Matter of Salvatore D.

[*1] Matter of Salvatore D. 2014 NY Slip Op 51123(U) Decided on June 26, 2014 Family Court, New York County Larabee, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 26, 2014
Family Court, New York County

In the Matter of Salvatore D., A Person Alleged to be a Juvenile Delinquent, Respondent.



D-04051-13/14A
Susan R. Larabee, J.

On April 30, 2014, the New York City Administration for Children's Services (hereinafter "ACS" or "Agency") filed a petition pursuant to Family Court Act § 355.5 seeking both an order extending the placement of Respondent Salvatore D. with ACS "Close to Home" for a period of six months and a determination that the Agency had "good cause" to file the petition less than sixty days prior to the expiration of Respondent's placement. At the same time, a permanency [*2]hearing petition, seeking an order approving its proposed and continued permanency plan of return to parent for the Respondent and a determination, pursuant to Family Court Act § 352.2(2) that reasonable efforts to reunify the Respondent with his parents are not necessary because the Respondent is now residing in a non-secure facility, was filed.

By original petition, filed on January 17, 2013, Respondent was charged with acts which were he an adult would constitute Petit Larceny under P.L. § 155.25 and Criminal Possession of Stolen Property in the Fifth Degree under P.L. § 165.40, both Class A Misdemeanors. On January 22, 2013, this Court entered a finding against the Respondent, upon his admission, to Petit Larceny. The dispositional hearing was conducted over the next five months. Numerous documents were entered in evidence, including two New York City Department of Probation reports, a report from Phoenix House (an out-patient drug rehabilitation center), and ACS Court Ordered Investigation, and two Mental Health Reports. By order dated June 12, 2013, Respondent was adjudicated a juvenile delinquent and placed with ACS in a non-secure "Close to Home" residence for a period of twelve months, less time spent in detention pending disposition. ACS was ordered, among other things, to devise a drug and mental health treatment plan for the Respondent and to secure him an appropriate school setting.

An "affidavit showing good cause" was annexed to the April 30, 2014, petition to extend Respondent's placement and review his plan as above. Insofar as relevant, ACS' petition, verified by ACS' Community Support Specialist (CSS) Darrel Tanner alleges that the Respondent was born on May 7, 1997,[FN1] placed with ACS Close to Home on June 12, 2013, transferred to the Martin De Porres facility on June 27, 2013, and released on aftercare to reside with his parents, exactly 6 months later, on December 27, 2013. Specific conditions of release were in effect for the Respondent: attend a drug program, attend school every day, report to ACS caseworker Mr. Tanner for six weeks, attend Family Functional Therapy bi-weekly, and comply with Bridges to Health Services. ACS' petition and good cause affidavit allege that Respondent's placement expires May 7, 2014, taking into account AWOL periods and credit for time served in detention prior to placement.[FN2] ACS alleges that March 7, 2014 was the last day to file a petition for the extension of placement and, although this petition is submitted less than sixty days prior the expiration of Respondent's current placement, ACS has good cause for the delay in filing.

ACS alleges that prior to March 7, 2014, the filing of an extension petition was unnecessary because the Agency's plan for the Respondent was to remain on aftercare status in the home of his parents and to provide services to him in the community. The verified petition alleges that the following events occurred prior to March 7, 2014, which allegedly support its position that it was unnecessary to file an extension petition: Upon Respondent's release to aftercare on December 27, 2013, he was enrolled in Newtown High School in Elmhurst, New York. As of the filing date of the petition, April 30, 2014, Respondent last attended school on [*3]February 6, 2014. On February 10, 2014, Respondent's father arrived at the ACS' office, at 150 Williams Street, to complain that the Respondent was in the home with multiple friends smoking marijuana. The Respondent father reported that the friends refused to leave. ACS' Placement and Permanency Speciality (PPS) and CSS instructed the Respondent's father to call the authorities if unwanted persons are in the home. The Respondent's father also reported to ACS that the Respondent was stealing items from the home to support his marijuana habit. On the same date, thirty-minutes after the father's arrival, the Respondent arrived at the ACS office for his mandatory "check-in". Respondent's eyes were red and he was under the influence of marijuana. On February 10, 2014, Respondent admitted to ACS that he was using marijuana. ACS scheduled a Family Team Session (FTS) with the Respondent and his father.

