Bill S4519-2013

Relates to the transfers of juvenile delinquents placed by the family court in conjunction with a "close to home" initiative

Relates to the transfers of juvenile delinquents placed by the family court in conjunction with a "close to home" initiative.

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  • Jan 8, 2014: REFERRED TO CHILDREN AND FAMILIES
  • Apr 5, 2013: REFERRED TO CHILDREN AND FAMILIES

Memo

BILL NUMBER:S4519

TITLE OF BILL: An act to amend the family court act, in relation to transfers of juvenile delinquents placed by the family court in conjunction with a "close to home" initiative

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Family Court Advisory and Rules Committee.

With enactment of the "Close to Home" initiative as part of the Fiscal Year 20122013 State Budget, New York has embarked upon an exciting, ambitious reform of its juvenile justice system. See L. 2012, c. 57, Part G. Instead of placing juveniles from New York City in distant facilities operated by the State Office of Children and Family Services (OCFS), juveniles in all but the most serious cases must be placed in or near the City in facilities operated under contract with the New York City Administration for Children's Services (ACS). Those youth already placed with OCFS are subject to transfer to the custody of ACS upon petitions filed in Family Court. The first phase of the "Close to Home" initiative, implemented as of September 1, 2012, covered youth already placed or facing placement in a "non-secure" level of care, while the second phase, scheduled for 2013, will cover youth in or facing placement in a "limited-secure" level of care. As ACS indicated in its "Vision Statement" for the new program:

The City will build on its successful development of programming that decreases recidivism and lessens reliance on residential facilities, while maintaining public safety. The City will create a juvenile justice system where all but the most seriously delinquent New York City youth stay closer to home and family. Here, they will receive the individualized services, supports and opportunities they need; and when youth must be placed in a restrictive environment, they will be close to home, aligned to services, family and community supports and be successfully prepared for reentry into their community.

The "Close to Home" statute established expedited processes for the Family Court proceedings required for transfers of youth from the custody of OCFS to the custody of ACS during the first 90 days of each of the two phases. The statute further delineated a new judicial process for transfers of youth from the custody of ACS to OCFS for exceptional cases in which a higher level of care is required than that which is offered by ACS through its contracts. On the advice of our Family Court Advisory and Rules Committee, we submit this measure to fill several critical gaps in Family Court Act §355.1, the statutory framework for both types of transfers.

First, this measure would amend Family Court Act §355.1(a) with respect to petitions to transfer juveniles from ACS to OCFS, both in terms of transfers to OCFS for placement in a limited-secure level of care and, once the ACS "Close to Home" initiative includes the limited-secure level of care, transfers to OCFS for placement at a secure level. The measure would add a requirement that the petitioner notify the presentment agency (the New York City Corporation Counsel) and that the agency be afforded an opportunity to be heard on the transfer petition, as is provided to the juvenile, his or her attorney, ACS and OCFS. Further, especially in light of the

requirements for notice and an opportunity to be heard for each of these key participants - and, importantly, the right of the juvenile to effective representation of counsel in preparation for the hearing on the transfer petition - the measure would modify the current requirement of a judicial decision within 72 hours of the filing of the petition to a more realistic time-frame. The measure would afford the parties up to 30 days to be heard on the petition, but if the juvenile is in detention pending the hearing, the parties would have up to ten days to be heard with a possible extension for an additional ten days for good cause. Family Court then would be required to render its decision within ten days of the hearing, exclusive of weekends and holidays.

Second, this measure would amend Family Court Act §355.1(b) with respect to petitions to transfer juveniles from OCFS to ACS. Although the first 90 day period for transfers of juveniles in a non-secure level of care with OCFS to ACS has concluded, the first 90-day period for the transfers of youth in a limited-secure level of care has not yet commenced. Recognizing the need for consistency, the measure amends both paragraphs (1) and (ii) of the subdivision to add a requirement for the petitioner to notify the presentment agency and the social services district, that is, ACS, and afford both agencies an opportunity to be heard along with OCFS, the juvenile and his or her attorney. Especially in light of the addition of a right to be heard for these critically important agencies, the measure modifies the standard for determining a transfer petition to require that it be granted "absent good cause and unless the court determines, and states in its written order, the reasons why continued placement with the office is necessary and consistent with the needs and best interests of the respondent and the need for protection of the community." For transfer petitions filed after the first 90 days of implementation of the respective phase of the initiative, the measure would add a requirement for the petitioner to notify the juvenile's parents or legal guardians.

The importance of notifying the juvenile's parents or legal guardians, the presentment agency and the agency to whom custody is sought to be transferred can not be overstated. The juvenile's parents or legal guardians are essential participants and, arguably, must be notified, because Family Court Act §341.2(3) requires their presence "at any hearing under this article," that is, Article 3 of the Family Court Act, which includes section 355.1.

