Matter of Ronald B.

[*1] Matter of Ronald B. 2009 NY Slip Op 51460(U) [24 Misc 3d 1215(A)] Decided on July 10, 2009 Family Court, Queens County Hunt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2009
Family Court, Queens County

In the Matter of Ronald B., A Person Alleged to be a Juvenile Delinquent, Respondent.



D-11300-07/09B



Michael A. Cardozo, Corporation Counsel (Rachel Glantz of counsel), New York City, for Presentment Agency and Department of Probation. Angela T. Starr (Massapequa Park), Law Guardian.

John M. Hunt, J.

By petition filed pursuant to Family Court Act §360.2 on May 26, 2009 the New York City Department of Probation alleges that the respondent, Ronald B., has violated one or more of the conditions of this Court's order of disposition dated May 7, 2008 which places him under the supervision of the Department of Supervision for a period of 18 months. The Department of Probation seeks a determination that respondent has violated his probation, an order revoking the order of probation, and the entry of a new order of disposition by the Court.I

On June 6, 2007 a juvenile delinquency petition was filed against Ronald B. pursuant to Family Court Act §310.1 alleging that the respondent committed acts which, were he an adult, would constitute the crimes of Intimidating a Victim or a Witness in the Second and Third Degrees, Witness Tampering in the Fourth Degree, Assault in the Third Degree, Attempted Assault in the Third Degree and Menacing in the Third Degree. Upon the conclusion of the initial appearance on June 6, 2007, respondent entered an admission to having committed an act which would constitute the crime of Intimidating a Victim or a Witness in the Third Degree, a class E felony defined by Penal Law §215.15 (1). A dispositional hearing was conducted on August 2, 2007 at which reports were received from both the Department of Probation and the Family Court Mental Health Services Clinic. At the conclusion of the hearing respondent was adjudicated a juvenile delinquent, based upon the Court's determination that he required supervision and treatment (Fam. Ct. Act §352.1 [1]). Respondent was therefore placed under the supervision of the Department of Probation for a period of 18 months and in furtherance of that order, he was directed to observe specific conditions including that: he complete 300 hours of community service, that he meet with his assigned Probation Officer as directed, that he stay away from the victim, that he obey a curfew and the lawful commands of his parent, that he attend school regularly with no disciplinary infractions, that he not commit further criminal or [*2]delinquent acts, and that he cooperate with all referrals for services to which he was referred by the Department of Probation.

On February 8, 2009 the Department of Probation filed a petition pursuant to Family Court Act §360.2, alleging that respondent had violated one or more of the conditions of the order of probation. Specifically, the petition alleged that respondent had failed to comply with the condition requiring regular school attendance. On March 3, 2008 respondent appeared before the Court and admitted that he failed to attend school regularly. The Court entered a finding that respondent had violated the August 7, 2007 order of probation and updated reports from the Department of Probation and the Mental Health Services Clinic were ordered. On May 7, 2008 the August 2, 2007 order of probation was revoked (Fam. Ct. Act §360.3 [6]), and a new order of disposition was entered placing respondent on probation for a period of 18 months with the direction that he be placed under the direct supervision of the Juvenile Justice Initiative ("JJI") program. The conditions of the August 2, 2007 order of probation were also specifically incorporated into the May 7, 2008 order of probation.

The current violation petition was filed by the Department of Probation on May 26, 2009 and the petition alleges that respondent had violated the conditions of the May 7, 2008 order of probation in that he was arrested for crimes which included Robbery in the First Degree on February 11, 2009, that he was convicted (by plea) of committing the crime of Robbery in the Third Degree on April 24, 2009, and that the Supreme Court sentenced him to a term of imprisonment of 1 to 3 years with the Department of Correctional Services on May 13, 2009. Appended to the violation petition is a Certificate of Disposition of the Supreme Court, Queens County, dated May 14, 2009 which recites respondent's plea of guilty and the sentence imposed by the Supreme Court. The contents of the Certificate of Disposition constitute prima facie proof of respondent's violation of the May 7, 2008 order (Criminal Procedure Law §60.60 [1] [a]).

