State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 2, 2016 521854
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In the Matter of JOSHUA LL.,
a Juvenile Delinquent.
SULLIVAN COUNTY DEPARTMENT OF
FAMILY SERVICES, MEMORANDUM AND ORDER
Respondent;
JOSHUA LL.,
Appellant.
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Calendar Date: April 29, 2016
Before: McCarthy, J.P., Egan Jr., Rose, Lynch and Aarons, JJ.
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Michael C. Ross, Bloomingburg, for appellant.
Glen H. Rosenstein, Sullivan County Department of Family
Services, Monticello, for respondent.
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Egan Jr., J.
Appeal from an order of the Family Court of Sullivan County
(Meddaugh, J.), entered August 7, 2015, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 3, to extend respondent's placement with petitioner.
In June 2014, respondent (born in 1999) was charged in a
petition with committing acts that, if committed by an adult,
would constitute the crimes of burglary in the second degree,
grand larceny in the fourth degree and criminal possession of
stolen property in the fifth degree. Thereafter, in satisfaction
of that petition and other pending charges, respondent admitted
to conduct constituting criminal trespass in the second degree
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and was adjudicated to be a juvenile delinquent. Following a
dispositional hearing, respondent was placed in petitioner's
custody for a period of up to one year, with placement to
terminate on June 26, 2015. Petitioner placed respondent in
Berkshire Farm Center and Services for Youth, a nonsecure
residential detention facility located in Columbia County, and
respondent's subsequent appeal to this Court, wherein he claimed
that he should have received a less restrictive placement, proved
to be unsuccessful (Matter of Joshua LL., 132 AD3d 1201 [2015]).
On June 25, 2015, petitioner sought a permanency hearing
and to extend respondent's placement. Respondent's placement was
continued pending a good cause hearing, which was conducted on
July 2, 2015. At the conclusion of that hearing, Family Court
denied respondent's motion to dismiss the underlying extension
petition as untimely, finding that petitioner demonstrated good
cause for failing to file the petition within the time
constraints set forth in Family Ct Act § 355.3 (1). As to the
merits, Family Court granted petitioner's application and
extended respondent's placement until July 2, 2016.1 This appeal
by respondent ensued.
A petition to extend the placement of a person adjudicated
to be a juvenile delinquent "shall be filed at least [60] days
prior to the expiration of the period of placement, except for
good cause shown" (Family Ct Act § 355.3 [1]; see Matter of
Anthony D., 274 AD2d 727, 728 [2000]). Where, as here, the
petition to extend placement is not filed at least 60 days prior
to the expiration thereof, Family Court must "first determine at
a hearing on such petition whether good cause has been shown for
the late filing" (Matter of Andre T., 37 AD3d 233, 234 [2007];
see Family Ct Act § 355.3 [2]). If good cause is established,
the court then considers whether the petitioner has demonstrated,
1
Although the order set down July 2, 2015 as the date upon
which respondent's placement would terminate, it is apparent from
a review of the order in its entirety – including references to
the next scheduled permanency hearing – that this is a
typographical error and that respondent's placement actually ends
on July 2, 2016.
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by a preponderance of the evidence (see Family Ct Act §§ 350.3
[2]; 355.3 [3]), that an extension of placement would protect
both society and the best interests of the respondent (see Family
Ct Act § 355.3 [4]; Matter of Ashanti W., 242 AD2d 539, 539
[1997]). "If good cause is not shown, the court [must] dismiss
the petition" (Family Ct Act § 355.3 [2]; see Matter of Andre T.,
37 AD3d at 234).
Preliminarily, to the extent that respondent argues that
petitioner failed to allege good cause for the untimely filing in
the first instance, we need note only that "Family [Ct] Act
§ 355.3 (1) contains no requirement that [an] excuse for late
filing of [an] extension petition be set forth in the petition
itself" (Matter of Loren S., 220 AD2d 857, 858 [1995]). As for
the proof adduced at the hearing, petitioner's caseworker
testified that, although respondent experienced "good days" and
"bad days" throughout the course of his stay at Berkshire Farm,
respondent "was on a streak where he was doing very well" and, as
the end of his placement approached, the assumption was that "he
would be discharged." Indeed, Alicia Ferriero, a clinician at
Berkshire Farm who had been working with respondent for
approximately three months at the time of the July 2015 hearing,
testified that, when she took over respondent's case, she was
told that "he was being discharged." Within one month of
respondent's anticipated June 26, 2015 discharge date, however,
his behavior began to unravel. In this regard, Ferriero
testified that she sent respondent on a "full home leave" –
scheduled for May 20, 2015 to May 26, 2015 – to "test the
water[s]" and to see how he was going to "handle being home for a
longer period of time." That visit was – by all accounts –
unsuccessful, and respondent requested an early return to the
facility. On May 30, 2015, respondent was found with marihuana
on his person. Thereafter, during a discharge planning meeting
held two weeks before respondent's anticipated departure from the
facility, which respondent refused to attend, his father
expressed concerns about respondent's readiness to return home.
Additionally, on or about June 18, 2015, respondent pushed one of
his peers down a flight of stairs and, when a staff member
intervened, the staff member was assaulted as well. As a result
of this incident, a scheduled family visit did not take place.
In light of these events, Ferriero concluded that discharge from
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the facility was not appropriate at that time and notified
petitioner accordingly. According to Ferriero, respondent
required "a short period of stabilization" to ensure that he and
his father were "in a better place" and, more to the point, to
make sure that respondent was possessed of the "coping skills" he
would need in order to control his behavior and his anger when he
returned to society.2
In our view, the foregoing proof, which documented a series
of negative events and behaviors occurring shortly before
respondent's scheduled discharge date, was sufficient to
establish good cause for the untimely filing of the underlying
petition (see Matter of Natalie B., 32 AD3d 1323, 1323-1324
[2006]; compare Matter of Andre T., 37 AD3d at 234-235). Thus,
Family Court properly denied respondent's motion to dismiss.
Such proof also established, by a preponderance of the evidence,
that extending respondent's placement was appropriate (see Matter
of James T., 259 AD2d 705, 705 [1999]; Matter of Sabrina S., 256
AD2d 914, 915 [1998]; Matter of Ashanti W., 242 AD2d at 539;
Matter of Michelle T., 227 AD2d 226, 226 [1996]) – particularly
given the absence of a successful home visit, respondent's lack
of success in consistently managing his behaviors and his
father's stated reluctance for respondent to return home at that
time. Accordingly, Family Court's order is affirmed.
McCarthy, J.P., Rose, Lynch and Aarons, JJ., concur.
2
Ferriero also authored a report dated June 16, 2015,
which detailed respondent's progress at Berkshire Farm and
recommended an extension of his placement. This report, which
appears in the record on appeal, apparently was filed with Family
Court prior to the hearing in this matter.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court