Respondent has moved to vacate this Court's order dated February 21, 2007 which, upon

his consent, extends his placement with the New York State Office of Children and Family

Services ("OCFS") as a juvenile delinquent for twelve months and directs that OCFS continue

respondent's present placement with Leake & Watts, an authorized agency within the meaning

of Social Services Law §371 (10).

In support of the motion to vacate the Court's order extending his placement with OCFS

for Leake & Watts, 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 ("PINS") 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.

By petition filed pursuant to Family Court Act §310.1 on September 14, 2004, respondent [*2]

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 September 27, 2004 (see, Fam.

Ct. Act §320.1-320.5) and on that same date respondent entered an admission to the count

charging him with committing an act which would constitute the crime of Criminal Mischief in

the Fourth Degree (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 (Fam. Ct. Act §351.1 [2]),

and the Court "temporarily" converted the juvenile delinquency petition to a PINS petition upon

the consents of the Presentment Agency and respondent (Fam. Ct. Act §311.4 [1]). Respondent

was then remanded to the custody of the New York City Administration for Children's Services

("ACS") as a PINS and the Commissioner of ACS was directed to arrange for a diagnostic

evaluation of the respondent (Fam. Ct. Act §§739 [a], 749 [b], 750).

A PINS dispositional hearing pursuant to article 7 was commenced before the Court on

November 5, 2004. The written report of the Department of Probation was received into evidence

along with a report from Leake & Watts, the authorized agency at which respondent had been

placed by ACS under the Court's remand order (see, Fam. Ct. Act §750 [2]). However, because

the Leake & Watts caseworker directly responsible for respondent's case was unavailable and

because the diagnostic evaluation of the respondent had not been completed, the hearing was

continued until December 10, 2004. When the hearing continued on December 10, 2004, the

Leake & Watts caseworker appeared and the caseworker advised the Court that the agency

planned to refer the respondent for appropriate services. Respondent was then released to the [*3]

custody of his mother and the Department of Probation was requested to consider the service

plan proposed by Leake & Watts and to update its report in light of that plan if appropriate.

The dispositional hearing continued on January 20, 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 (Fam. Ct. Act §355.1) and

respondent was ordered detained by the Department of Juvenile Justice pending further

proceedings upon the reinstated juvenile delinquency petition on February 7, 2005. The Family

Court Mental Health Services Clinic was directed to conduct a psychological assessment of the

respondent (Fam. Ct. Act §351.1 [2]) and the Department of Probation and ACS were directed to

explore possible placement resources for the respondent.

The dispositional hearing recommenced on February 7, 2005 and the reports by the

Mental Health Services Clinic, ACS and the Department of Probation were introduced into

evidence. Based upon all of the evidence adduced at the hearing the Court concluded that the

respondent was a person in need of supervision, treatment or confinement and he was adjudicated

to be a juvenile delinquent (Fam. Ct. Act §352.1 [1]). 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 (Fam. Ct. Act §311.4 [2]; e.g., Matter of Devon

R., 278 AD2d 15, lv. denied 96 NY2d 707; Matter of Michael OO., 37 AD3d 390, 391), and

based upon the evidence adduced at the dispositional hearing respondent was placed in the [*4]

custody of the Administration for Children's Services with a further direction that he be placed

with Leake & Watts for 12 months (Fam. Ct. Act §§754 [1] [c], 756 [a] [I], [ii]). 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 (Matter of Jeremy L., 220 AD2d 908, 909, lv. denied 87 NY2d

807; Matter of Justin H., 278 AD2d 555, 556-557; Matter of Samantha T., 296 AD2d 869;

Matter of Ashlie B., 37 AD3d 997, 997-998; see, 22 NYCRR §205.67 [c]).