II

The juvenile delinquency statute authorizes the imposition of a period of probation supervision not exceeding twenty-four months as a dispositional alternative for a child who is adjudicated to be a juvenile delinquent and found to be in need of treatment and supervision (Fam. Ct. Act §§352.1 [1], 352.2 [1] [b], 353.2 [1], [6]). Thus, upon consideration of "the nature and circumstances of the crime and the history, character and condition of the respondent" (Fam. Ct. Act §353.2 [1]), the Court may order a period of probation supervision where the Court determines that placement of the respondent is not necessary and that respondent's needs and best interests, as well as the need to protect the community, would be met by providing the respondent with "guidance, training or other assistance which can be effectively administered through probation" (Fam. Ct. Act §353.2 [1] [a], [b]; see, Matter of William K., 14 AD3d 513 [2005]; Matter of Marlon B., 51 AD3d 436, 437 [2008]; Matter of Jamel G., 51 AD3d 918, 920 [2008]; [*3]Matter of Javed K., 57 AD3d 899, 900 [2008]).[FN1]

Where an order of disposition imposes a period of supervision by the Department of Probation, specific conditions of behavior may be imposed upon the respondent by the Court (Fam. Ct. Act §353.2 [2], [3]). Those conditions may, for example, require that the respondent: (i) attend school regularly and obey all school rules and regulations; (ii) obey all reasonable and lawful commands of a parent or guardian; (iii) remain away from designated people or places; (iv) commit no further criminal or delinquent acts; (v) cooperate with referrals for psychological and social services made by the Department of Probation; (vi) make restitution or perform community service where the respondent is over 10 years of age; (vii) attend an alcohol awareness program where the use of alcohol may have contributed to the respondent's delinquency; (viii) meet with a Probation Officer as directed by the Department of Probation; and (ix) comply with any other reasonable conditions which the Court finds to be necessary or appropriate to ameliorate the delinquent behavior which resulted in the filing of the petition or to prevent placement of the child into foster care (e.g., Matter of Brandon W., 28 AD3d 783, 784-785 [2006], lv. denied 7 NY3d 707 [2006]; Matter of Sammie C., 27 AD3d 382, 383 [2006]).

A

An order of disposition which places an adjudicated juvenile delinquent on probation does not necessarily signify the conclusion of the proceeding. A juvenile delinquent who is placed on probation remains under the legal jurisdiction of the Family Court for the duration of the period of probation (Fam. Ct. Act §360.1 [1]; Matter of Markim Q., 7 NY3d 405, 410 [2006]; Matter of Carliesha C., 17 AD3d 1057 [2005]), just as a criminal defendant placed on probation remains under the jurisdiction of the sentencing court (see, Criminal Procedure Law §410.50 (1); People v. Rodney E., 77 NY2d 672, 675 [1991]; People v. Hale, 93 NY2d 454, 461 [1999]).

During the period of probation supervision, the Department of Probation is authorized to [*4]file a petition of violation where there is reasonable cause to believe that the juvenile has violated the order (Fam. Ct. Act §360.2 [1]). A petition alleging a violation of an order of probation must be verified and it must "stipulate the condition or conditions of the order violated and a reasonable description of the time, place and manner in which the violation occurred" (Fam. Ct. Act §360.2 [2]; e.g., Matter of Carlos MM., 238 AD2d 707, 708 [1997]; Matter of Stephen C., 28 AD3d 656 [2008]).[FN2]