The presentment agency (in New York City, the corporation counsel) is required by Family Court Act §355.2 to be notified of all post-dispositional motions made pursuant to §355.1. Clearly, transfer petitions filed pursuant to §355.1 should also trigger the same requirement. Signifying the increasingly integral functions that prosecutors fulfill at all phases of juvenile delinquency proceedings, Family Court Act §310.1 provides that only a presentment agency can present a juvenile delinquency petition and Family Court Act §§350.4(3) and (6) delineates an important role for the presentment agency in presenting evidence and making recommendations at dispositional hearings. Importantly, standards of the National District Attorneys Association regarding juvenile delinquency prosecutions indicate that "the prosecutor should take an active role

in the dispositional hearing." See National District Attorneys Association, National Prosecution Standards §4-11.10 (3d Ed., NH).

Finally, the need for ACS to be notified of petitions regarding juveniles who may be coming in to their care is obvious, since the agency is responsible for planning for their care and should be involved at all phases of their transition. Family Court Act §§355.1(a)(i) and (ii) requires that OCFS be notified and afforded an opportunity to be heard regarding petitions for transfers of youth from ACS into their care. Family Court Act §§355.1(b)(i) and (ii) should require no less in terms of notice and an opportunity to be heard for ACS, the potential recipient agency for transfers of youth from OCFS.

This measure, which would have no meaningful fiscal impact upon the State, would take effect immediately.

Legislative History: None. New proposal.