A petition seeking to extend respondent's placement and to review the ACS/Leake &

Watts permanency plan was filed on December 19, 2005 by ACS pursuant to Family Court Act

§756-a. In support of the petition to extend placement, ACS alleged that respondent has made

progress in the therapeutic program at Leake & Watts, that he attends school regularly and is

participating in psychotherapy. While the agency's goal was to eventually reunite respondent

with his mother, the agency was unable to presently effect that goal because the mother lacked

permanent housing. Thus, the agency's immediate plan was to implement family therapy and

to assist respondent's mother in obtaining suitable permanent housing.

During the pendency of the proceedings upon the extension of placement petition the

Court was advised that respondent had absconded from the Leake & Watts campus and the Court

issued a warrant for him (Fam. Ct. Act §738 [d]; 22 NYCRR §205.64), and by order dated [*5]

January 25, 2006, respondent's placement was temporarily extended pending his appearance before the Court upon the warrant (Fam. Ct. Act §756-a [e]; see, Matter of Charles B., 209 AD2d

895, 896).^[FN1] Respondent was returned upon the warrant on January 30, 2006, the warrant was

vacated and respondent's placement was then temporarily extended until February 16, 2006

pending further proceedings upon the petition. On February 16, 2006 a caseworker from Leake &

Watts advised the Court that respondent had again absconded from Leake & Watts RTC and

another warrant was issued for him.

When respondent next appeared before the Court on April 12, 2006 the parties consented

to the entry of an order extending placement with ACS for one year, effective February 6, 2006

(Matter of Bradley J., 23 AD3d 799), 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 (Fam. Ct. Act §756-a [d]; Matter of Kacey

H., 223 AD2d 876, 877; Matter of Chasity B., 28 AD3d 1191; Matter of Natalie B., 32 AD3d

1323, 1324). In addition, the Court determined that the agency's permanency plan (concurrent

plans for a return to parent or a transition to independent living) for the respondent was

reasonable and that the agency had exercised reasonable efforts to effectuate that plan (Fam. Ct.

Act §756-a [d] [i-iv]).

On June 28, 2006 the Leake & Watts 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 August 30, 2006, the warrant

was vacated, and another judge directed that he return to placement with the agency. This Court [*6]

received an updated status report from Leake & Watts on September 20, 2006 and the order of

placement continued. On November 17, 2006 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 February 8, 2007. At that time, the Court

sua sponte vacated its February 2, 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 February 21, 2007.

On February 21, 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 Leake & Watts by OCFS (Fam. Ct. Act §353.3 [4];

e.g., Matter of Marc L., 206 AD2d 953; Matter of Quentin L., 231 AD2d 890, 891; In re

Christopher C., 298 AD2d 389).^[FN2] As part of the placement order, the Court directed

that respondent cooperate with any drug treatment program offered by Leake & Watts and that

OCFS and Leake & Watts provide respondent with all necessary medical care, as required by

statute (see, Social Services Law §398).^[FN3] Thereafter, respondent filed this motion for an order [*7]

vacating the February 8, 2007 order substituting a juvenile delinquency finding for a PINS

finding and the subsequent order placing respondent with OCFS for Leake & Watts.

II

Respondent's argument that the Court lacked the authority to enter the February 8, 2007

order which resubstituted a juvenile delinquency finding for a PINS finding is without merit.

Article 3 of the Family Court Act clearly authorized the entry of the order in question as well as

the subsequent placement of respondent with OCFS for Leake & Watts.

The Court's authority to enter the various orders under review in this case is derived from

two complimentary sections of article 3 of the statute. The PINS substitution section of the

juvenile delinquency statute, Family Court Act §311.4, reads as follows:

1. At any time in the proceedings the court, upon motion of a respondent

or on its own motion, may, with the consent of the presentment agency and

with the consent of the respondent, substitute a petition alleging that the

respondent is in need of supervision for a petition alleging that the respondent

is a juvenile delinquent.

2. At the conclusion of the dispositional hearing the court, upon motion of the

respondent or its own motion, may in its discretion and with the consent of the

respondent, substitute a finding that the respondent is a person in need of

supervision for a finding that the respondent is a juvenile delinquent.