Family Court Act §360.3 sets forth the procedures which apply to the adjudication of a violation petition. When the respondent first appears before the Court upon the violation petition, the Court must inform the juvenile of the nature of the proceeding, advise the juvenile of the right to be represented by counsel at all stages of the violation proceeding, and inform the juvenile of the allegations in the petition. A copy of the petition must be provided to the juvenile and to his or her counsel (Fam. Ct. Act §360.3 [2], [4]). After advising the juvenile of his or her rights and the appointment of a Law Guardian if necessary, the Court may inquire whether the child "wishes to make any statement with respect to the violation" (Fam. Ct. Act §360.3 [2]). If the juvenile wishes to make a statement concerning the violation, "the court may accept it and base its decision thereon" subject to an allocution of the juvenile and his or her parent inaccordance with Family Court Act §321.3 (Fam. Ct. Act §360.3 [2]; e.g., Matter of John II., 31 AD3d 842, 842-843 [2006]; Matter of William VV., 42 AD3d 700, 701 [2007]). If the juvenile declines to make any statement or if for some reason the Court does not accept a proffered statement, then a hearing is conducted at which the Presentment Agency offers evidence in support of the petition (Fam. Ct. Act §360.3 [5]), and at which the respondent has the right to conduct cross-examination and the right to call witnesses on his or her own behalf (Fam. Ct. Act §360.3 [3]). If the Court finds that respondent has violated one or more conditions of the order of probation, a finding of violation is made (Fam. Ct. Act §360.3 [1]; see, Matter of Stephen C., 28 AD3d 656 [2006]; Matter of Justin D., 52 AD3d 512 [2008]).

In contrast to its Criminal Procedure Law analogue which specifies that violations mustbe established by a preponderance of the evidence (Criminal Procedure Law §410.70 [3]), the Family Court Act is silent in that regard (Matter of Amanda RR., 230 AD2d 451, 453 [1997]; Matter of Julies R., 250 AD2d 855, 856 [1998]). However, Family Courts have long applied the preponderance of the evidence standard, as proceedings upon a violation petition are deemedto be "dispositional in nature and not part of the adjudicatory process" (Matter of Amanda RR. at 453; see, Matter of Julies R. at 856; Matter of Raul P., 292 AD2d 245, 246 [2002], lv. denied 98 NY2d 607 [2002]; Matter of Devon AA., 7 AD3d 845, 846 [2004]; Matter of Roland H., 30 [*5]AD3d 225, 226 [2006]; Matter of Jerwin R., 46 AD3d 334 [2007], lv. denied 10 NY3d 711 [2008]; Matter of Joshua M., 59 AD3d 1073 [2009]).[FN3]

Once a violation of probation is established after a hearing or by admission of the respondent "the court may revoke, continue or modify the order of probation." The Court may conduct a further dispositional hearing and require the submission of updated reports concerning the juvenile. If the Court revokes the order of probation at the conclusion of the proceedings, "it shall order a different disposition pursuant to section 352.2" (Fam. Ct. Act §360.3 [6]), which may consist of any dispositional order authorized by Family Court Act §352.2, such as a conditional discharge, probation, placement with the Office of Children and Family Services ("OCFS") or with the Department of Social Services, placement with OCFS with a direction that the juvenile be temporarily transferred to either the Office of Mental Health or Office of Mental Retardation and Developmental Disabilities for treatment, and in a case where the respondent has committed a designated felony act as defined by Family Court Act §301.2 (8), a restrictive placement with OCFS.[FN4]

III

The violation petition filed against the respondent states that he was born on August 1, 1991 and is now 17½ years old. The petition alleges that respondent violated a condition of the May 7, 2008 order of probation based upon his arrest and subsequent conviction in the Supreme Court for the crime of Robbery in the Third Degree (Penal Law §160.05), a class D felony, for which the Supreme Court sentenced him to a term of imprisonment of 1 to 3 years on May 13, 2009 (Penal Law §70.00 [2] [d]). According to the Superior Court Information filed against respondent in the Supreme Court (Criminal Procedure Law §195.40),[FN5] he was charged with committing the [*6]crimes of Burglary in the First and Second Degrees, Robbery in the First and Second Degrees and Criminal Possession of a Weapon in the Second and Fourth Degrees. The accusatory instrument further states that respondent and an accomplice committed a "push in robbery'" in Queens County on January 27, 2009. It was alleged that respondent and the accomplice forced their way into an apartment while wearing "tee shirts wrapped on their faces. . . and displayed handguns." They then proceeded to threaten the victim with the handguns and ordered her to the floor and proceeded to steal property from the residence and flee the scene.

