- Consolidated Laws - Family Court
PART 5
THE DISPOSITIONAL HEARING
Section 350.1. Time of dispositional hearing.
350.2. Order of removal.
350.3. Dispositional hearings; evidence and required quantum of
proof - appearance of presentment agency.
350.4. Order of procedure.
351.1. Probation, investigation and diagnostic assessment.
352.1. Findings.
352.2. Order of disposition.
352.3. Order of protection.
353.1. Conditional discharge.
353.2. Probation.
353.3. Placement.
353.4. Transfer of certain juvenile delinquents.
353.5. Designated felony acts; restrictive placement.
353.6. Restitution.
354.1. Retention and destruction of fingerprints of persons
alleged to be juvenile delinquents.
354.2. Duties of counsel or law guardian.
355.1. New hearing; staying, modifying or terminating an order.
355.2. Motion procedures.
355.3. Extension of placement.
355.4. Provisions for routine medical, dental and mental health
services and treatment.
355.5 Permanency hearing.
S 350.1. Time of dispositional hearing. 1. If the respondent is
detained and has not been found to have committed a designated felony
act the dispositional hearing shall commence not more than ten days
after the entry of an order pursuant to subdivision one of section
345.1, except as provided in subdivision three.
2. In all other cases, the dispositional hearing shall commence not
more than fifty days after entry of an order pursuant to subdivision one
of section 345.1, except as provided in subdivision three.
3. The court may adjourn the dispositional hearing:
(a) on its own motion or on motion of the presentment agency for good
cause shown for not more than ten days; or
(b) on motion by the respondent for good cause shown for not more than
thirty days.
4. The court shall state on the record the reason for any adjournment
of the dispositional hearing.
5. Successive motions to adjourn a dispositional hearing beyond the
limits enumerated in subdivision one or two shall not be granted in the
absence of a showing, on the record, of special circumstances; special
circumstances shall not include calendar congestion or the status of the
court`s docket or backlog.
S 350.2. Order of removal. 1. Where the proceeding has been commenced
by the filing of an order of removal pursuant to a direction authorized
by sections 220.10, 310.85 and 330.25 of the criminal procedure law, the
date of filing in the family court shall be deemed for purposes of
section 350.1 to be the date of the entry of an order pursuant to
subdivision one of section 345.1.
2. The clerk of court shall calendar an appearance to be held within
seven days from the date the order of removal was filed. At such
appearance the court shall schedule a dispositional hearing in
accordance with section 350.1 and determine such other issues as may
properly be before it.
S 350.3. Dispositional hearings; evidence and required quantum of
proof - appearance of presentment agency. 1. Only evidence that is
material and relevant may be admitted during a dispositional hearing.
2. An adjudication at the conclusion of a dispositional hearing must
be based on a preponderance of the evidence.
3. The presentment agency shall appear at the dispositional hearing.
S 350.4. Order of procedure. The order of the dispositional hearing
shall be as follows:
1. The court, with the consent of the parties, may direct the
probation service to summarize its investigation report if one has been
prepared and, in its discretion, deliver any further statement
concerning the advisability of specific dispositional alternatives.
2. The court may in its discretion call witnesses, including the
preparer of probation reports or diagnostic studies, to offer evidence
concerning the advisability of specific dispositional alternatives. Such
witnesses may be cross-examined by the presentment agency and the
respondent.
3. The presentment agency may call witnesses to offer such evidence,
including the preparer of a probation report or a diagnostic study.
4. The respondent may call witnesses, to offer such evidence,
including the preparer of a probation report or a diagnostic study.
5. The court may permit the presentment agency or respondent to offer
such rebuttal or surrebuttal evidence as it may deem appropriate.
6. The presentment agency may deliver a statement concerning the
advisability of specific dispositional alternatives.
7. The respondent may deliver such a statement.
8. The court shall then permit rebuttal statements by both the
presentment agency and the respondent.
9. The court shall then consider the case and enter a dispositional
order.
S 351.1. Probation, investigation and diagnostic assessment. 1.
Following a determination that a respondent has committed a designated
felony act and prior to the dispositional hearing, the judge shall order
a probation investigation and a diagnostic assessment. For the purposes
of this article, the probation investigation shall include, but not be
limited to, the history of the juvenile including previous conduct, the
family situation, any previous psychological and psychiatric reports,
school adjustment, previous social assistance provided by voluntary or
public agencies and the response of the juvenile to such assistance. For
the purposes of this article, the diagnostic assessment shall include,
but not be limited to, psychological tests and psychiatric interviews to
determine mental capacity and achievement, emotional stability and
mental disabilities. It shall include a clinical assessment of the
situational factors that may have contributed to the act or acts. When
feasible, expert opinion shall be rendered as to the risk presented by
the juvenile to others or himself, with a recommendation as to the need
for a restrictive placement.
2. Following a determination that a respondent committed a crime and
prior to the dispositional hearing, the court shall order a probation
investigation and may order a diagnostic assessment.
3. A child shall not be placed in accord with section 353.3 unless the
court has ordered a probation investigation prior to the dispositional
hearing; a child shall not be placed in accord with section 353.4 unless
the court has ordered a diagnostic assessment prior to such hearing.
