In re Kevin G.
Opinion of the Court
On June 22, 1992, the within juvenile delinquency petition alleging, inter alia, that respondent committed an act on or about June 1, 1992, which would be the crime of robbery in the first degree if committed by an adult, was filed. Upon proof of the respondent’s nonappearance on a Family Court appearance ticket, a warrant was issued on June 22, 1992. On August 16, 1993, some 13 months and 24 days later, respondent was brought in on the warrant to Family Court, appointed a Law Guardian and arraigned. A general denial was entered by the respondent and the proceeding was adjourned for probable cause hearing to August 19, 1993. On August 19, 1993, respondent for the first time moved (orally) to dismiss the petition pursuant to Family Court Act § 320.2 (1). This oral application was denied without prejudice to formal written motion seeking such relief. The probable cause hearing was adjourned on consent to August 23, 1993. On August 23, 1993, respondent through his counsel made formal application to dismiss for failure to hold a "speedy arraignment”. Respondent relies on Matter of Robert S. (192 AD2d 612 [2d Dept 1993]).
Family Court Act § 320.2 (1) provides: "If the respondent is detained, the initial appearance shall be held no later than seventy-two hours after a petition is filed or the next day the court is in session, whichever is sooner. If the respondent is not detained, the initial appearance shall be held as soon as practicable, and, absent good cause shown, within ten days after a petition is filed.” In analyzing the application of this section, recourse must be had to the interrelationship between arraignment and the other steps in the proceeding including reflection on the policy underlying article 3. Family Court Act § 301.1 states: "The purpose of this article is to establish procedures in accordance with due process of law (a) to determine whether a person is a juvenile delinquent and (b) to issue an appropriate order of disposition for any person who is adjudged a juvenile delinquent. In any proceeding under this article, the court shall consider the needs and best interests of the respondent as well as the need for protection of the community” (emphasis supplied).
It is clear that a warrant may issue to secure in personam jurisdiction over a respondent who refuses to obey a Family Court appearance ticket (Family Ct Act § 312.2 [2]).
Clearly a child who has acted irresponsibly by committing an act which if committed by an adult is a crime should not secure advantage by compounding that irresponsibility with the further irresponsible act of refusing to honor the obligation and commitment imposed by the Family Court appearance ticket. Nevertheless, the holding in Matter of Robert S. (192 AD2d 612 [2d Dept 1993], supra) directly conveys such advantage on the irresponsible respondent by mandating dismissal of the petition for failure by the presentment agency to have the respondent returned on the warrant or show that it
The time limitation for initial appearance is meaningful and advances the purpose of article 3 only when the court has perfected its jurisdiction, both subject matter and in personam. Since the warrant issued to secure the appearance of a respondent who has defaulted on a Family Court appearance ticket seeks to secure that jurisdiction it clearly constitutes "good cause”. To hold otherwise would place the presentment agency and the court in an untenable situation with regard to advancing the purpose of article 3 and would effectively legislate the purpose clause, Family Court Act § 301.1, out of existence under the guise of judicial pronouncement. It would have the effect of rendering the Family Court appearance ticket illusory as a viable means of gaining in personam jurisdiction over a respondent in an article 3 juvenile delinquency proceeding. Further, it might impel the executive branch of government to resort to detaining children to secure in personam jurisdiction in article 3 proceedings despite the legislative wisdom in permitting discretion in the executive branch, as to the determination of detention or release upon the issuance of a Family Court appearance ticket subsequent to seizure of the child, i.e., arrest in connection with circumstances indicating that the child committed an act which if committed by an adult is a crime. It must be noted that the warrant issued to secure the initial appearance is issued to secure jurisdiction. A warrant issued to secure the appearance of a respondent over whom the Family Court already has obtained in personam jurisdiction is issued for a different purpose. This distinction is not noted in Matter of Robert S. (192 AD2d 612 [2d Dept 1993], supra).