The Certificate of Conviction issued by the Supreme Court and submitted by the Department of Probation is presumptive evidence of respondent's conviction and sentence for thecrime of Robbery in the Third Degree (Criminal Procedure Law §60.60 [1]), and the contents ofthe Certificate of Conviction also constitutes prima facie evidence of the violation of this Court's May 7, 2008 order of probation. According to the Department of Correctional Services, respondent is presently incarcerated at the Lakeview Shock Correctional Facility where he is serving his sentence of 1 to 3 years. The Department also reports that respondent has been incarcerated at Lakeview since May 28, 2009, that his earliest possible release date to parole supervision is February 11, 2010, and that the maximum expiration date of his sentence is February 11, 2012.

The rehabilitation and treatment of juvenile delinquents is the goal of the juvenile justice system (Matter of Quinton A., 49 NY2d 328, 334-335 [1980]; Matter of Carmelo E., 57 NY2d 431, 435 [1982]; Green v. Montgomery, 95 NY2d 693, 697-698 [2001]; Sebastian v. State of New York, 250 AD2d 260, 262 [1998], aff'd 93 NY2d 790 [1999]), and "[t]he overriding intent of the juvenile delinquency statute is to empower Family Court to intervene and positively impact the lives of troubled young people while protecting the public" (Matter of Robert J., 2NY3d 339, 346 [2004]; see, Matter of Jose R., 83 NY3d 388, 394-395 [1994]; Matter of Benjamin L., 92 NY2d 660, 670 [1999]; Matter of Jermaine G., 38 AD3d 105, 111 [2007]).While the Family Court may order the initial placement of an adjudicated juveniledelinquent with OCFS upon a violation of probation, even where the period of such placementwould extend beyond the juvenile's 18th birthday (Matter of Robert J., at 347; Matter of Jude F., 291 AD2d 165 [2002]; see also, Matter of Matthew L., ___ AD3d ___, 2009 NY Slip Op 05551 [June 30, 2009]), there is no precedent for a placement of a juvenile delinquent who has been incarcerated and is serving a prison sentence for criminal acts which also constitute the basis upon which a violation of probation determination is being sought.

In this case, respondent's incarceration essentially places him beyond the Family Court's jurisdiction. While there is no legal impediment to the entry of further Family Court orders based upon the violation of the order, such orders would be of no practical utility since the respondent is physically unable to comply with any orders entered by this Court, the Department of Probation has no ability to supervise him, and the Court cannot supersede the Supreme Court'ssentence by placing respondent in OCFS custody. There is no reason for this Court to enter such a nugatory and unenforceable order (see, Matter of Rose [Clancy] v. Moody, 83 NY2d 65, 72 [1993]).

Moreover, were this Court to order respondent placed with OCFS , there would be a [*7]jurisdictional conflict in that the juvenile would be simultaneously committed to the legal custody of two different state agencies, and such a placement would create the further anomaly of requiring the Commissioner of OCFS to engage in permanency planning for a person who is incarcerated in a state correctional facility (see, Fam. Ct. Act §§353.3 [7] [c], 355.5; 22 NYCRR §205.28 [d]; Matter of Robin G., 20 Misc 3d 328 [2008]). There is nothing in the Adoption and Safe Families Act which would suggest that its provisions relating to permanency planning for foster children, which in New York includes most adjudicated juvenile delinquents who are placed away from home, shall apply to inmates of a state correctional facility. A state prison is simply not a "foster home" or an OCFS "non-secure facility" for the purposes of Family Court Act §355.5. The criminal behavior of the juvenile, for which the Supreme Court did not grant him youthful offender status (see, Criminal Procedure Law §720.20 [1] [a]), indicates that for all practical purposes he has exhausted the Family Court's ability to act in order to provide rehabilitation and treatment within the scope of the juvenile delinquency statute. Respondent is now in the custody of the Commissioner of the Department Correctional Services and subject to extensive rules of the Department which govern the care, custody and rehabilitation of inmates in state correctional facilities. Thus, the Department of Correctional Services is best situated, andlegally responsible for, providing for the juvenile's needs for treatment and services in order to rehabilitate him so as to facilitate his eventual return to the community.