ACS' good cause affidavit alleges that the plan for the Respondent to remain on aftercare continued until March 8, 2014 when the Respondent was arrested for allegedly being an accessory to rape and for possession of marijuana. The arrest arose out of an alleged incident that occurred in the Respondent's home and involved his video-taping the rape. ACS claims that on March 8, 2014, a report was called in to the State Central Registry and on March 10, 2014 the ACS Office of Family and Youth Division (OFYD) was notified of the felony arrest. On March 11, 2014 at 9:20 A.M., a child safety conference was held. In attendance were the director of aftercare, the CCS' caseworker, Child Protective Services' caseworker, and Respondent's parents. ACS determined that Respondent was to be deemed a "detriment to the safety of other children in the home." According to the affidavit of good cause, Respondent's aftercare status was then revoked and he was placed with Episcopal Social Services, in a non-secure placement. It was not until nearly two weeks later, on March 24, 2012, that the CSS worker contacted the Realization Center, the outpatient drug rehabilitation center the Respondent had been referred to for aftercare services. The Realization Center case manager, Will Barbee, informed CSS that Respondent had not been attending, that he required a higher level of care and that he would be discharged from their program. There is no information in this petition or the annexed affidavit regarding the Respondent's progress or services while in care or any information as to his services from the period of discharge to aftercare on December 27, 2013 through February 10, 2014, the date that the Respondent's father arrived the ACS' office to report his concerns regarding Respondent's compliance and drug use.

On May 2, 2014, the counsel for ACS, Alina Novakova, Esq., counsel for the Presentment Agency, Karen Seemen, Esq., the Legal Aid Society, Brian Baum,, Esq., appearing on behalf of Carla Buchanan, Esq., for the Respondent, the Respondent, his parents, Alisha Simmons, ACS director of aftercare and two placement youth specialists from Episcopal Social Services non-secure placement appeared before the Court on the instant petition. Based on ACS lack of specificity in its petition regarding credit and AWOL dates, the Court inquired as to ACS calculations to ensure continuing jurisdiction of the matter.[FN3] Counsel for ACS reported to the Court that she had discussed Respondent's placement period with ACS caseworkers, despite the [*4]fact that it was not properly plead, and assured the Court that jurisdiction continued.

Thereafter, counsel for ACS requested an adjournment for the good cause hearing as her witness was unavailable due to a medical emergency. Respondent's counsel request that the Court dismiss the petition for failure of the Agency demonstrate good cause. Since ACS is charged with the duty to properly calculate a Respondent's placed under Executive Law § 525, this Court, upon the representation of counsel for ACS, granted the petitioner's application, temporarily extended placement, and adjourned the matter to May 9, 2014.

On May 9, 2014, counsel for ACS, Lauren Petty, Esq., on behalf of Alina Novakova, Esq., counsel for the Presentment Agency, Karen Seemen, Esq., and the Legal Aid Society, Brian Baum, Esq., appearing on behalf of Carla Buchanan, Esq., the Respondent's father, Alisha Simmons, ACS director of aftercare, Robert J. Sloan, ACS court liaison, and Maribelle Sabarria, and Episcopal Social Services Foster Care placement caseworker appeared before the Court. ACS liaison Sloan informed the Court that the Respondent and the ESS caseworker were en route, but had not yet arrived. Counsel for ACS requested an adjournment and, on consent of Respondent's counsel, the adjournment was granted and placement was temporarily extended.[FN4]

On May 12, 2014, counsel for ACS, Alina Novakova, Esq., counsel for the Presentment Agency, Karen Seemen, Esq., the Legal Aid Society, Carla Buchanan, Esq., for the Respondent, the Respondent, Respondent's father, Alisha Simmons, ACS director of aftercare, Robert J. Sloan, ACS court liaison, Maribelle Sabarria and two placement youth specialists from Episcopal Social Services non-secure placement appeared before the Court and a good cause hearing was commenced. The petitioner called Alisha Simmons, ACS Director of Aftercare, Division of Family and Youth Justice, Close to Home.

