Empire State Coalition's Logo


Legal Issues

Section VI:
JUVENILE JUSTICE, CHILD ABUSE, DOMESTIC VIOLENCE,
PENAL LAW, ORDER OF PROTECTION

Legal Issues Project

Upcoming Events

Become A Member

Contact Us

Members Only

Home Page


Q. VI.1 If a youth, who is over the age of 16, breaks the law, can the parents be held responsible?

Q. VI.2 If a youth has a Juvenile Record at age 13, and commits a crime at 16, does he/she have to go to jail?

Q. VI.3 How long does a young person's name remain in a Juvenile Report?

Q. VI.4 What is the procedure to get a young person's juvenile record expunged?

Q. VI.5 If a parent is arrested for possession of drugs or intent to sell drugs, should a CPS report be filed?

Q. VI.6 In regards to CPS, must the name of the person investigated for child abuse or neglect be removed from the State Registry if the case is unfounded?

Q. VI.7 In regards to CPS, unfounded cases are kept on file and may be reexamined if another report is made; if another report is not made, is there any potential adverse impact on the client if the case has been unfounded?

Q. VI.8 What are the current Domestic Violence Laws in New York State (arrest, stalking, etc.)?

Q. VI.9 How does one obtain and enforce an Order of Protection?

Q. VI.10 What is the average length of jail time for a teen who is arrested for selling/using marijuana?

Q. VI.11 What is Statutory Rape? When can/should a CPS report be made and under what conditions is that report accepted? What is the process after a report is made? What responsibilities do the police and/or agency have toward the alleged victim?

Q. VI.12 What does "Y.O. status" mean?

Q. VI.13 What is a "R.A.P. Sheet"? How does a young person get one?

Q. VI.14 If a mandated reporter calls the CPS Hotline, does that call have to be accepted?

Q. VI.15 What recourse does an abused youth have when CPS will not respond?

Q. VI.16 At what age does CPS no longer have responsibility for a youth? 16? 18? 21?

Q. VI.17 When a young person's probation goals have been met, and the probation time is coming to an end, can a parent seek to have the period of probation extended?


Q. VI.1 If a youth, who is over the age of 16, breaks the law, can the parents be held responsible?

A. Under General Obligation Law 3-112, parents are liable for damage to public or private property, up to $5000, caused by the willful or malicious acts of their children under the age of 18. If the youth is emancipated and living beyond the lawful control of the parent, the parent may be relieved of such liability depending on the circumstances of the child's emancipation.

Q. VI.2 If a youth has a Juvenile Record at age 13, and commits a crime at 16, does he/she have to go to jail?

A. No. There are no rules that require automatic imprisonment in such cases. However, certain serious crimes require minimum prison terms.

Q. VI.3 How long does a young person's name remain in a Juvenile Report?

A. We are assuming that this question refers to the record of a child who commits a criminal offense as a juvenile. Whether or not a record remains depends upon whether the court, on its own initiative, expunges the record or whether a motion to seal the record is granted. Neither occur automatically and, therefore, unless the record of juvenile delinquency is sealed or expunged it remains available. It is also worth noting that a sealed record can be opened if the young person is involved in a subsequent adult criminal conviction.

Q. VI.4 What is the procedure to get a young person's juvenile record expunged?

Although this question refers to procedures governing expungement, it is important to describe two different provisions in the Family Court: one involving the expungement of records and the other involving the sealing of records of juvenile delinquency.

Unless a child is actually adjudicated (found to be) a juvenile delinquent (JD), any record of juvenile delinquency must be automatically expunged. Where a JD is withdrawn, dismissed, or the child is acquitted, the record must be destroyed. The only exception would require the county attorney to file a motion with the court that the record not be expunged. Such motions are filed very rarely and even when filed, are rarely granted. The procedure is automatic and should be noted on the final court order.