Although it is likely that respondent will be released from prison prior to his 21st birthday, the maximum age at which a child may remain in OCFS custody (Executive Law §507-a (2);Matter of Robert J. at 344), upon his release respondent will be subject to supervision by the state's Division of Parole until February 11, 2012, the maximum expiration date of his sentence. While under parole supervision, respondent will be subject to supervision by a parole officer as well as the rules of the Division of Parole, including any conditions or special conditions imposed by the Division (Executive Law §259-c [2]; 22 NYCRR §8003.2; M.G. v. Division of Parole, 236 AD2d 163, 167 [1997], lv. denied 91 NY2d 814 [1998]; Billups v. Division of Parole, 18 AD3d 1085 [2005]; Hyman v. Division of Parole, 22 AD3d 224, 225 [2005]; Ariola v. Division of Parole, 62 AD3d 1228 [2009]). He will also be subject to parole revocation provisions commenced by the Division of Parole and possible further incarceration in the event that he violates the terms of his release (see, People ex rel. Maggio v. Casscles, 28 NY2d 415, 418 [1971]; Matter of Bolden v. Dennison, 28 AD3d 1234, 1235 [2006], lv. denied 7 NY3d 705 [2006]; Matter of Mack v. Abraham, 61 AD3d 1222 [2009]).

IV

Although the present violation petition was not filed by the Department of Probation untilafter respondent had been arrested, convicted of a felony and sentenced to state prison, it ispossible that these unfortunate circumstances might have been avoided.

As the procedural history of this case suggests, where the Court is not faced with a [*8]destitute child who has committed a criminal act (e.g., children who are victimized by prostitution), or a child who is severely mentally ill or extremely violent, the institutional placement of a juvenile delinquent is usually a last resort, not a first impulse. Because the Family Court Act requires that the Court utilize the "least restrictive alternative" analysis in fashioning its order of disposition (Matter of Melissa VV., 26 AD3d 682, 683 [2006]; Matter of Brittenie K., 50 AD3d 1203, 1206 [2008]; Matter of Austin Q., ___ AD3d ___, 879 NYS2d 828, 829 [2009]), judges will often initially utilize a community-based disposition such as a conditional dischargeor probation supervision rather than institutional placement, except where doing so will endanger the well-being of the juvenile or the safety of the community.

It was for that reason that the Court entered a new order of probation supervision in thiscase, although respondent had violated the first order of probation, and why respondent wasdirected to participate in the Multisystemic Therapy ("MST") program of the Juvenile Justice Initiative which is administered by New York City Administration for Children's Services (now known as "NYC Children's Services"). The Juvenile Justice Initiative ("JJI") is based upon the therapeutic or preventive model of criminal justice which has resulted in the creation of "mental health courts" and other "problem solving courts" in which judges assume an active post-sentencing role in monitoring an offender's compliance with referrals for mental health, substance or alcohol abuse and social service treatment. It has been observed that "[p]roblem-solving courts employ the institution of the judiciary to solve socio-legal or public policy problems through the courts. These alternative' courts have found a toehold where existing social or legal institutions have proven woefully inadequate or have failed altogether" (Casey, When Good Intentions Are Not Enough: Problem-Solving Courts and the Impending Crisis of Legitimacy, 57 So. Meth. L. Rev. 1459, 1462 (2004) [hereinafter "Casey"]). Without expressingan opinion as to Professor Casey's theory that problem solving courts replace failed social orlegal institutions, it would appear that the therapeutic or preventive model is particularly appropriate and in fact, has long been utilized at the dispositional phase in juvenile delinquency proceedings. The implementation of JJI/MST (and the earlier implementation of the Enhanced Supervision Program of the New York City Department of Probation) constitutes an expansion of traditional probation supervision with the expectation that more intensive intervention will produce greater compliance and reduce the need to institutionalize juvenile delinquents.

"Th[e] preventive model shifts focus from evaluating blameworthiness to changing the future behavior of defendants in order to avoid recidivism. Mental health courts try to treat the mental illness that may have contributed to the criminal act" (S. Talesh, Mental Health Court Judges as Dynamic Risk Managers: A New Conceptualization of the Role of Judges, 57 De Paul L. Rev. 93, 110-111 [2007]).[FN6] Judges who preside in a mental health court setting "transform [*9]their role into a hybrid between a social worker and probation officer. Mental health court judges act as chief administrators for social service networks with authority to make initial assessments and implement treatment plans. Judges also monitor offenders and offer rewards and sanctions" (id. at 124; see, Casey at 1459-1460).