Ms. Simmons testified that Respondent was placed with Close to Home on June 12, 2013 and, on June 27, 2013, placed in the Martin De Porres, non-secure facility. Ms. Simmons testified that Respondent's placement date was set to expire May 12, 2014, based on his 35 days of credit for time served in detention pending disposition, less five AWOL dates (July 4, 2013 to July 5, 2013 and July 16, 2013 to July 20, 2013). Ms. Simmons, testified that Respondent was released from non-secure detention to the community aftercare program on December 27, 2013 and returned to non-secure detention on March 31, 2014. Based on her calculations, the last date to file an extension of placement petition for the Respondent was March 11, 2014. According to Ms. Simmons, the Respondent was still residing at home on this date.Prior to March 8, 2014, Ms. Simmons testified that ACS intended to have the Respondent continue in the community, in his home, with the support of aftercare services, which is a unit charged with the duty of monitoring Respondent's reintegration into the community. Ms. Simmons testified that before March 8, 2014 the aftercare caseworkers attempted to implement Family Functional Therapy (FFT) in the home in order to strengthen the strained relationship [*5]between the Respondent and his parents. However, Ms. Simmons testified that these attempts were all unsuccessful. FFT was never implemented in the home because the therapists were not able to gain access to the home. No sessions were conducted.

Ms. Simmons testified that the Respondent was complying with curfew, but did not testify to any specific details regarding curfew. Ms. Simmons further testified that Respondent was compliant with "check-ins" with the ACS caseworker at the ACS office, keeping 6 out the 9 check-ins. She also testified that Respondent was "enrolled" in Realizations outpatient drug treatment program, but missed 10 out of 20 sessions and tested positive for marijuana at all 10 sessions that he attended. She testified, as the petition stated, that the Respondent last attended school in February 6, 2014. Ms. Simmons testified that from December 27, 2013 to March 7, 2014, the ACS case planner "reached out" to the family five times via phone, with only two completed phone calls; voicemail messages were left the other 3 times. Other attempts to "reach out" to the family consisted of 2 unsuccessful home visits in order to address what she described as "the only identifiable issue of non-compliance"- lack of school attendance.

Ms. Simmons testified that based on Respondent's performance and compliance in aftercare from the period of December 27, 2013 through March 7, 2014, ACS did not intend to file an extension of placement petition. Ms. Simmons testified that ACS intended to "implement family counseling within the home setting... monitor the school attendance... and follow-up on the substance abuse treatment that [the Respondent] needed." Even though on March 10, 2014 ACS learned that Respondent was arrested as an accessory to a rape, and, learned on March 11, 2014, when the ACS case planner followed up for the first time with Realizations drug program by phone, that the Respondent was unable to continue in the program and that he needed a higher level of care, Ms. Simmons testified that ACS remained steadfast in their decision not to file an extension of placement petition. Rather, Ms. Simmons testified that the ACS caseworker spoke with the Respondent on the phone and "identified the issue" regarding his compliance with Realization. By March 24, 2014 the caseworker met with the Respondent in person to address this "issue"; no testimony was elicited as to what the caseworker identified as the "issue". On cross-examination, Ms. Simmons testified that it was not until the end of March, 2014 that ACS decided that it was appropriate to file an extension of placement petition and acknowledge that the instant petition was not filed with this Court until one month later, on April 30, 2014.

Family Court Act § 353.3(1) requires that a petition to extend the placement of a juvenile delinquent be filed "at least sixty days prior to the expiration period of placement, except for good cause shown." Failure to demonstrate good cause by a preponderance of the evidence mandates dismissal of the petition. Courts have consistently held that neither the Agency's failure in its statutory due to properly calculate the expiration date nor administrative neglect on the part of the Agency or counsel constitute good cause. Matter of Scott B.H., 198 AD2d 278, 603 N.Y.S.2d 540 (2nd Dept. 1993); In re Andre T., 37 AD3d 233, 829 N.Y.S.2d 495 (1st Dept. 2007).