Family Court Act §311.4 (1) authorizes the court to substitute a petition alleging that the

respondent is a person in need of supervision for a petition alleging that he or she is a juvenile

delinquent. Such a substitution may be made at any stage of a juvenile delinquency petition upon

the consent of both the Presentment Agency and the respondent (Matter of Robert Z., 214 AD2d [*8]

203, 204, lv. denied 87 NY2d 808; Matter of Theresa C., 222 AD2d 1107). The substitution of a

PINS petition for a juvenile delinquency petition allows the respondent to obtain "certain

advantages, including the preclusion of placement in a secure facility and the absence of a

finding that a crime was committed" (Matter of Robert Z., at 205). Family Court Act §311.4 (2),

on the other hand, authorizes the court to substitute a finding that a respondent is a person in

need of supervision for a finding that he or she is a juvenile delinquent. "[A] court that is

considering the dispositional component of a juvenile delinquency proceeding has the discretion

in an appropriate case to substitute a PINS finding for the finding of juvenile delinquency"

(Matter of Michael OO., 37 AD3d 1002, 1003).

While the procedures applicable to the Court's substitution authority under Family Court

Act §311.4 are somewhat dissimilar, whether the Court substitutes a PINS petition or a PINS

finding, the underlying intent is to relieve the juvenile of being stigmatized as a juvenile

delinquent and to allow the Court to address the child's needs under the civil provisions of article

7 rather than in the context of a quasi-criminal juvenile delinquency proceeding (Matter of

Robert Z., at 205; Matter of Michael OO., at 1003; Besharov and Sobie, Practice Commentaries,

McKinney's Cons Laws of NY, Book 29A, Fam Ct Act §311.4 at 141; see e.g., Matter of Devon

R., 278 AD2d 15, lv. denied 96 NY2d 707 [court erred in failing to substitute PINS finding in

case where 8 year old respondent committed sodomy and was in need of psychiatric treatment]).

The second relevant section of the statute, Family Court Act §355.1, reads as follows:

1. Upon a showing of a substantial change of circumstances, the court may on

its own motion or on motion of the respondent or his [or her] parent or person

responsible for his [or her] care:

(a) grant a new fact-finding or dispositional hearing; [*9]

(b) stay execution of, set aside, modify, terminate or vacate any order issued in

the course of a proceeding under this article.

2. An order issued under section 353.3 may, upon a showing of a substantial

change of circumstances, be set aside, modified, vacated or terminated upon

motion of the commissioner of social services or [OCFS] with whom the respond-

ent has been placed.

3. If the court enters a new order of disposition under this section the date such

order expires shall not be later than the expiration of the original order.

Family Court Act §355.1 is a codification of the court's inherent authority to modify or

vacate its prior orders in a juvenile delinquency proceeding (Matter of Delfin A., 123 AD2d 318,

320), and the statute "reflect[s] the court's continuing jurisdiction and interest in a juvenile

delinquency proceeding" (Besharov and Sobie, Practice Commentaries, McKinney's Cons Laws

of NY, Book 29A, Family Court Act §355.1, at 496). Accordingly, pursuant to the statute, upon

a motion by or on behalf of a respondent, or upon the court's own motion, a new fact-finding or

dispositional hearing may be granted, and any prior order may be stayed, modified, terminated or

vacated upon a showing of a substantial change of circumstances (Matter of Eugene S., 200

AD2d 574, 575; Matter of Chaz H., 298 AD2d 983, 984; Matter of Barry H., 309 AD2d 1147, lv.

denied 1 NY3d 503; Matter of Eric S.D., 37 AD3d 1045, 1046; Matter of Gary B., 12 Misc 3d

1151 (A), 2006 NY Slip Op 50852(U); Matter of Lavon R., 13 Misc 3d 1237(A), 2006 NY Slip

Op 52153(U)).