At the initial appearance the respondent is appointed a Law Guardian, advised of his rights, advised of the charge or charges, enters a plea, is released or detained or has the matter referred to probation for adjustment services (Family Ct Act §§ 320.2, 320.3, 320.4, 320.5, 320.6, 321.1, 321.2, 321.3). If the petition is dismissed for failure to secure in personam jurisdiction by rigid and overly strict interpretation of Family Court Act § 320.2, then the child is not answerable to the petition. Not being answerable to the petition, the merits of the petition are not reached and the purpose of article 3 is thwarted. There is no determination whether the child is a juvenile delinquent. There is no appropriate dispositional order. There is no consideration of the needs and best interests of the child. There is no consideration of the need for the protection of the community. There is the conveyance of an impression to the child that the system gives benediction to irresponsibility. The assurance of swift adjudication and safety of the community is "triggered” by the perfecting of the Family Court’s jurisdiction in article 3 proceedings. Until jurisdiction is complete there is nothing to adjudicate-in terms of the merits of the petition. Common sense dictates that it is not the presentment agency’s responsibility to insure that juveniles and their parents or persons otherwise legally responsible meet their personal obligation to appear as directed in the Family Court appearance ticket. The responsibility lies primarily with the juvenile and such parent or person.
This court has given grave and serious consideration to the implications posed by the holding in Matter of Robert S. (supra). If such holding and the jurisprudential approach to article 3 which it characterizes continues to be binding case law, this court must bend to that binding law. The remedy would then solely be with the Legislature to reflect that the initial appearance is keyed to the perfecting of jurisdiction in the Family Court and that the time limitation set forth in Family Court Act § 320.2 (1) speaks as of the date of that perfection and not before. That perfection is assured when the respondent is detained or when the respondent appears at Family Court on the appearance ticket. In any other circumstance denoting irresponsibility attributable directly to the respondent by the respondent’s wilful nonappearance as, for example, the respondent’s refusal to honor the Family Court appearance ticket or the respondent escaping from detention whether before or after jurisdiction has attached or the respondent absenting himself or herself from a scheduled court appearance the issuances of a warrant to secure the person of the respondent as one answerable to an article 3 petition must serve to toll the time limitations imposed by article 3 or, in the alternative to constitute "good cause”. It is, after all, the irresponsibility of the respondent that caused the issuance of the warrant. The presentment agency is not the respondent’s parent or guardian and, under our system of jurisprudence, is not the guarantor of the respondent’s good behavior. The respondent should and must be held accountable for his or her actions and inactions in the context of the societal and individual good sought to be achieved by implementation of article 3. Patently, where the respondent is not seen to be at fault with respect to the nonappearance, a warrant should not issue. Where the warrant is properly issued, to impose responsibility solely on the presentment agency to secure the appearance of the respondent and to ignore the continuing obligation
Accordingly respondent’s motion to dismiss the petition on
. In Matter of Robert S. (supra), the respondent was arrested on February 26, 1990, and issued an appearance ticket directing his return to court on March 23, 1990. He failed to appear. On June 15, 1990 the presentment agency filed a juvenile delinquency petition against the 16-year-old respondent. The Family Court issued a warrant for the respondent. Respondent was returned to court on the warrant on August 8, 1991, some 14 months later, for his initial appearance. He sought dismissal of the petition for failure in holding his initial appearance within 10 days after the filing of the petition (see, Family Ct Act § 320.2 [1]). The Appellate Division, Second Department, held that the issuance of the warrant did not constitute "good cause” for the failure to hold the initial appearance within 10 days after filing the petition. Viewing respondent’s allegation that he always resided at the address on the petition with implicit favor, the appellate court placed the burden for initial appearance solely on the presentment agency stating: "[T]he presentment agency did not show that it could not execute the warrant.” (Supra, at 613.) The decision is devoid of any articulation as to the responsibility of the respondent to honor the appearance ticket. Curt in its holding, this decision has enormous implications pertaining to the policy underlying and the effectiveness of article 3 juvenile delinquency proceedings.