Under Executive Law § 510-b, ACS, as an authorized Agency, is charged with the duty to calculate the juvenile delinquent's period of placement. This includes calculating any pre-trial time served in detention by the juvenile delinquent. If that juvenile delinquent is absent from the Agency without consent, the Agency is then charged with the responsibility of interrupting the calculations until the return of the child. Respondent Salvatore D. was remanded from the [*6]period of January 14, 2013 to January 22, 2013 and April 2, 2013 to May 7, 2014.[FN5] Rather than crediting the Respondent for the 43 days, ACS' witnesses testified that the Agency only credited the Respondent for 35 days, representing the period from April 2, 2013 to May 7, 2014, less his 5 days AWOL. Petitioner offers no explanation for its failure to properly calculate the Respondent's placement period or provide the Court with a consistent expiration date, first alleging that Respondent's placement ended May 7, 2014 and then having a witness testified it ended May 11, 2014. In re Angel F., 273 AD2d 71, 709 N.Y.S2d 76 (1st Dept. 2000).[FN6] In fact, ACS even concedes, on the record, to the error in these calculations.

ACS' mis-calculation of pre-trial detention time for this Respondent's placement period and, in general, the mis-calculation of the time period of other juvenile delinquents that appear before this Court, appears to be an apparent and reoccurring error on the part of the Agency.[FN7] See In re Diamond S. 113 AD3d 540, 980 N.Y.S.2d 10 (1st Dept. 2014). ACS has a statutory duty to properly calculate the placement period of a Respondent, provide services and monitor a Respondent.[FN8] These statutory duties are codified in the law and established within ACS protocols, rules and regulations, to not only protect the liberty interests of the Respondents and safety of the community, but to rehabilitate these Respondents in order to facility a positive re-entry into their families and communities. The case that is now before this Court, demonstrates that ACS' failure to follow these mandates clearly resulted in unnecessary and likely preventable harms to Respondent's community, his family and Respondent himself.This Court recognizes the importance of ACS' duty to accurately calculate the placement period of this Respondent. However, the Agency's errors in this matter extend far beyond these calculations. Even if this Court adopts ACS' flawed records, time periods and calculations, this petition was filed according to the Agency's original calculations only 7 days prior to the [*7]expiration of placement. If deciding the matter using the petitioner's witness' testimony , it was filed 11 days prior to the expiration. There was no demonstration of good cause.[FN9] Once again, without explanation, petitioner's witness' testified that the Agency only determined that it was necessary to file an extension petition at the end of March, 2014 and acknowledged that the petition was still not filed until April 30, 2014. Clearly there was administrative delay and neglect, which cannot justify a good cause finding.

Furthermore, this Court finds that ACS' argument that the Agency initially believed that an extension of placement would not be necessary until shortly before the filing date is unpersuasive and wholly unsupported by the facts of this case and the significant and long history that this family has with ACS. In fact, at the dispositional hearing in this matter, it was reported that the family had an open ACS case since January 9, 2011. Indeed, by an order dated July 19, 2011, a finding of neglect on behalf of the subject children, including Salvatore D., was entered by the Hon. Jody Adams against his father based on his mental illness.[FN10] At disposition under the neglect docket, the family was placed under 12 months of ACS supervision. Upon expiration of that matter, the court granted ACS a three month extension of supervision. During the pendency of that neglect case, in 2012, two warrants were issued for this Respondent, Salvatore D.. Due to his drug use and behavioral problems, his parents, with assistance of ACS, voluntarily placed him in the care and custody of the Agency. The Respondent was placed at ACS' contract Agency, Children's Village, from which he eventually absconded, resulting in a discharge from the program.[FN11]

At the time of the Respondent's discharge from Children's Village, ACS recommended St. Luke's Roosevelt Hospital's comprehensive adolescent rehabilitation and educational services (CASES) for the Respondent. However, enrollment in this program was stalled due to the Respondent's low score at placement. Thereafter, the Respondent's father, at the bequest of ACS, brought the Respondent for a psychological evaluation. This mental health report dated on or about October, 2012 recommended psychotherapy for individuals with intellectual disabilities.[FN12] The underlying neglect docket demonstrates ACS' extensive history with this

family and particular insight to this Respondent's past behavior, including his pattern of absconding from facilities and the home, his drug use, mental health issues and educational issues.

On January 17, 2013, Respondent Salvatore D. crossed-over from being a subject child in a neglect proceeding to being a Respondent in a juvenile delinquency proceeding. During the pendency of the delinquency matter, New York Foundlings Family Functional Therapy Child Welfare Program (FFT) team, assigned during the underlying neglect docket, was visiting the home weekly for family therapy sessions. For the period Respondent was paroled home under this docket, New York Foundling Way Home attempted to work in conjunction with the FFT therapist to assist the Respondent. This therapy was scheduled to end April of 2013. It was reported during this disposition that Respondent was not attending FFT counseling sessions.