Multisystemic Therapy (or MST) "is a treatment alternative with proven results ineffectively rehabilitating delinquent youth. It was originally developed in the 1970s as an alternative to ineffective and costly mental health treatment for juveniles. However, since itscreation, MST has been used and tested in numerous studies that have analyzed its effectivenessin correcting behavioral issues in juvenile offenders" (Upchurch, Note, Putting the Focus Back on the Family: Using Multisystemic Therapy and Regionalized Incarceration as Alternatives to the Texas Youth Commission, 15 Tex. Wes. L. Rev. 161, 170-171 [2008]).[FN7] Most importantly, MST focuses on the social environment in which a juvenile lives "in order to develop andcustomize a problem-specific intervention plan to identify and attenuate risk factors and correctbehavioral problems" (id. at 171), and while "[t]raditional treatment efforts tend to be narrowly-focused plans administered in institutional settings" (id.), MST attempts to identify and assess"known determinants and causes of anti-social behavior . . . recogniz[ing] the complex inter-relation between youth, family, peer, school, and community systems" (id.). Once the MST provider has identified specific areas of "systemic dysfunction" in a child's life, "an appropriateintervention" plan consisting of services is implemented by the provider (id. at 171-172).[FN8] WhileMST is intended as a treatment and service program for a non-institutionalized child, the threat of placement serves as an incentive encouraging cooperation and compliance, much as the threat of incarceration or other sanction serves as an incentive for compliance in problem-solving courts dealing with adult offenders.

While other dispositional alternatives not involving placement place responsibility for compliance and success upon the offender and his or her family, in the MST setting, "respon-sibility for success in the program and overcoming barriers to success is placed on the MST team- not the family" (Id. at 173). Thus, the MST provider must constantly monitor the [*10]juvenile'scompliance and progress and "when goals are not being achieved, the MST therapist mustreevaluate the situation and change the intervention methods accordingly" (id. 174). Ultimately,"the MST team assumes the responsibility of achieving a positive treatment outcome" (id.).In this particular case, community-based dispositional alternatives were attempted, but success was not achieved. When standard probation supervision failed, Multisystemic Therapy through the Juvenile Justice Initiative program was implemented. Unfortunately, for reasons which may never be known to this Court, the juvenile's criminal activity progressed to the point where he committed an armed felony offense which ultimately led to his incarceration in a correctional facility. While this juvenile delinquency proceeding has reached its conclusion, those administering the JJI/MST program are encouraged to thoroughly review the circumstances of this case so that structural and programmatic problems can be identified and changes implemented where necessary.Accordingly, for the reasons stated herein, it is herebyORDERED, that the petition filed pursuant to Family Court Act §360.2 on May 26, 2009is dismissed as academic (see, Matter of Hearst Corporation v. Clyne, 50 NY2d 707, 714; Matter of Melinda D., 31 AD3d 24, 28).This constitutes the decision, opinion and order of the Court.

E N T E R:________________________________

John M. Hunt

Judge of the Family Court

Dated: Jamaica, New YorkJuly 10, 2009 Footnotes

Footnote 1:In the criminal justice system, "[t]he overriding purpose of imposing a sentence ofprobation in lieu of other punishment is to rehabilitate the convicted criminal by giving him appropriate treatment, in order to . . . return him to society so reformed that he will not desire or need to commit further crimes"(People v. Letterlough, 86 NY2d 259, 264 [1995] (internal citation omitted); see, People v. Hale, 93 NY2d 454, 461-462 [1999]; People v. Swenson, 12 AD3d 948 [2004]). Thus, "[a] probationary sentence is a method of offering an offender an opportunity to rehabilitate himself, without institutional confinement, under the supervision of a probation officer and the continuing power of the court to use a more stringent sanction in the event the opportunity is abused" (People v. Letterlough at 264). The imposition of a period of probation in juvenile delinquency proceedings essentially serves the same purposes (e.g., Matter of Brandon W., 28 AD3d 783, 785 [2006], lv. denied 7 NY3d 707 [2006]; Matter of Ashley D., 55 AD3d 605, 606 [2008]; Matter of Rufino M., 165 AD2d 385, 386 [1990]).

