Matter of Devon R. and Matter of Michael OO

This is a proceeding wherein the respondent has moved to vacate the court’s order dated 21 February 2007 which, upon his consent, extends his placement with the New York State Office of Children and Family Services as a juvenile delinquent for twelve months and directs that OCFS continue respondent’s present placement with LW, an authorized agency within the meaning of Social Services Law §371 (10).

Respondent contends that: (i) the Family Court was without jurisdiction to extend placement; (ii) the proceedings were defective in that the Court did not have the authority to reconvert the proceeding from a Person in Need of Supervision proceeding to a juvenile delinquency proceeding; and (iii) even assuming that the Court had jurisdiction to extend placement with OCFS that placement could not be extended beyond his 18th birthday without his consent.
On 14 September 2004, by petition filed pursuant to Family Court Act §310.1 on 14 September 2004, respondent was alleged to have committed acts which, were he an adult, would constitute the crimes of Criminal Mischief in the Fourth Degree and Menacing in the Third Degree.

Respondent’s initial appearance upon the juvenile delinquency petition occurred on 27 September 2004 and on that same date respondent entered an admission to the count charging him with committing an act which would constitute the sex crimes of Criminal Mischief in the Fourth Degree pursuant to Fam. Ct. Act §§321.2 [3], 321.3.

Upon respondent’s admission to that count of the petition the Court directed the Department of Probation to conduct an investigation into respondent’s circumstances and prepare a written report to the Court, and the Court “temporarily” converted the juvenile delinquency petition to a PINS petition upon the consents of the Presentment Agency and respondent.

Respondent was then remanded to the custody of the New York City Administration for Children’s Services as a PINS and the Commissioner of ACS was directed to arrange for a diagnostic evaluation of the respondent.

On 10 December 2004, the LW caseworker appeared and advised the court that the agency planned to refer the respondent for appropriate services. Respondent was then released to the custody of his mother and the Department of Probation was requested to consider the service plan proposed by LW and to update its report in light of that plan if appropriate.

The dispositional hearing continued on 20 January 2005 and the Department of Probation submitted an updated report. At that time, respondent’s mother informed the Court that respondent had disobeyed the curfew she had set for him and that he had come home at whatever time he pleased, often in the early hours of the morning after having stayed out all night.

Given that respondent appeared to be beyond parental control, the Court vacated its prior order substituting a PINS petition for the juvenile delinquency petition and respondent was ordered detained by the Department of Juvenile Justice pending further proceedings upon the reinstated juvenile delinquency petition on 7 February 2005. The Family Court Mental Health Services Clinic was directed to conduct a psychological assessment of the respondent and the Department of Probation and ACS were directed to explore possible placement resources for the respondent.

The criminal court concluded that the respondent was a person in need of supervision, treatment or confinement and he was adjudicated to be a juvenile delinquent. Thereafter, upon the Court’s own motion and with the consent of the Law Guardian, a finding that respondent is a PINS was substituted for a finding that he was a juvenile delinquent akin to Matter of Devon R. and Matter of Michael OO. and based upon the evidence adduced at the dispositional hearing respondent was placed in the custody of the Administration for Children’s Services with a further direction that he be placed with LW for 12 months.

The order placing the respondent with ACS was based upon the Court’s determination that he required supervision and placement, that continuation of respondent in his own home would not be in his best interests, that reasonable efforts had been made to maintain respondent in the community by substituting a PINS petition for the juvenile delinquency petition and by ultimately releasing him to his parent with the intention of providing him with appropriate community based services. In addition, the Court also considered the needs and best interests of the respondent as well as the need to protect the community akin to Matter of Jeremy L., Matter of Justin H., Matter of Samantha T. and Matter of Ashlie B.

Thereafter, the court was advised that respondent had absconded from the LW campus and the Court issued a warrant for him and by order dated 25 January 2006, respondent’s placement was temporarily extended pending his appearance before the Court upon the warrant akin to Matter of Charles B.

Respondent was returned upon the warrant on 30 January 2006, the warrant was vacated and respondent’s placement was then temporarily extended until 16 February 2006 pending further proceedings upon the sex crimes petition. On 16 February 2006 a caseworker from LW advised the Court that respondent had again absconded from LW RTC and another warrant was issued for him.

