further criminal acts or acts of juvenile delinquency were she to be released to her lawful custodian pending further proceedings upon the petition. Based upon respondent’s history, there was a substantial probability that she would not return to court for further proceedings were she to be released, as well as that the continuation of respondent in her present home would be contrary to her best interests, and that reasonable efforts had been made prior to the date of the initial appearance to prevent or eliminate the need for removal of the respondent from her home.

The Court reserved decision on the respondent’s substitution application as it was unclear whether this particular sex crimes case was one in which substitution under Family Court Act § 311.4(3) was appropriate. The Court then proceeded to enter an order in accordance with Family Court Act § 320.5 directing that the respondent be detained in the custody of the New York City Department of Juvenile Justice pending further proceedings upon the petition.