Text

STATE OF NEW YORK ________________________________________________________________________ 4519 2013-2014 Regular Sessions IN SENATE April 5, 2013 ___________
Introduced by Sen. FELDER -- (at request of the Office of Court Adminis- tration) -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families AN ACT to amend the family court act, in relation to transfers of juve- nile delinquents placed by the family court in conjunction with a "close to home" initiative THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 2 of section 355.1 of the family court act, as amended by section 8 of subpart A of part G of chapter 57 of the laws of 2012, is amended to read as follows: 2. An order issued under section 353.3, may, upon a showing of a substantial change of circumstances, be set aside, modified, vacated or terminated upon motion of the commissioner of social services or the office of children and family services with whom the respondent has been placed. (a)(i) For a social services district that only has an approved plan to implement programs for juvenile delinquents placed in non-secure settings as part of an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, beginning on the effective date of that plan, if the district determines that placement in a limited secure facility is appropriate and consistent with the need for protection of the community and the needs and best interests of the respondent placed into its care, the social services district shall file a petition to transfer the custody of the respondent to the office of children and family services, and shall provide a copy of such petition to such office, the respondent, the attorney for the respondent, THE PRESENTMENT AGENCY and the respond- ent's parent OR PARENTS or legal guardian OR GUARDIANS. THE COURT, AFTER NOTICE HAVING BEEN GIVEN, SHALL GIVE THE OFFICE, THE RESPONDENT AND HIS OR HER ATTORNEY AND THE PRESENTMENT AGENCY AN OPPORTUNITY TO BE HEARD
WITHIN THIRTY DAYS OR, IF THE RESPONDENT IS IN DETENTION PENDING SUCH MOTION, WITHIN TEN DAYS OF THE FILING OF THE PETITION, UNLESS UPON GOOD CAUSE THE PETITION MAY BE ADJOURNED FOR AN ADDITIONAL PERIOD NOT TO EXCEED TEN DAYS. The court shall render a decision whether the [juve- nile delinquent] RESPONDENT should be transferred to the office within [seventy-two hours] TEN DAYS OF THE HEARING, excluding weekends and public holidays. The family court shall[, after allowing the office of children and family services and the attorney for the respondent, after notice having been given, an opportunity to be heard,] grant such a petition only if the court determines, and states in its written order, the reasons why a limited secure placement is necessary and consistent with the needs and best interests of the respondent and the need for protection of the community. (ii) For a social services district with an approved plan or approved plans that cover juvenile delinquents placed in non-secure or in non-se- cure and in limited secure settings as part of an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, beginning on the effective date of the plan, if the district determines that a secure level of placement is appropriate and consistent with the need for protection of the commu- nity and the needs and best interests of the respondent placed into its care, the social services district shall file a petition to transfer the custody of the respondent to the office of children and family services, and shall provide a copy of such petition to such office, the respond- ent, the attorney for the respondent, THE PRESENTMENT AGENCY and the respondent's parent OR PARENTS or legal guardian OR GUARDIANS. THE COURT, AFTER NOTICE HAVING BEEN GIVEN, SHALL GIVE THE OFFICE, THE RESPONDENT AND HIS OR HER ATTORNEY AND THE PRESENTMENT AGENCY AN OPPOR- TUNITY TO BE HEARD WITHIN THIRTY DAYS OR, IF THE RESPONDENT IS IN DETENTION PENDING SUCH MOTION, WITHIN TEN DAYS OF THE FILING OF THE PETITION, UNLESS UPON GOOD CAUSE THE PETITION MAY BE ADJOURNED FOR AN ADDITIONAL PERIOD NOT TO EXCEED TEN DAYS. The court shall render a decision whether the youth should be transferred within [seventy-two hours] TEN DAYS OF THE HEARING, excluding weekends and public holidays. The family court shall[, after allowing the office of children and fami- ly services and the attorney for the respondent, after notice having been given, an opportunity to be heard,] grant such a petition only if the court determines, and states in its written order, that the youth needs a secure level of placement because: (A) the respondent has been shown to be exceptionally dangerous to himself or herself or to other persons. Exceptionally dangerous behavior may include, but is not limited to, one or more serious intentional assaults, sexual assaults or setting fires; or (B) the respondent has demonstrated by a pattern of behavior that he or she needs a more structured setting and the social services district has considered the appropriateness and availability of a transfer to an alternative non-secure or limited secure facility. Such behavior may include, but is not limited to: disruptions in facility programs; continuously and maliciously destroying property; or, repeatedly commit- ting or inciting other youth to commit assaultive or destructive acts. (iii) The court may order that the respondent be housed in a local secure detention facility on an interim basis pending its final ruling on the petition filed pursuant to this paragraph. (b) The following provisions shall apply if the office of children and family services files a petition with a family court in a social services district with an approved juvenile justice services close to
home initiative pursuant to section four hundred four of the social services law to transfer, within the first ninety days that such plan is effective, to such district a respondent placed in the office's care pursuant to either section 353.3 or 353. 5 of this part: (i) Such a petition shall be provided to the respondent, the attorney for the respondent, THE SOCIAL SERVICES DISTRICT, THE PRESENTMENT AGENCY and the respondent's parent or PARENTS OR legal guardian OR GUARDIANS. If the district only has an approved plan that covers juvenile delin- quents placed in non-secure settings, the family court shall grant such a petition, without a hearing, unless the attorney for the respondent, after notice, objects to the transfer on the basis that the respondent needs to be placed with the office or the family court determines that there is insufficient information in the petition to grant the transfer without a hearing. The family court shall grant the petition ABSENT GOOD CAUSE AND unless the court determines, and states in its written order, the reasons why CONTINUED placement with the office is necessary and consistent with the needs and best interests of the respondent and the need for protection of the community. (ii) If the district has an approved plan or approved plans that cover juvenile delinquents placed in non-secure and in limited secure settings, for the first ninety days that the plan that covers juvenile delinquents in limited secure settings is effective, the family court shall grant such a petition, without a hearing, unless the attorney for the respondent, after notice, objects to the transfer on the basis that the respondent needs to be placed with the office or the family court determines that there is insufficient information in the petition to grant the transfer without a hearing. The family court shall grant the petition ABSENT GOOD CAUSE AND unless the court determines, and states in its written order, the reasons why CONTINUED placement with the office is necessary and consistent with the needs and best interests of the respondent and the need for protection of the community. (c) Beginning ninety-one days after the effective date a social services district's plan to implement programs for juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, if the office of children and family services files a petition to transfer to such district a respondent placed in the office's care pursuant to either section 353.3 or 353.5 of this part from a family court in such a social services district, the office shall provide a copy of the petition to the social services district, the attorney for the respondent, THE RESPONDENT'S PARENT OR PARENTS OR LEGAL GUARDIAN OR GUARDIANS and the presentment agency. (i) If the district only has an approved plan that covers juvenile delinquents placed in non-secure settings, the family court shall, after allowing the social services district, the attorney for the respondent and the presentment agency an opportunity to be heard, grant a petition filed pursuant to this subparagraph unless the court determines, and states in its written order, the reasons why a secure or limited secure placement is necessary and consistent with the needs and best interests of the respondent and the need for protection of the community. (ii) If the district has an approved plan or approved plans that cover juvenile delinquents placed in non-secure and limited secure settings, beginning ninety-one days after the effective date of the plan that covers juvenile delinquents placed in limited secure settings, the fami- ly court, after allowing the social services district, the attorney for the respondent and the presentment agency an opportunity to be heard, shall grant a petition filed pursuant to this subparagraph, unless the
court determines, and states in its written order, the reasons why a secure placement is necessary and consistent with the needs and best interests of the respondent and the need for protection of the communi- ty. S 2. This act shall take effect immediately; provided, however, the amendments to subdivision 2 of section 355.1 of the family court act made by section one of this act shall not affect the expiration and reversion of such subdivision and shall expire and be deemed repealed therewith.

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