The reports entered at the delinquency disposition also indicate that the Respondent was not progressing in his then current school setting. The school reported to the New York City Probation Department that the Respondent was a "problematic student with horrible attendance" and aggressive, "pushing the officers". The Respondent reported that he had suspended more than 5 times, once for pepper spraying a female student and another for repeatedly banging a male student's head on the floor for spilling chocolate milk on his tracksuit. Respondent's Individual Educational Plan (IEP) indicates that he has speech and language impairments, requires special education, speech and language therapy, occupational therapy and a school social worker. Respondent, at the time of this arrest, was in special education, repeating the 9th grade for the second time and failing 6 out of 8 classes.

The Respondent's father actively participated in the mental health collateral interviews and probation interviews during the pendency of this disposition. His has also appeared at nearly all court dates. He consistently reported that, despite his efforts, he was unable to secure the help his son needed. The father reported that his son has a history of running away from home, leaving the home for up to 2 weeks at a time, and rarely keeping curfew. The father reported that his son's behavior is, at times, aggressive. He also reported that his son uses alcohol and has had a serious and on-going drug problem for two years, smoking marijuana every day, 2-3 times per day, with his friends and by himself. His father reported that his son steals to support his marijuana habit and his family is overwhelmed by the Respondent's behavior. The father reported that, despite his efforts to take him to drug treatment programs, his son will not comply with outpatient programs. The Respondent's parents, collectively, state that they did not believe the Respondent would comply with probation, that he was in need of an in-patient drug treatment program or a residential treatment facility, and that he needed a more appropriate [*8]school setting or vocational setting.[FN13]

Respondent self-reported during the Probation and mental health interviews that he smokes marijuana daily and is unable to quit. He admitted to not consistently attending FFT home therapy sessions, frequently leaving home for extended periods of time, missing curfew, using alcohol, engaging in unprotected sexual activities in the past, which resulted in a pregnancy, stealing from his mother, and reporting that he "gets mad" easily. Respondent reported that his friends are around his age, 16 years-old at the time, or between the ages of 18-21 and that some of his friends engage in criminal activity and sell drugs. He reported that he engaged in no pro-social extra-curricular activities. Respondent also confirmed that, at one point, he saw a therapist and was prescribed medication but specifically recalls not being capable of understanding the therapist.

While on parole in May of 2013, Respondent was enrolled in Phoenix House, an outpatient drug treatment program, which included individual therapy once per week, group therapy four times per week, random drug tests, and individual and/or group family therapy. Respondent did not comply with the Phoenix House out-patient program, whose counselor reported that the Respondent only attends family sessions when his father attends with him; otherwise, the Respondent only attended 14 out of 30 days and tested positive for marijuana. The out-patient program recommended, as Respondent's father suggested to ACS on numerous occasions, a residential drug treatment program.

During the original dipositional hearing, this Court ordered ACS to conduct a Court Ordered Investigation (COI). The COI, submitted on April 18, 2013, states that the Respondent's mother currently has an open ACS cases. In fact, his mother has seven prior ACS cases and four indicated cases. The Child Protective Services worker stated that the Respondent appears to have delays, is a danger to himself, uses drugs, and refuses both treatment and any involvement with preventative services, including the current FFT services in the home. ACS reported that the "parents are unable to provide the Respondent with the appropriate supervision as they have no control over [him]; Respondent cannot be maintained in the community."

Clearly, ACS has an extensive amount of knowledge and information about this family and specifically about this Respondent and his particular needs. Over the past three years ACS has recommended numerous times that the Respondent receive in-patient treatment and specialized education. However, the Agency never implemented this treatment plan. Their ultimate failure to assist this family and particularly this Respondent can be seen to have resulted in this Court adjudicating Respondent a juvenile delinquent. ACS had another opportunity, armed with a wealth of information from drug treatment providers, school officials, mental health professionals and his family (particularly his father), to assist this youth in becoming a productive member of society. As stated by ACS in their Close to Home Plan, "aftercare services are an essential part of the juvenile justice continuum. Aftercare and transition planning are critical in helping to prevent recidivism, stabilize youth within the family, improve family functioning, reduce truancy, substance misuse, curfew non-compliance and other teen-specific [*9]behaviors, and strengthen parenting skills." See New York City Administration for Children's Services Close to Home: Plan for Non-Secure Placement, June 18, 2012, pg. 72. Contrary to the Agency's protocol, it appears that ACS, rather than addressing the Respondent's needs while in placement, simply held him for less than limited period of time prescribed and released him to "aftercare" with no supervision or supportive services in place.[FN14]