The parties consented to the entry of an order extending placement with ACS for one year, effective 6 February 2006 based upon the record before the Court which strongly indicated that respondent required continued supervision and treatment and that a return to his parent would not be in his best interests at this time. Moreover, the court determined that the agency’s permanency plan for the respondent was reasonable and that the agency had exercised reasonable efforts to effectuate that plan.

However, a caseworker appeared before the court to report that the respondent had again absconded from the facility and another warrant was issued for the respondent. Respondent voluntarily appeared upon the warrant on 30 August 2006, the warrant was vacated, and another judge directed that he return to placement with the agency.

Thereafter, the agency caseworker again appeared to request a warrant for the respondent who had again absconded from the facility. The warrant was issued and respondent was not returned upon the warrant until 8 February 2007. At that time, the Court sua sponte vacated its 2 February 2005 order which substituted a PINS finding for an order finding respondent to be a juvenile delinquent, and he was remanded to Elmhurst Hospital Medical Center for a psychological evaluation in accordance with Family Court Act §251, and the proceedings were continued until 21 February 2007.

On 21 February 2007, the Assistant Corporation Counsel, respondent, his mother and the Law Guardian appeared before the Court. At that time, and upon the consent of the parties, an order was entered pursuant to Family Court Act §353.3 which placed respondent in the custody of the Office of Children and Family Services for twelve months as a juvenile delinquent, with the specific directive that he be placed at LW by OCFS. As part of the placement order, the court directed that respondent cooperate with any drug treatment program offered by LW and that OCFS and provide respondent with all necessary medical care, as required by statute.

Similarly, while Family Court Act §311.4 (2) authorizes the Family Court to substitute a PINS petition for a juvenile delinquency proceeding “at any time in the proceedings” and Family Court Act §311.4 (2) authorizes the Court to substitute a PINS finding for a juvenile delinquency finding at the conclusion of the dispositional hearing”, nothing in that section purports to preclude multiple substitutions of petitions or findings in the course of a single criminal proceeding where subsequent developments make clear that the prior substitution was an improvident exercise of judicial discretion as held in Kloogman v Schall.

It should be noted that statutes are to be construed according to the ordinary meaning of their words and where a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded

In the case at bar, the statutory provisions in question provide clearly defined authority and specific procedures governing the exercise of that authority. Nothing in the language of Family Court Act §311.4 or §355.1 indicates any Legislative intention to prohibit multiple substitutions of petitions or findings or multiple applications for relief under Family Court Act §355.1.

Respondent has indicated his unwillingness to continue in the custody of the Office of Children and Family Services as an adjudicated juvenile delinquent. Since respondent was not placed in a restrictive setting after a finding that he committed a designated felony act and he has reached the age of 18, Family Court Act §355.3 (6) prohibits any extension of his placement as a juvenile delinquent absent his consent.

In this case, the reports filed with the Court on 21 February 2007 indicate that respondent is not yet prepared for a release to the community and that he would benefit from the continued services which would be provided by an extension of placement.

Given that respondent’s consent was a prerequisite to the order extending his placement as a juvenile delinquent and that consent may not be compelled, the court must conclude that respondent, who is now 18 years old, may revoke that consent, whether or not that is objectively in his best interests.

Accordingly, the court finds that respondent’s present refusal to continue in placement with OCFS constitutes a substantial change of circumstances warranting judicial action pursuant to Family Court Act §355.1. Respondent is manifestly incapable of caring for himself at the present time, and given his expressed willingness to continue his placement at LW as a person in need of supervision in the custody of ACS, the Court will exercise its discretion and vacate the 21 February 2007 order extending respondent’s placement with OCFS for LW, and the Court will substitute a finding that a sex crimes respondent is a person in need of supervision for a finding of juvenile delinquency pursuant to Family Court Act §311.4 (2).

Upon that substitution of the PINS finding for the juvenile delinquency finding, the court enters an order pursuant to Family Court Act §756-a placing respondent with ACS for placement with LW, upon his consent.

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