In re Amy Beth G.

NYC Family Court

In re Amy Beth G.

136 Misc. 2d 85, 517 N.Y.S.2d 848, 1987 N.Y. Misc. LEXIS 2385

New York City Family Court·Decided January 26, 1987·Published·Cited by 2 cases

Opinion

OPINION OF THE COURT

Minna R. Buck, J.

On November 10, 1986, the Department of Social Services (the Department) filed a petition alleging respondent had violated a previous court order placing her in foster care; on November 25, 1986, the Department filed an order to show cause requesting that foster care be vacated and that respondent be re-placed at an appropriate facility. After a hearing and for good cause shown, the court vacated respondent’s placement with the Department effective November 4, 1986 and placed respondent on probation with certain conditions for 12 months beginning January 6, 1987. Respondent’s attorney objected to the 12-month period contending that since [86]*86respondent will be 18 years old in July 1987, and since no placement may be continued beyond respondent’s 18th birthday without her consent (Family Ct Act § 756 [c]), similarly no period of probation beyond that time may be imposed without respondent’s consent. The court denied the motion on the grounds that respondent’s consent is not required.

A petition alleging a minor is a person in need of supervision may be filed up to a child’s 18th birthday. (Family Ct Act § 714; Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 714, at 28.) Of the alternative dispositions in article 7 proceedings (Family Ct Act § 754), the child’s consent is necessary after the 18th birthday only when placement is ordered (Family Ct Act § 756 [c]). There is no such requirement when the disposition is either suspended judgment (Family Ct Act § 755) or probation (§ 757), nor for restitution (§ 758-a) which can be a condition of any of these three dispositions.

It is well established that the Legislature’s failure to include a provision within a statute is to be construed as indicating the exclusion was intentional (McKinney’s Cons Laws of NY, Book 1, Statutes § 74; Pajak v Pajak, 56 NY2d 394; Virginia E.E. v Alberto S.P., 108 Misc 2d 565). Thus, respondent’s consent to a disposition of probation extending beyond her 18th birthday is not required.

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OPINION OF THE COURT

Minna R. Buck, J.

On November 10, 1986, the Department of Social Services (the Department) filed a petition alleging respondent had violated a previous court order placing her in foster care; on November 25, 1986, the Department filed an order to show cause requesting that foster care be vacated and that respondent be re-placed at an appropriate facility. After a hearing and for good cause shown, the court vacated respondent’s placement with the Department effective November 4, 1986 and placed respondent on probation with certain conditions for 12 months beginning January 6, 1987. Respondent’s attorney objected to the 12-month period contending that since [86]*86respondent will be 18 years old in July 1987, and since no placement may be continued beyond respondent’s 18th birthday without her consent (Family Ct Act § 756 [c]), similarly no period of probation beyond that time may be imposed without respondent’s consent. The court denied the motion on the grounds that respondent’s consent is not required.

A petition alleging a minor is a person in need of supervision may be filed up to a child’s 18th birthday. (Family Ct Act § 714; Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 714, at 28.) Of the alternative dispositions in article 7 proceedings (Family Ct Act § 754), the child’s consent is necessary after the 18th birthday only when placement is ordered (Family Ct Act § 756 [c]). There is no such requirement when the disposition is either suspended judgment (Family Ct Act § 755) or probation (§ 757), nor for restitution (§ 758-a) which can be a condition of any of these three dispositions.

It is well established that the Legislature’s failure to include a provision within a statute is to be construed as indicating the exclusion was intentional (McKinney’s Cons Laws of NY, Book 1, Statutes § 74; Pajak v Pajak, 56 NY2d 394; Virginia E.E. v Alberto S.P., 108 Misc 2d 565). Thus, respondent’s consent to a disposition of probation extending beyond her 18th birthday is not required.

In re Amy Beth G., 136 Misc. 2d 85, 517 N.Y.S.2d 848, 1987 N.Y. Misc. LEXIS 2385 (N.Y. Super. Ct. 1987).

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Opinion

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