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Despite a statutory requirement that petitions to classify unruly teens as persons in need of supervision be filed before they turn 18, the Family Court has the power to keep those youths on probation past that age, a state appeals court has ruled. In Matter of Matthew L., 2008-04382, the Appellate Division, Second Department, rejected a challenge to the jurisdiction of a Family Court judge in Suffolk County brought by a youth who turned 18 five days after he had been placed on probation. The teen was found to be a person in need of supervision (PINS) about 10 weeks earlier. The Second Department decision appears on page 29 of the print edition of today’s Law Journal. Relying on the rationale set forth in earlier court opinions, Justice John M. Leventhal ( See Profile) wrote for a unanimous court that it is “important” that the Family Court have “the option of involuntarily placing a teenager on probation after the age of 18, where as here, it is clear that the child has been generally noncompliant with his probation officer.” Children under 18 can be placed under court supervision if they are found to be “incorrigible, ungovernable or habitually disobedient” and beyond the lawful control of their parent or guardian, under Family Court Act §712(a). The teen, identified in the opinion as Matthew L., contended that the Family Court had no power to impose a sanction for violations after his 18th birthday on March 2, 2008. He was cited for violating the terms of his probation on both March 6 and April 1, 2008. In rejecting the challenge, Justice Leventhal noted that the §757 of Family Court Act, which sets forth the terms of probation in PINS proceedings, does not place restrictions on continuing probation past age 18. Family Court Act §757(a) sets the maximum period of probation at one year, but allows a Family Court judge to extend probation for a second year in “exceptional circumstances.” The statute does not explicitly address whether a sanction can extend beyond the youth’s 18th birthday. Justice Leventhal looked to a prior Second Department ruling regarding an analogous section of the Family Court Act in finding that the age limitation should not be imported to the provision authorizing probation for up to two years for adolescents found to be PINS. In 2002 in Matter of Jude F., 291 AD2d 165, the appellate court interpreted a section the Family Court Act dealing with the question of whether teens who had been found to be juvenile delinquents could be “placed” in governmental custody despite a requirement that juvenile delinquency petitions be filed prior to turning 16. The relevant statute, Family Court Act §353.3, provides that “successive extensions of placements under this section may be granted but no placement may be made or continued beyond the [teenager's] 18th birthday without the child’s consent.” Although the statute stated “no placement may be made,” a unanimous panel in Jude F. concluded that the provision, when read in its entirety, referred only to “successive extensions of placement,” not an initial placement. The Jude F. panel also wrote that to limit the court’s power to order placements beyond a teen’s 18th birthday would “seriously undermine the legislative aim of providing appropriate rehabilitative services, including treatment and education, to older youths who had never been placed in custody…but who may benefit from a period of placement.” The Court of Appeals reached a similar result in Matter of Robert J., 2 NY3d 339 (2004), relying on Jude F., Justice Leventhal noted. Analyzing the Family Court’s authority to order youths to serve probation terms beyond their 18th birthdays in light of those two rulings, Justice Leventhal concluded, “the Legislature was very specific in delineating the duration and use of dispositional alternatives beyond the 18th birthday.” “The Legislature has not placed any restrictions on the imposition of probation beyond the 18th birthday,” he concluded. The ruling affirmed a May 2008 ruling of Suffolk County Family Court Judge Andrew G. Tarantino Jr. Joining in the appellate opinion were Justices Robert A. Spolizno ( See Profile) , Mark C. Dillon ( See Profile) and Edward D. Carni ( See Profile) . Matthew L. was represented by Elizabeth A. Justesen, of the Legal Aid Society of Suffolk County. Brian B. Mulholland of the Suffolk County Attorney’s Office handled the PINS petition. Neither attorney responded to a request for comment. @

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