Jairy R. v. Jeffrey H.

• Decision Date: 06 December 2011
• Citation: 934 N.Y.S.2d 688,34 Misc.3d 448,2011 N.Y. Slip Op. 21428
• Parties: In the Matter of a Person in Need of Supervision Proceeding Under Article 7 of The Family Court Act, JAIRY R., Petitioner, v. JEFFREY H., Respondent.
• Court: New York Family Court

2011 N.Y. Slip Op. 21428
34 Misc.3d 448
934 N.Y.S.2d 688

In the Matter of a Person in Need of Supervision Proceeding Under Article 7 of The Family Court Act, JAIRY R., Petitioner,
v.
JEFFREY H., Respondent.

Family Court, Queens County, New York.

Dec. 6, 2011.

[934 N.Y.S.2d 689]

Gilbert Taylor and Jenny Yu, Special Assistant Corporation Counsels, New York, for Commissioner of the New York City Administration for Children's Services.

Tamara Steckler and Shannon Kahle, The Legal Aid Society, New York, for respondent.

JOHN M. HUNT, J.

[34 Misc.3d 449] Respondent has moved for an order directing that he be placed in the custody of the Commissioner of the New York City Administration for Children's Services (“ACS”) or alternatively, that the Commissioner be ordered to file a petition to extend respondent's placement with the Commissioner and for a permanency hearing.

The pertinent facts in this proceeding are as follows. On February 20, 2009 petitioner, Jairy R., filed a petition pursuant to Family Court Act § 732(a) alleging that her son, Jeffrey H., born February 25, 1993, is a Person in Need of Supervision (“PINS”) as defined by Family Court Act § 712(a).¹ The petition specifically alleges that respondent:

[934 N.Y.S.2d 690]

[34 Misc.3d 450] does not attend school in accord with the provisions of part one of Article 65 of the Education Law and is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of the parent or other lawful authority in that he [runs away]. The last time it was Feb. 18th for 3 days. Sometimes he has left for longer than 3 days. On 3 occasions, he has come back to the house at 5 AM or after 2 days. He's failing in school. He doesn't keep good company. He gets into fights outside of [the] home. He doesn't follow orders at home and he does not arrive home at the time he was told to come back.²

Petitioner appeared before a Judge of the Court on February 20, 2009 and a warrant was issued to compel respondent's appearance before the Court (Fam. Ct. Act § 738[d] ). Petitioner and her son appeared on February 23, 2009 and an attorney was appointed for the respondent. Based upon petitioner's statement that her son was beyond her control, the reasonable efforts made by the ACS Family Assessment Program (“FAP”) to prevent or eliminate the need to remove respondent from his home, the substantial probability that respondent would not return to court if released, and the Court's conclusion that it would be contrary to respondent's interests for him to remain in his home, the Court ordered that he be detained pending further proceedings upon the petition (Fam. Ct. Act § 739[a], [c] ).

A fact-finding hearing upon the PINS petition at which petitioner and respondent both testified was conducted on March 4, 2009. At the conclusion of the hearing, the Court found by proof beyond a reasonable doubt that respondent was beyond the control of his mother based upon his repeated refusals to obey his mother's lawful commands and his failure to obey the curfew set by his mother, and his remaining outside of the home overnight on multiple occasions without the permission of his [34 Misc.3d 451] mother (Fam. Ct. Act § 744[b] ). The Court then adjourned the case for a dispositional hearing and directed that the Department of Probation conduct an investigation into the circumstances of the respondent and his family and that an exploration of possible placement resources be undertaken prior to he hearing (Fam. Ct. Act § 750[2] ).

The dispositional hearing took place on March 20, 2009. The Court received reports from the Department of Probation, St. Vincent's Services, the authorized agency to which respondent had been remanded during the pendency of the proceeding, and school records concerning the respondent provided by the Department of Education. At the conclusion of the hearing respondent was adjudicated to be a PINS (Fam. Ct. Act § 752), and based upon the evidence adduced at the hearing,

[934 N.Y.S.2d 691]

the Court ordered that the respondent be placed in the custody of the Commissioner of ACS for placement in a residential treatment center (RTC) for a period of 12 months (Fam. Ct. Act §§ 754[1] [c]; 756[a][i], [ii], [b] ).

On December 21, 2009 ACS filed a petition pursuant to Family Court Act § 756–a seeking to extend respondent's placement for a period of 12 months and requesting that the Court conduct a permanency hearing concerning the need to continue respondent's placement ( see, Fam. Ct. Act § 756[b]; 756–a[a], [b] ). Proceedings upon the petition were conducted on January 13, 2010, and upon consent of the parties and counsel for the Commissioner of ACS, the placement of respondent was extended for a period expiring on August 12, 2010. The Court further determined that the permanency goal for Jeffrey H. was to be returned to the custody of his parent, and that ACS had made reasonable efforts to achieve that goal during the period of placement.

A second extension of placement and permanency hearing petition was filed by ACS on July 9, 2010. The petition alleged that the respondent remained in the legal custody of the Commissioner and that he was residing at and receiving services from Mercy First, the authorized agency to whom physical custody had been transferred by ACS. The petition alleged that respondent was not yet ready to return to the home of his mother and step-father, as he had not completed the program at the residential treatment center, he did not have a positive relationship or much interaction with his step-father, and because Jeffrey was then only having limited 6 hour off-campus visits with his mother and step-father at the time. The permanency [34 Misc.3d 452] goal remained to return Jeffrey to the custody of his mother upon his completion of the program at Mercy First. By order dated July 16, 2010 and upon the consent of the parties, respondent's placement was extended until his 18th birthday, February 25, 2011. The Court approved the permanency goal which was jointly designated to be a return to his parent or a discharge to independent living, and ACS was directed to provide Jeffrey with counseling to transition to independent living in the event that it was not possible to return him to his mother's custody prior to the end of the placement. The Court further found that ACS had continued to make reasonable efforts to effectuate the permanency plan for Jeffrey in the time since the Court had initially extended his placement on January 13, 2010.

Respondent's request for an order directing that the Commissioner file a further petition to extend his placement as PINS juvenile must be denied. The last order extending respondent's placement in the custody of ACS expired on February 25, 2011. While the...