. Perusal of the legislative history of article 3 reveals the argument in support as providing "a comprehensive set of procedures for juvenile delinquency proceedings to clarify existing procedures, reflect the increased adversarial and criminal nature of delinquency actions and to ensure swift adjudication and safety of the community” (Budget Report on Bills S-1232-A, Bill Jacket, L 1982, ch 920). Interestingly the Office of Court Administration and the Family Court Advisory and Rules Committee opposed enactment because, inter alia, the "specific time requirements within which certain notices must be given and procedures must take place (e.g. §§ 320.2, 340.1; 350.1) * * * set patently unrealistic time periods which would confront the courts with unrealizable mandates” (letter dated July 20, 1982 from Counsel to the Admin Judge, OCA, to Counsel to the Governor, Bill Jacket, L 1982, ch 920). However specific endorsement was given to, inter alia, "[T]he proposed appearance ticket procedure which would make it more likely that all of the necessary parties to the proceeding will be present at all of its critical stages” (ibid).
. The Sobie, Practice Commentary (McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 305.2, at 300) notes: "The issuance of an appearance ticket replaces the former provision that a child be released upon the 'written promise of a parent to produce the child before the family court’ [former section 724].” While the former promise was made only by the parent and not by the child, the implication of the new statute is to engage both the parent and the child in the act of responsibly meeting the obligation imposed by the appearance ticket. This action of responsibility is also enforced by the power given the court to issue a summons or warrant against a child and/or parent to appear for the initial appearance (Family Ct Act §§ 312.1, 312.2).
. The appearance ticket’s return date is delineated in Family Court Act § 307.1 (2). "If the charges include a designated felony, the respondent and his parent must appear within 72 hours [excluding Saturdays, Sundays, or
. The Practice Commentary to Family Court Act § 307.2 notes that upon referral of the matter from the probation service, the appropriate presentment agency may "take any action [it] deems appropriate. Examples include the filing of a petition, the commencement of an investigation, or a determination not to proceed” (Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 307.2, at 312).
. The need to secure in personam jurisdiction over the respondent is evident. In Matter of Post (280 App Div 268 [3d Dept 1952]) it was held in a delinquency proceeding that the failure to issue a summons deprived the trial court of jurisdiction over the parties and its order committing the child was therefore not sustainable. The defect in in personam jurisdiction was not waived because although the parents and the child appeared, they made no knowing voluntary appearance, i.e., never consented to the court’s jurisdiction.
. Family Court Act § 312.2 states:
"The court may issue a warrant directing that the respondent personally or other person legally responsible for his care or, if such legally responsible person is not available, a person with whom he resides, be brought before the court, when a petition has been filed and it appears that:
"1. a summons cannot be served; or
"3. the respondent or other person is likely to leave the jurisdiction; or
"4. a summons, in the court’s opinion, would be ineffectual; or
"5. a respondent has failed to appear” (emphasis supplied).
. See Matter of Terrence T. (155 Misc 2d 184) for analysis promoting the conclusion that there should be no mandatory per se rule of dismissal for violation of time limitations respecting a dispositional hearing. This analysis represents a jurisprudential approach based on common sense and the premise that article 3 must remain a vital response to advance societal and individual good in the context of juvenile delinquency. However, appellate case law emanating from the formalistic analysis embraced in the majority holding in Matter of Randy K. (77 NY2d 398 [1991], supra) has resulted in the situation that a respondent who has been found guilty of an act which if committed by an adult is a crime, will have the petition dismissed at the dispositional stage provided the respondent absconds, that is acts irresponsibly by failing to appear at the dispositional phase, and the presentment agency and the court fail to observe the ritualistic calendaring of the proceeding every 10 days to continue the outstanding warrant for "good cause” shown (Matter of Faruq F., 186 AD2d 799 [2d Dept 1992]; Matter of Roshon P., 182 AD2d 346 [2d Dept 1992]). A record is made as to "good cause” or "special circumstances” at the time of the issuance of the warrant and at the return on the warrant. To mandate that the proceeding be continually adjourned for 10-day warrant reports in the absence of the
. It was noted by the president of the Patrolmen’s Benevolent Association in his letter dated July 25, 1982 to the Executive Chamber (Bill Jacket, L 1982, ch 920) urging adoption of article 3: "we fully understand that juveniles must be treated differently from adults as far as prosecution and incarceration are concerned, but, when a juvenile is threatening the continued safety of innocent victims the criminal justice system and the specialized courts therein must be able to respond lest we fail to protect the rights of the victim with the same vigor we protect the rights of the perpetrator, adult or juvenile”.
