NY State Senate Bill 2013-S4519

Senate Bill S4519

2013-2014 Legislative Session

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

download bill text pdf

Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to children and families
Apr 05, 2013	referred to children and families

2013-S4519 (ACTIVE) - Details

Current Committee:: Senate Children And Families
Law Section:: Family Court Act
Laws Affected:: Amd §355.1, Fam Ct Act

2013-S4519 (ACTIVE) - Summary

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

2013-S4519 (ACTIVE) - Sponsor 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.

2013-S4519 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4519

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09328-01-3

S. 4519                             2

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

S. 4519                             3

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

S. 4519                             4

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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