The Court is cognizant that it is within ACS' discretion whether to file a petition for extension.[FN15] However, it is evident in this matter that, given Respondent's history and ACS' knowledge of this history, the Agency's plan of Respondent's return to parent and continuation in the community was no longer feasible, at least in February, 2014 (if not earlier), when the Respondent's father appeared at the ACS office asking for assistance due to Respondent's continued drug use and stealing from the home and when the Respondent appeared at the office under the influence of marijuana and admitted to smoking it. Certainly, the Agency's plan was no longer feasible by March 8, 2014 when the Respondent was arrested for a serious felony involving sexual violence- as an accomplice to rape, with the rape allegedly taking place in his own home. Finally, in March, 2014, ACS sought to revoke Respondent's aftercare status and return him to placement. That hearing "dragged on" according to ACS, partly due to Respondent's lack of cooperation. This should have triggered the filing of an extension petition no later than then March 25, 2014 when ACS' counsel reported that the revocation hearing was concluded and the Respondent's aftercare revoked.

Based upon ACS' procedures and protocols, the Agency should have known in February, 2014 that the Respondent had not been attending school. They should have known in February, 2014 that neither the Respondent nor his family were engaged in services, namely FFT, which had failed to engage this Respondent since his release to aftercare on December 27, 2013, because the provider was unable to either gain access to the home or contact the family. The Agency should have known by February, 2014 that the Respondent was not engaged in his out-[*10]patient drug rehabilitation program, was testing positive for marijuana, and, once again, a higher level of treatment was being recommended. There is grave concern for the best interests of juveniles when compliance under the auspices of ACS equates to attending 66% of "check-ins", arriving under the influence of marijuana to these "check-ins" with a caseworker, testing positive at a drug rehabilitation service, continuous drug use, stealing, out of control behavior at home, truancy and re-arrests. Clearly, continuation in placement was not only warranted by Respondent's behavior, but it appears as though the Respondent's father desired the placement to resume and that continued effective services for Respondent had to be put in place- not simply to recycle those same services that had previously failed this Respondent.

"This is not the case where good cause was found based upon the petitioner's decision to await the final determination of a new criminal proceeding... or where a change of circumstances, such as a series of bad acts, occurred after the deadline for filing." In re Andre T., 37 AD3d 233, 829 N.Y.S.2d 495 (1st Dept. 2007). This is a case of administrative neglect and failure on the part of ACS Close to Home to timely file a petition and to properly, under its own regulations and statutory guidelines, provide the Respondent with proper supervision, treatment or confinement and to adequately protect the community. If ACS had taken this matter seriously perhaps the Respondent would have gotten off drugs; perhaps he would not have stolen money from his parents; and, perhaps a young woman might not have reported having been raped in Respondent's apartment.Accordingly, this Court finds ACS has demonstrated no good cause for filing the instant petition approximately 54 days, or at best 49 days, after the required filing date and 52 days beyond the felony arrest. ACS has made no efforts to assist this Respondent or protect the community; and, therefore, it is hereby

ORDERED, that ACS' petition is hereby dismissed.

Dated:June 26, 2014ENTER:

New York, New York ____________________________SUSAN R. LARABEE, J.F.C. Footnotes

Footnote 1: Respondent's correct date of birth is May 12, 1997.

Footnote 2: As ACS conceded on the record, both the petition and affidavit of good cause are poorly drafted, riddled with errors and missing accurate information regarding the calculation of Respondent's placement period, including AWOL dates. The Court is constrained to read both the affidavit showing good cause in conjunction with the petition to determine ACS' application.

Footnote 3: Family Court Act § 355.3(1) states that "in no event shall [a petition for extension of placement] be filed after the original expiration date." If placement has expired, regardless of whether or not the Agency has demonstrated good cause, the court is without jurisdiction to extend placement of a Respondent. Matter of Carmen R., 123 Misc 2d 238, 73 N.Y.S.2d 312.

