Matter of Terri W. v Nicholas O.

[*1] Matter of Terri W. v Nicholas O. 2009 NY Slip Op 50071(U) [22 Misc 3d 1109(A)] Decided on January 15, 2009 Family Court, Clinton County Lawliss, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 15, 2009
Family Court, Clinton County

In the Matter of a PINS Proceeding Terri W., Petitioner,

against

Nicholas O., Respondent.



S-01857-08



Allan B. Cruikshank, Jr., Plattsburgh, for Petitioner, Terri W.

Larry Kudrle, Plattsburgh, Law Guardian for subject child, Nicholas O.

Timothy J. Lawliss, J.

On December 1, 2008, Petitioner, Terri "W", filed a Petition alleging that Respondent is a Person in Need of Supervision [PINS] pursuant to Article 7 of the Family Court Act. On December 11, 2008, the law guardian filed a Notice of Motion with supporting Affirmation seeking the dismissal of the petition on the basis that the notification attached to the petition fails to comply with several of the requirements set forth in FCA §735.

The law guardian correctly asserts that a PINS petition must have an attached notification describing detailed diligent attempts made to divert the case and the diligent efforts to engage the youth and his family in appropriately targeted community based services. FCA §§735(g)(i) requires the designated lead agency to promptly give written notice to potential petitioners which, inter alia, must "detail the diligent attempts made to divert the case if a determination has been made that there is no substantial likelihood that the youth will benefit from further attempts." The law guardian correctly asserts that FCA §735(d) provides that the "[diversion services shall include documented diligent attempts to engage the youth and his or her family in appropriately targeted community-based services..."

The law guardian is also correct that FCA §735(g)(ii) states that the "... clerk of the court shall accept a petition for filing only if it has attached thereto the following: (A) if the potential petitioner is the parent..., a notice from the designated lead agency indicating there is no bar to the filing of the petition as the potential petitioner consented to and actively participated in [*2]diversion services...".

The Court has reviewed the Petition and the two forms attached to the petition titled "Notification to Potential Petitioner PINS Intake Complaint Status,"[FN1] and finds that neither attached notification complied with FCA §§735(g)(i) & (ii). The notification forms themselves contain a series of options to be checked when applicable. In this case, the boxes checked clearly do not satisfy the requirements of FCA § 735(g). Notably, there are no options on the form which would satisfy the requirements of FCA § 735(g).

Failure to comply with FCA § 735(g) has been found to be a jurisdictional defect requiring the dismissal of a petition, (see, Matter of Leslie H., 47 AD3d 716 [2d Dept, 2008]). Nevertheless, even when the attached forms fail to comply with FCA § 735(g), the petition may still be prosecuted if, when viewed as a whole, the petition and its attachments comply with the substantive requirements of FCA § 735 (see, Matter of Sonya LL, 53 AD3d 727 [3d Dept 2008]). In the instant matter, even after the petition itself is reviewed, it is clear that neither the petition nor the attached notifications contain the required information and thus, the petition is jurisdictionally defective and must be dismissed.

In light of this decision, the Court will not address the other issues raised by the Law Guardian in his motion to dismiss.

IT IS, NOW, THEREFORE,

ORDERED, that Respondent, Nicholas "O"'s December 11, 2008 motion to dismiss petition is hereby GRANTED; and it is further

ORDERED, that Terri "W"'s December 1, 2008 Petition (bearing docket no.: S-01857-08) is hereby DISMISSED; and it is further

ORDERED, all parties shall take notice that: pursuant to section 1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in court, thirty-five days from the mailing of the order to the appellant by the clerk of the court, or thirty days after service by a party or law guardian upon the appellant, whichever is earliest.

Dated: January 15, 2009

E N T E R

Honorable Timothy J. Lawliss

Family Court Judge Footnotes

Footnote 1:It appears that two Notification forms were attached as one indicated that a preliminary review of the case was commenced on April 19, 2006 and a second review was commenced on June 30, 2006. Both indicated that adjustment attempts were terminated on November 1, 2007.