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Court Discusses Guardians’s Motion to Dismiss


A New York Family Lawyer said that, the petition in this matter was filed on or about May 14, 1991 in Westchester County Family Court and on July 18, 1991 a fact-finding hearing was held. Thereafter the Court entered a finding that the respondent committed an act which, if done by an adult, would constitute the crime of Assault in the Third Degree under Penal Law § 120.00(1) which is a Class A misdemeanor. Pursuant to § 302.3(4) of the Family Court Act [hereinafter cited as “FCA”] the Judge in Westchester County ordered the proceeding transferred to the Family Court of Kings County for further action, and released the respondent to the custody of her mother pending the dispositional hearing.

A New York Custody Lawyer said that, on August 26, 1991 the case arrived in Kings County from Westchester County. On August 27, 1991, the case appeared on the court’s calendar and a summons was issued for the respondent. The respondent appeared with her mother on the return date, September 23, 1991, and a new law guardian was assigned, as the attorney who represented the respondent in Westchester County was discharged at the conclusion of the fact-finding. The Court ordered a probation investigation, pursuant to FCA § 351.1(2) and adjourned the case to October 30, 1991. On October 30, 1991 the law guardian requested time to submit a written motion dismissing the proceeding, and whatever rights the respondent may have had to a “speedy disposition” were waived by the respondent’s attorney at that time in order to prepare the motion.

A Nassau County Family Lawyer said that, the law guardian asks the Court to dismiss the petition, pursuant to FCA § 350.1(2), which provides that in all cases where the respondent is not detained, “the dispositional hearing shall commence not more than fifty days after entry of an order [fact-finding] pursuant to FCA § 345.1.” Respondent argues that the time from which to measure the fifty days begins on August 5, 1991 when the Westchester court entered the fact-finding order. Therefore the Court was required to conduct a dispositional hearing before September 24, 1991. When the case was adjourned from September 23, 1991 to October 30, 1991, that adjournment exceeded the fifty days provided for in the statute, and since the Kings County court made no finding of “good cause” or “special circumstances,” pursuant to FCA § 350.1 (3) or (5) to warrant an adjournment beyond the fiftieth day, the case must be dismissed for failure to provide the respondent with a “speedy disposition.”

The issue in this case is whether the guardian’s motion to dismiss the petition should be granted.

The presentment agency correctly argues that when the case was transferred from Westchester County, no court date was set. Therefore, on August 27, 1991 when the case appeared in Kings County Family Court, the respondent did not appear because she had not been notified of the August date by either court. The petitioner argues that there is no right to a “speedy disposition” under FCA § 310.2 and further that the respondent’s right to a disposition in fifty days has not been violated. The presentment agency contends that the respondent did not object to the adjournment on September 23, 1991 and therefore any requirement that there be an “explicit waiver” by the respondent has been overcome by her silence. To the extent that there is any requirement for “good cause” or “exceptional circumstances,” the presentment agency argues that on September 23, 1991 the Court made a record setting forth the reasons necessitating additional time, consequently the case should not be dismissed.

It is clear to this Court that the drafters of Article III of the Family Court Act did not contemplate or provide for the consequences of inter-county transfers within the Family Courts authorized under FCA § 302.3(4). Time frames for calendaring cases are set forth in the statute for a variety of other situations: (a) court appearances following the issuance of a Family Court appearance ticket; (b) court appearances following the filing of a petition, otherwise known as the “initial appearance”; (c) pre-trial transfers between different courts pursuant to Section 725.05 of the Criminal Procedure Law; and (d) post-trial or post-plea transfers between different courts pursuant to Sections 220.10, 310.85 and 330.25 of the Criminal Procedure Law.

FCA § 350.2(1) is the closest analog to the situation presented by an inter-county transfer within the Family Courts between fact-finding and disposition. To account for the delays occasioned by inter-court transfers, e.g. from the Supreme Court or Criminal Court to the Family Court, FCA § 350.2(1) adjusts the date of the fact-finding hearing. It alters the date on which the original fact-finding order was made by the first court to the date the case is filed after removal in the second court. Under FCA § 350.2(2), the clerk of the court is to calendar an appearance within seven days from the date the order of removal was filed and on “at such appearance, the court shall schedule a dispositional hearing.” If this Court were to apply the procedure for transfers pursuant to the FCA § 350.2(1) to cases involving inter-county transfers between the Family Courts, the date the case was filed in Kings County would be considered the fact-finding date, instead of July 18, 1991 (the date the order was actually entered by the Judge in Westchester County). Were the provisions of FCA § 350.2(2) applicable to the facts of this case, the clerk would have issued notice to the respondent and calendared the case for September 3, 1991 instead of calendaring the case for August 27, 1991 without notice.

In the absence of any statutory guidance for this particular situation, this Court holds that FCA § 350.2 offers a workable, interim solution for cases involving inter-county transfers within the Family Court pursuant to FCA § 302.3(4). Therefore, in accordance with FCA § 350.2(2), the Court holds the fifty days should begin to run from the date of the respondent’s scheduled appearance and not, as the respondent contends, from the date which the original fact-finding order is made and the transfer authorized. On August 27, 1991, neither the Clerk of this court nor this Judge notified the respondent to appear within seven days as the statute provides. Nevertheless, seven of the initial twenty-seven days allocated by this Judge for service of a summons are properly chargeable to the notice provisions of FCA § 350.2(2), and the correct date from which to measure the fifty days should be September 3, 1991. On September 23, 1991, when the respondent actually appeared and was assigned counsel, the case was adjourned an additional thirty-seven days (to October 30, 1991) without objection from respondent. This was seven days beyond the fiftieth day (measured from September 3, 1991) in which dispositional hearings are required to take place unless there has been a finding of “good cause.” In essence, the Court found “good cause” for the additional seven days when the adjournment was granted on September 23, 1991 and none of those reasons were attributable to calendar congestion or the court’s backlog. They were for the benefit of the respondent–to enable her to have effective assistance of counsel and to provide the Court with quality reports to use in fashioning a dispositional order tailored to the respondent’s individual needs. The respondent has not been prejudiced by this Court’s actions. It is neither in the interests of justice nor in furtherance of the rehabilitative purpose of the Family Court Act to dismiss the petition. To suggest that the Court should have ordered a probation investigation on August 27, 1991, before the respondent appeared in Kings County, and had counsel, not only makes little sense, it would be a flagrant violation of the respondent’s constitutional rights to participate at each and every stage of the proceeding and to be represented by an attorney.

Therefore, for all of the foregoing reasons, the respondent’s motion to dismiss the proceeding is denied. Since the dispositional hearing has been scheduled within the timeframe required by FCA §§ 350.1 and 350.2, it is not necessary to determine whether the respondent is entitled to a “speedy disposition.”

If your child is involved in a similar situation, seek the help of Kings Order of Protection Attorney and Kings Guardianship Attorney at Stephen Bilkis and Associates in order to protect your child.

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