Footnote 4: Counsel for ACS informed the Court that, according to ACS' system, the Respondent was credited for 35 days served in detention, less five AWOL dates. Contrary to the petition, ACS reported that the Respondent's placement was to expire May 12, 2014 rather than May 7, 2014, and filing was to occur on or before March 12, 2014 rather than March 7, 2014. In addition, ACS reported that the Agency was in the process of attempting to reconcile whether the Respondent AWOL 5 or 10 days.

Footnote 5: On the record, all parties agreed to the period of time that the Respondent was remanded: January 14, 2013 to January 22, 2013, which is 8 days, then April 2, 2013 until May 7, 2014, which is 35 days, for a total of 43 days. AWOL periods interrupt the period of placement. The Respondent's return commences the "counting".

Footnote 6: Despite the fact that there was varying representations from ACS' counsel on the record regarding Respondent's AWOL history, the Court finds that the Respondent, having absconded from the facility for 5 days, should have been credited with 38 days in pre-trial detention. Accordingly, Respondent's placement was set expire on May 4, 2014 and the last day to file the extension of placement petition was March 5, 2014.

Footnote 7: Counsel for the Respondent also noted on the record that this was counsel's second case within one week where ACS had miscalculated the placement period and failed to demonstrate good cause for the late filing of the extension petition.

Footnote 8: See also, New York City Administration for Children's Services Close to Home: Plan for Non-Secure Placement. For Submission to the NYS Office of Children and Family Services. June 18, 2012. http://www.nyc.gov/html/acs/downloads/pdf/cth_NSP_Plan_final.pdf

Footnote 9: Based on the Court's calculations the petition was filed 4 days before the Respondent's placement was set to expire.

Footnote 10: This matter was heard under docket NN-25019-21/11. His father was excluded from the home for a period of time. During the dispositional hearing, Respondent's father admitted to being diagnosed with bi-polar disorder and that there was family history of mental illness. Respondent's two younger siblings also suffered from various form of mental illness, including but not limited to ADHD or ODD.

Footnote 11: The original warrant for this Respondent under the neglect docket was issued on May 9, 2012 and vacated on May 17, 2012. Another warranted was issued n June 4, 2012 for this Respondent under the neglect docket and continued on June 18, 2012 under the voluntary placement docket, L-14767/12.

Footnote 12: It appears that from this report in the Fall of 2012 that the Respondent's father was informed that Respondent was diagnosed as mildly mentally retarded (IQ score 75, borderline range of functioning). This mental health report also indicates that the Respondent was not toilet trained until the age of six; from the ages of about 7-8 years, the Respondent was in therapy and receiving medication at Hamilton House for his aggressive behavior- this was discontinued because the Respondent refused to take his medicine; Respondent was hyperactive and sleeping frequently; he was caught with beers in his bag at school; and, reportedly using marijuana.

Footnote 13: In February of 2013, during the pendency of the original matter, the Respondent father was psychiatrically hospitalized. The father reported that it was due to the stress the family was experiencing.

Footnote 14: ACS' NSP Plan states that "for every youth in care, a target length of seven months will be set on the first day of placement. If an NSP provider believes a stay longer than seven months is necessary, a written waiver must be submitted to ACS Placement and Permanency Specialist (PPS). The NSP provider will required to state the additional time request...and the goal(s) that the youth needs to achieve in that timeframe.... and [if the additional services requested] could be provided in the community." The PPS worker will review the request, provide a decision to their supervisor, who will make a determination based on the "reasonableness" of the request. http://www.nyc.gov/html/acs/downloads/pdf/cth_NSP_Plan_final.pdf, page 70.

Footnote 15: Executive Law § 510-a states that the Agency "may conditionally release any youth placed with [ACS] to aftercare whenever it determines such conditional release to be in the best interests of the youth, that suitable care and supervision can be provided and that there is a reasonable probability that the youth can be conditionally released without endangering the public safety." The Agency may "return the child at any time within the period of placement, where there is violation of the conditions of release or a change of circumstances." The decision to release a child to aftercare is in the sole discretion of the Agency. Matter of Christopher A., 305 AD2d 607, 760 N.Y.S.2d 208 (2003).