Because the needs and circumstances of a particular juvenile delinquent may be unique,

there is no statutory definition of what constitutes a "substantial change of circumstances" for

purposes of Family Court Act §355.1. While every asserted change of circumstances will not be

substantial, a review of the cases reflects that this is a fact-specific determination which must be

made by the Court (see., Matter of Zachary T.D., 26 AD3d 801, 802 [Department of Social [*10]

Services' contention that respondent's move across a county line was substantial change of

circumstances rejected]; Matter of Barry H., at 1147 [sudden availability of previously

unavailable witness who had exercised Fifth Amendment privilege not substantial change of

circumstances]; Matter of Lavon R., supra [no substantial change of circumstances where

respondent had absconded from placement and he required further sex offender treatment];

Matter of Gary B., supra [no substantial change of circumstances where respondent had only

completed half of period of probation supervision in case where he was found to have brought

weapon into public school]); cf. Matter of Jacqueline T., 182 AD2d 547 [court modified

placement order and enters order placing respondent on probation based on death of one parent

and illness of other as well as respondent's successful participation in intensive probation

supervision program during release while appeal was pending]; Matter of Chaz H., 298 AD2d

at 984 [substantial change of circumstances warranted change in placement from DSS to OCFS];

Matter of Eric S.D., 37 AD3d at 1046 [change of placement from DSS to OCFS where DSS had

exhausted its placement resources and respondent required more structured placement]).

Family Court Act §355.1 codifies the Family Court's inherent authority to modify or

vacate a prior order entered in the course of a proceeding (Matter of Delfin A., 123 AD2d at 320)

and nothing in the statute precludes the Court from exercising that authority on more than one

occasion in the course of a juvenile delinquency proceeding. Similarly, while Family Court Act

§311.4 (2) authorizes the Family Court to substitute a PINS petition for a juvenile delinquency

proceeding "[a]t 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 "[a]t the conclusion of the dispositional hearing", nothing in that section purports to preclude multiple substitutions of [*11]

petitions or findings in the course of a single proceeding where subsequent developments make

clear that the prior substitution was an improvident exercise of judicial discretion (People ex rel.

Kloogman v. Schall, 134 Misc 2d 231, 232).^[FN4]

"Statutes are to be construed according to the ordinary meaning of their words . . . [and]

[w]here 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" (Matter of Jose R., 83 NY2d 388, 393-394 [citations

omitted]). Here, 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.^[FN5] The

reading of these statutory provisions urged by the Law Guardian, unsupported as it is by the plain

language of these sections of the statute, would amount to an impermissible judicial rewriting of

the statute to obtain a desired result (Matter of Randy K., 77 NY2d 398, 404; Matter of Detrece [*12]

H., 78 NY2d 107, 111; Matter of Briffel v. County of Nassau, 31 AD3d 79, 85, aff'd sub nom.

Matter of O'Shea v. Board of Assessors of Nassau County, 8 NY3d 249).

While the case relied upon by the Law Guardian, Matter of Tiahek Q. (178 AD2d 1020),

appears to prohibit a resubstitution of a juvenile delinquency finding for a PINS finding, such a

construction of the statute might very well discourage Family Court Judges from exercising their

discretion to substitute a PINS finding for a juvenile delinquency finding, since were such a

limitation to be read into the statute, the Court would thereafter be unable to take further action

under article 3 to safeguard the safety and well-being of a child or to protect the community, once

the initial substitution is made. There is simply no indication that the Legislature intended to

limit the Court's authority in such a manner (People ex rel. Kloogman v. Schall, supra).^[FN6]

The Court has also considered whether the resubstitution of a juvenile delinquency

finding would violate the prohibition against double jeopardy as noted in the Practice

Commentaries (see, Besharov and Sobie, Practice Commentaries, McKinney's Cons Laws of

NY, Book 29A, Family Court Act §311.4, at 142). While the prohibition against double jeopardy

applies to juvenile delinquency proceedings (Fam. Ct. Act §303.2; Matter of Lionel F., 76 NY2d