. The critical jurisprudential holding implicating the reward of dismissal to a respondent who has acted irresponsibly in failing to appear is Matter of Randy K. (177 NY2d 398 [1991], supra), a four to three decision. The dissent authorized by then Judge, now Chief Judge Kaye, is articulate with the advancement of the purpose underlying article 3. The majority opinion is redolent of a formalistic approach to application of the time limitations in article 3. The footnotes to the majority opinion are elucidating. They emphasize the formalism. No account is made of the irresponsibility of a defaulting respondent under article 3. The lack of account is justified by, in effect, holding that the issuance of a warrant for a defaulting respondent does not toll the time limitations of the different phases of the article 3 proceeding, does not constitute "good cause” or "special circumstances”. The majority opinion states (at 404): "Providing for an automatic retroactive adjournment of unlimited duration based solely upon a failure of a juvenile to appear for a hearing and the issuance of a bench warrant would in no way advance the aim of ensuring a swift and certain determination of the proceeding and supervision of the juvenile”. The rigid formalistic jurisprudential approach of the majority accomplishes this result by enabling wilfully nonappearing respondents to avoid answering to an article 3 petition by securing dismissal of the petition. This is certainly swift but is it justice? The majority opinion portrays a cavalier lack of faith in the presentment agency and indeed in the Family Court, to responsibly carry out their respective obligations to society including society’s children in juvenile delinquency proceedings. The need for protection of the community, one of the mandated considerations under the purpose clause of the statute (Family Ct Act §301.1) is not advanced by refusal to hold a wilfully nonappearing respondent accountable, i.e., responsible. The hubris lies in the refusal to acknowledge responsibility on the part of the juvenile in the equation; in arguing that the refusal to permit warrants to secure the appearance of the wilfully defaulting juvenile to constitute "good cause” or "special circumstances” or to toll the time limitations is not a form of legislating while viewing the contrary as a form of legislating. To this court, seeking to advance the purpose of article 3 at the trial level, the jurisprudential philosophy underlying the majority holding renders hollow the concern expressed for an overworked Family Court system (at 404).
The key to the majority holding in Matter of Randy K. (supra) is its view that the respondent is not rewarded for having chosen voluntarily not to appear, but that the statute was not rigidly complied with, which prompts the dismissal. Of course, the dismissal "rewards” the wilfully defaulting respondent. Of course rigid compliance with the statute where the respondent has acted irresponsibly by wilfully not appearing is meaningless.
Without the person of the respondent being before the court, the purpose
Thus Matter of Randy K. (supra) becomes the grandparent of Matter of Robert S. (supra). Ironically, the respondent who acts responsibly by responding to the Family Court appearance ticket and attending scheduled court proceedings does not receive the benefit of the formalistic jurisprudential approach delineated by the holdings in Matter of Randy K. (supra), Matter of Robert S. (supra), Matter of Faruq F. (186 AD2d 799 [2d Dept 1992], supra), Matter of Roshon P. (182 AD2d 346 [2d Dept 1992], supra) and Matter of Jose R. (194 AD2d 310 [1st Dept 1993]). While these holdings on occasion acknowledge the overburdened Trial Calendars of the Family Court, there is no hesitancy in further burdening those calendars by imposition of this formalistic approach. For example, it is this trial court’s experience that warrant reports given by the presentment agency every 10 days where respondents have absconded at the dispositional phase of the article 3 proceeding are, in the cumulative, imposing a real time burden depriving other litigants and their pressing concerns of that valuable trial time. These warrant reports invariably demonstrate that the presentment agency is doing what is reasonable, not extraordinary, in procuring the return of the respondent. Since the respondent is not before the court, the warrant continues, another 10-day adjournment for further report occurs, and the proceeding remains in stasis. If the presentment agency fails to request the 10-day adjournment and/or the court fails to schedule such adjournment, the respondent, who has already been found guilty of an act which if committed by an adult is a crime, receives the "reward” of dismissal of the petition for his wilful nonappearance. Such is the judicial interpretation of the legislative will mandated by this formalistic jurisprudential approach. In the name of expediency, of swift adjudication, there is no service offered to the child, there is no accountability requested of the child for the child’s irresponsibility, there is no concern for the protection of the community. This is not due process it is abnegation.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.