Even if the court concludes that the child is a juvenile delinquent, (except in cases involving a designated felony) the court may issue an order sealing the child's record, upon the filing of a motion. To obtain an order to seal a record of juvenile delinquency, a motion must be filed with the Family Court. Such a motion cannot be filed, however, until the child's sixteenth birthday. If the initial request for sealing is denied, the motion may not be renewed for a year, unless the order of denial permits an earlier renewal. There does not appear to be any time limit for filing such a motion. If the young person does not have a copy of an order sealing or expunging any record of juvenile delinquency, the young person should contact his/her law guardian to request that a motion be filed. Unlike an expungement, a sealed record of juvenile delinquency may be opened by the courts in the event of a subsequent adult conviction.

Q. VI.5 If a parent is arrested for possession of drugs or intent to sell drugs, should a CPS report be filed?

A. Neither the possession or the sale of drugs alone is a basis to suspect that a child may be maltreated. To file a CPS report, one must suspect that the child is a victim of neglect or abuse as defined in the Social Services Law. Of course, when possession involves drug abuse, it is far more likely to also involve child abuse or neglect.

Q. VI.6 In regards to CPS, must the name of the person investigated for child abuse or neglect be removed from the State Registry if the case is unfounded?

Although an unfounded report must be removed from the State Registry, a record is nonetheless retained in the event a future report is filed (as a result in recent changes in Social Service law).

Q. VI.7 In regards to CPS, unfounded cases are kept on file and may be reexamined if another report is made; if another report is not made, is there any potential adverse impact on the client if the case has been unfounded?

A. Elisa's Law requires both State and local Departments of Social Services to retain unfounded reports of child abuse or maltreatment. Under the new law, these reports are no longer expunged. Unfounded reports, however, must be sealed and are only available to DSS in the event of a subsequent investigation involving a child in the same home. These sealed reports are otherwise unavailable. They cannot be referred to when obtaining clearance from the State Central Registry nor are they admissible in court proceedings.

Q. VI.8 What are the current Domestic Violence Laws in New York State (arrest, stalking, etc.)?

A. Various degrees of assault, harassment, and battery between relatives, spouses, people involved in a relationship, or people having a child together are considered domestic violence. Depending on the nature of the relationship, a minor may seek an Order of Protection from the Family Court against a relative who threatens the minor's safety. If the case involves a non-relative who is not a parent to a child they have in common, the only recourse will be Criminal Court.

Q. VI.9 How does one obtain and enforce an Order of Protection?

A. An Order of Protection can be obtained either from the Family Court(for family/household members) or Criminal Court (against non-family members and family members). A Family Offense Petition must be filed to obtain an Order of Protection from Family Court. The clerk at the Family Court or a Domestic Violence Counselor can usually be of assistance in filling out the forms. In the case of an emergency, ask for a Temporary Order of Protection which can be obtained from a judge immediately upon filing the papers, even before a hearing takes place. To obtain such an Order, the "petitioner" (the person signing the petition) must inform the clerk or counselor that there is an immediate emergency and that the person needs to obtain a Temporary Order of Protection before the papers are served.

To get an Order of Protection in Criminal Court, the district attorney has to first bring criminal charges against that person. You can go to the police to file criminal charges.

Once you get an Order of Protection, carry it with you always and give a copy to your local police.

Q. VI.10 What is the average length of jail time for a teen who is arrested for selling/using marijuana?

A. The answer to the question depends upon many factors including: the amount of marijuana, whether it involves a sale or personal use, whether it is possessed in a public place and open to public view or burning, and the prior record (if any) of the young person. Judges have discretion in sentencing for the possession and sale of marijuana. Sentences range from a violation for which no jail time may be imposed on a first or second offense (for possession of 25 grams or less
of marijuana, not in public view or burning) to a Class C Felony where a judge may order imprisonment for up to six years for possession of over ten pounds. The sale of marijuana, regardless of the amount, is a Class D Felony where the sentence imposed can range from one to seven years. A person may be charged with the sale of marijuana, even when no money is exchanged. Young people under the age of 16 may be adjudicated as a juvenile delinquent in Family Court, where the youth may be sent to a residential facility.

