§ 1039 — Adjournment in contemplation of dismissal

New York § 1039

• Jurisdiction: New York
• Law FCT: Family Court Act
• Part 3: Preliminary Procedure
• Art. 10: Child Protective Proceedings

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§ 1039. Adjournment in contemplation of dismissal. (a) Prior to or\nupon a fact-finding hearing, the court may upon a motion by the\npetitioner with the consent of the respondent and the child's attorney\nor upon its own motion with the consent of the petitioner, the\nrespondent and the child's attorney, order that the proceeding be\n"adjourned in contemplation of dismissal". Under no circumstances shall\nthe court order any party to consent to an order under this section. The\ncourt may make such order only after it has apprised the respondent of\nthe provisions of this section and it is satisfied that the respondent\nunderstands the effect of such provisions.\n (b) An adjournment in contemplation of dismissal is an adjournment of\nthe proceeding for a period not to exceed one year with a view to\nultimate dismissal of the petition in furtherance of justice. Upon the\nconsent of the petitioner, the respondent and the child's attorney, the\ncourt may issue an order extending such period for such time and upon\nsuch conditions as may be agreeable to the parties.\n (c) Such order may include terms and conditions agreeable to the\nparties and to the court, provided that such terms and conditions shall\ninclude a requirement that the child and the respondent be under the\nsupervision of a child protective agency during the adjournment period.\nIn any order issued pursuant to this section, such agency shall be\ndirected to make a progress report to the court, the parties and the\nchild's attorney on the implementation of such order, no later than\nninety days after the issuance of such order, unless the court\ndetermines that the facts and circumstances of the case do not require\nsuch reports to be made. The child protective agency shall make further\nreports to the court, the parties and the child's attorney in such\nmanner and at such times as the court may direct.\n (d) Upon application of the respondent, the petitioner, the child's\nattorney or upon the court's own motion, made at any time during the\nduration of the order, if the child protective agency has failed\nsubstantially to provide the respondent with adequate supervision or to\nobserve the terms and conditions of the order, the court may direct the\nchild protective agency to observe such terms and conditions and provide\nadequate supervision or may make any order authorized pursuant to\nsection two hundred fifty-five of this act.\n (e) Upon application of the petitioner or the child's attorney or upon\nthe court's own motion, made at any time during the duration of the\norder, the court may restore the matter to the calendar, if the court\nfinds after a hearing that the respondent has failed substantially to\nobserve the terms and conditions of the order or to cooperate with the\nsupervising child protective agency. In such event, unless the parties\nconsent to an order pursuant to section one thousand fifty-one of this\nact or unless the petition is dismissed upon the consent of the\npetitioner, the court shall thereupon proceed to a fact-finding hearing\nunder this article no later than sixty days after such application\nunless such period is extended by the court for good cause shown.\n (f) If the proceeding is not so restored to the calendar, the petition\nis, at the expiration of the adjournment period, deemed to have been\ndismissed by the court in furtherance of justice unless an application\nis pending pursuant to subdivision (e) of this section. If such\napplication is granted the petition shall not be dismissed and shall\nproceed in accordance with the provisions of such subdivision (e).\n (g) Notwithstanding the provisions of this section, the court, may, at\nany time prior to dismissal of the petition pursuant to subdivision (f),\nissue an order authorized pursuant to section one thousand twenty-seven.\n