Footnote 2:Family Court Act §360.2 (2) provides, inter alia, that "[n]on-hearsay allegations of the factual part of the petition or of any supporting depositions must establish, if true, every violation charged". However, violation petitions are significantly different than delinquency petitions asviolation petitions are "not the foundation of the court's jurisdiction" (Matter of Markim Q. at410). Thus, in contrast to the rules applicable to delinquency petitions, violation petitions may be amended for the purpose of curing defects in the factual allegations, and the right to a faciallysufficient violation petition may be waived if not asserted before the trial court (id. at 410-411; see, Matter of Wendell R., 36 AD3d 459 [2007]; Matter of David Q., 59 AD3d 868, 869 [2009]).

Footnote 3:Family Court Act §350.3 (2) specifies that a preponderance of the evidence is the standard of proof applied at a dispositional hearing.

Footnote 4:In the event that the Court orders a period of probation after a finding that the initial order of probation has been violated, the period of probation begins anew. Thus, the time spentunder probation supervision pursuant to the first order of probation is effectively disregardedand the period of probation of up to 24 months is calculated from the date that the new order ofdisposition is made (Matter of Vito G.L., 27 AD3d 471, 472 [2006]; Matter of Joshua M., at1074).

Footnote 5:A superior court information ("SCI") is filed where a defendant waives the necessity of obtaining an indictment for a prosecution involving one or more felony acts (Criminal Procedure Law §195.40). Often utilized where the parties have agreed to a plea bargain, the SCI is filed inSupreme or County Court by the District Attorney and it accuses a defendant of one or morecrimes. An SCI "has the same force and effect as an indictment and all procedures and provisions of law applicable to indictments are also applicable to superior court informations"(Criminal Procedure Law §200.15; see, People v. Zanghi, 79 NY2d 815, 816-817 [1991]; People v. Price, 234 AD2d 978 [1996], lv. denied 90 NY2d 862 [1997]; People v. Edwards, 39 AD3d 875, 876 [2007]).

Footnote 6:The New York court system has created specialized "problem-solving courts" which are based upon the preventive or therapeutic model. There are now multiple problem-solving courts in operation such as Mental Health Courts, Integrated Domestic Violence Courts, Sex Offender Courts, Drug Treatment Courts and Community Courts, all of which are centrally coordinated by the Chief of the Office of Policy and Planning for the New York State Courts (see generally, Judith S. Kaye, Albany Law Review Symposium: Refinement or Reinvention, The State of Reform in New York, 69 Alb. L. Rev. 831, 838 [2006]).

Footnote 7:One commentator has observed that "a considerable portion of [delinquent] children have serious, diagnosable emotional disturbances" such as psychotic disorders, schizophrenia, depressive disorders, bipolar disorder and serious depression (Geary, Note, Juvenile Mental Health Courts and Therapeutic Jurisprudence: Facing the Challenges Posed by Youth with Mental Disabilities in the Juvenile Justice System, 5 Yale J. of Health Policy, Law and Ethics 671, 677-678 [2005]). Others have also noted a prevalence of mental illness in children involved in the juvenile justice system (Griffin and Jenuwine, Essay, Using Therapeutic Jurisprudence to Bridge the Juvenile Justice and Mental Health Systems, 71 U. Cin. L. Rev. 65, 71 (2002) [hereinafter Griffin and Jenuwine]).

Footnote 8:Griffin and Jenuwine focus on the treatment aspect of MST rather than on the wider provision of services to a juvenile. They define MST as "an actual treatment model rather than a service delivery program. It is an intensive home-based cognitive-behavioral therapy . . . [t]heprogram's emphasis is on juveniles with behavior disorders" (Griffin and Jenuwine at 85).