Q. VI.11 What is Statutory Rape? When can/should a CPS report be made and under what conditions is that report accepted? What is the process after a report is made? What responsibilities do the police and/or agency have toward the alleged victim?

A. Statutory rape is a felony involving sexual relations between an adult and a young person under 17 to whom the adult is not married. Because a minor under the age of 17 cannot legally consent to sexual intercourse (unless married to his/her partner), a sexual relationship between an adult and a minor, regardless of the circumstances, is referred to as statutory rape. The seriousness of the crime depends upon the age of the adult and the minor, ranging from: rape in the third degree when the adult is over 21 and has relations with someone between 14 and under 17; rape in the second degree when the adult is over 18 and has sexual relations with someone less than 14 and over 11; or rape in the first degree when a male engages in sexual intercourse with someone less than 11, with someone who is physically helpless or uses force. Permissible penalties for statutory rape range from 6 to 25 years (for rape in the first degree) to 1 to 4 years.

Staff of runaway/homeless youth programs are not required to report cases of statutory rape unless it involves family members. In such a case, anyone deemed to be a mandated reporter (under the Social Services Law) would be required to report the matter to the Department of Social Services as suspected child abuse, assuming the victim is under the age of 18. Other than those cases which require reporting, staff of the program are required to keep such information confidential unless the victim requests assistance. In such cases, the police should be contacted if the matter involves a crime, which will precipitate an investigation. In many counties, there are special sex crime units. In any case, the matter should be handled with great sensitivity toward the victim.

Q. VI.12 What does "Y.O. status" mean?

A. In New York State, a person over the age of 16 is tried as an adult for any crime committed. However, young people between the ages of 16-19 may be eligible for the status of Youthful Offender (YO) (Criminal Procedure Law 720.10). This means they can have their criminal conviction sealed (it will not show up on their adult records). Youthful Offender Status is not automatic and must be requested by the person's lawyer. Whether YO status is granted by the court depends upon the nature of the crime committed and the individual's record.

Q. VI.13 What is a "R.A.P. Sheet"? How does a young person get one?

A. R.A.P. stands for Record of Arrests. It may also be called a NYSID (New York State Identification Document) or a Yellow Sheet. It is the official record of a person's prior arrests and convictions.

Q. VI.14 If a mandated reporter calls the CPS Hotline, does that call have to be accepted?

A. A case will not be accepted by the Hotline unless the facts presented constitute alleged abuse, neglect or maltreatment as defined in the Social Services Law. (This is true whether the call is made anonymously or by a mandated reporter.) Guidelines on what constitutes alleged abuse or neglect are available from the State Central Registry of the Office of Children and Family Services.

Q. VI.15 What recourse does an abused youth have when CPS will not respond?

A. A young person can try to obtain an Order of Protection from the Family Court (see VI.9). There is at least one case in New York which holds that a young person can sue the Department of Social Services for refusing to take action on the individual's behalf.

Q. VI.16 At what age does CPS no longer have responsibility for a youth? 16? 18? 21?

A. CPS's authority ends when a young person reaches the age of 18. For a young person over the age of 18, abuse may involve a criminal matter. When there are younger siblings in the house, however, CPS may be called in to investigate on behalf of younger children even when the victim is over 18 years old.

Q. VI.17 When a young person's probation goals have been met, and the probation time is coming to an end, can a parent seek to have the period of probation extended?

A. Suspended judgements and probation may be extended only when the Family Court finds "exceptional circumstances" exist that warrant such extension.

Empire State Coalition
P.O. Box 25312
Brooklyn, NY 11202-5312
Phone: (718) 237-2722

Email: info@EmpireStateCoalition.org



Copyright 2009 All Rights Reserved