747, cert. denied 498 US 923), the resubstitution of a juvenile delinquency finding does not [*13]

constitute a second prosecution for the same crimes because the initial order substituting a PINS

finding is not an acquittal, final order or a judgment upon conviction (see, Fam. Ct. Act §1112;

People v. Biggs, 1 NY3d 225, 228-229), and because a substitution under Family Court Act

§311.4 (2) cannot occur unless the Court first adjudicates the child to be a juvenile delinquent

pursuant to Family Court Act §352.1 (Matter of Michael OO., at 1003). Thus, an order which

resubstitutes the juvenile delinquency finding merely restores respondent's status as an

adjudicated juvenile delinquent, which was the position he occupied immediately prior to the

Court's initial order of substitution.

A

On a more practical level, a construction of the statute in the manner suggested by the

Law Guardian could possibly preclude the Court from entering any orders which might provide

continuing services to the respondent who reached age 18 during the pendency of the motion.

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,^[FN7] Family Court Act §355.3 (6) prohibits any extension of his placement

as a juvenile delinquent absent his consent.^[FN8] [*14]

Here, the reports filed with the Court on February 21, 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. While Elmhurst Hospital

reported that respondent does not presently suffer from any cognitive deficits or diagnosed

mental illness, the February 16, 2007 report by Leake & Watts states that the respondent, who

was initially admitted to that agency's PINS facility on September 28, 2004 and transferred to

the agency's juvenile delinquent facility on September 22, 2006, "is not cooperating with

services that have been recommended by the treatment team which could enhance his positive

adjustment and progress in the RTC program." Additionally, the agency reported that

respondent's mother had still not located suitable permanent housing and that she has a substance

abuse problem. Moreover, the agency reports that since respondent was placed in the juvenile

delinquent facility "he has not made any improvements . . . instead he has increased his use of

Marijuana/Alcohol and AWOLing. In the past five months, Gerry's maladaptive behavior has

worsen[ed] as evidenced by his [adult] criminal arrest, truancy at school, frequent AWOL and his

continued involvement with alcohol and drugs." Subsequent to the incident where respondent

was intoxicated and fell off of an overpass sustaining a broken vertebra in his neck, he was

returned to Leake & Watts and was released three times a week to attend occupational and

physical therapy and that when he returned to the agency he frequently returned in an intoxicated

state. Thus, the professional staff at Leake & Watts recommended that respondent be placed in

a more structured alcohol and substance abuse treatment program, based upon his recent failure [*15]

to comply with an out-patient treatment program to which he was referred to by the agency.

Finally, in contrast to the report by Elmhurst Hospital, the September 13, 2006 report of

the psychiatric evaluation of the respondent conducted by Dr. Edward Halperin, a Board

Certified Adolescent Psychiatrist, states that respondent suffers from "Oppositional Defiant

Disorder and Personality Disorder, NOS with explosive features", and the psychiatrist

recommended that respondent be placed in alcohol and substance abuse treatment and that he

continue in placement in "a strict controlling atmosphere."

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. Thus, 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.^[FN9] Because respondent is clearly in need of continued supervision and treatment

and he is manifestly incapable of caring for himself at the present time, and given his expressed

willingness to continue his placement at Leake & Watts as a person in need of supervision in the

custody of ACS,^[FN10] the Court will exercise its discretion and vacate the February 21, 2007 order

extending respondent's placement with OCFS for Leake & Watts, and the Court will substitute

a finding that 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 [*16]

juvenile delinquency finding, the Court enters an order pursuant to Family Court Act §756-a

placing respondent with ACS for placement with Leake & Watts (PINS facility), upon his

consent (Fam. Ct. Act §756-a [f]), effective February 6, 2007.^[FN11]

The permanency findings made by the Court in its February 21, 2007 order are hereby

continued and they are incorporated into the superseding order placing respondent with ACS for

Leake & Watts.

This constitutes the decision and order of the Court.

Notify the Law Guardian, the Presentment Agency, the Office of Children and Family

Services, the Administration for Children's Services and the Department of Probation.

E N T E R:

_________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

May ___, 2007