4. When it appears that such information would be relevant to the
findings of the court or the order of disposition, each investigation
report prepared pursuant to this section shall contain a victim impact
statement which shall include an analysis of the victim`s version of the
offense, the extent of injury or economic loss or damage to the victim
and the views of the victim relating to disposition including the amount
of restitution sought by the victim, subject to availability of such
information. In the case of a homicide or where the victim is unable to
assist in the preparation of the victim impact statement, the
information may be acquired from the victim`s family. Nothing contained
in this section shall be interpreted to require that a victim or his or
her family supply information for the preparation of an investigation
report.
5. (a) All diagnostic assessments and probation investigation reports
shall be submitted to the court and made available by the court for
inspection and copying by the presentment agency and the respondent at
least five court days prior to the commencement of the dispositional
hearing. All such reports shall be made available by the court for
inspection and copying by the presentment agency and the respondent in
connection with any appeal in the case.
(b) The victim impact statement shall be made available to the victim
or the victim`s family by the presentment agency prior to sentencing.
6. All reports or memoranda prepared or obtained by the probation
service for the purpose of a dispositional hearing shall be deemed
confidential information furnished to the court and shall be subject to
disclosure solely in accordance with this section or as otherwise
provided for by law. Except as provided under section 320.5 such
reports or memoranda shall not be furnished to the court prior to the
entry of an order pursuant to section 345.1.
7. The probation services which prepare the investigation reports
shall be responsible for the collection and transmission to the state
division of probation and correctional alternatives, of data on the
number of victim impact statements prepared, pursuant to regulations of
the division. Such information shall be transmitted to the crime
victims board and included in the board`s annual report pursuant to
subdivision twenty of section six hundred twenty-three of the executive
law.
S 352.1. Findings. 1. If, upon the conclusion of the dispositional
hearing, the court determines that the respondent requires supervision,
treatment or confinement, the court shall enter a finding that such
respondent is a juvenile delinquent and order an appropriate disposition
pursuant to section 352.2.
2. If, upon the conclusion of the dispositional hearing, the court
determines that the respondent does not require supervision, treatment
or confinement, the petition shall be dismissed.
S 352.2. Order of disposition. 1. Upon the conclusion of the
dispositional hearing, the court shall enter an order of disposition:
(a) conditionally discharging the respondent in accord with section
353.1; or
(b) putting the respondent on probation in accord with section 353.2;
or
(c) continuing the proceeding and placing the respondent in accord
with section 353.3; or
(d) placing the respondent in accord with section 353.4; or
(e) continuing the proceeding and placing the respondent under a
restrictive placement in accord with section 353.5.
2. (a) In determining an appropriate order the court shall consider
the needs and best interests of the respondent as well as the need for
protection of the community. If the respondent has committed a
designated felony act the court shall determine the appropriate
disposition in accord with section 353.5. In all other cases the court
shall order the least restrictive available alternative enumerated in
subdivision one which is consistent with the needs and best interests of
the respondent and the need for protection of the community.
(b) In an order of disposition entered pursuant to section 353.3 or
353.4 of this chapter, or where the court has determined pursuant to
section 353.5 of this chapter that restrictive placement is not
required, which order places the respondent with the commissioner of
social services or with the office of children and family services for
placement with an authorized agency or class of authorized agencies or
in such facilities designated by the office of children and family
services as are eligible for federal reimbursement pursuant to title
IV-E of the social security act, the court in its order shall determine
(i) that continuation in the respondent`s home would be contrary to the
best interests of the respondent; or in the case of a respondent for
whom the court has determined that continuation in his or her home would
not be contrary to the best interests of the respondent, that
continuation in the respondent`s home would be contrary to the need for
protection of the community; (ii) that where appropriate, and where
consistent with the need for protection of the community, reasonable
efforts were made prior to the date of the dispositional hearing to
prevent or eliminate the need for removal of the respondent from his or
her home, or if the child was removed from his or her home prior to the
dispositional hearing, where appropriate and where consistent with the
need for safety of the community, whether reasonable efforts were made
to make it possible for the child to safely return home. If the court
determines that reasonable efforts to prevent or eliminate the need for
removal of the child from the home were not made but that the lack of
such efforts was appropriate under the circumstances, or consistent with
the need for protection of the community, or both, the court order shall
include such a finding; and (iii) in the case of a child who has
attained the age of sixteen, the services needed, if any, to assist the
child to make the transition from foster care to independent living.
(c) For the purpose of this section, when an order is entered
pursuant to section 353.3 or 353.4 of this article, reasonable efforts
to prevent or eliminate the need for removing the respondent from the
home of the respondent or to make it possible for the respondent to
return safely to the home of the respondent shall not be required where
the court determines that:
(1) the parent of such respondent has subjected the respondent to
aggravated circumstances, as defined in subdivision fifteen of section
301.2 of this article;
(2) the parent of such child has been convicted of (i) murder in the
first degree as defined in section 125.27 or murder in the second degree
as defined in section 125.25 of the penal law and the victim was another
child of the parent; or (ii) manslaughter in the first degree as defined
in section 125.20 or manslaughter in the second degree as defined in
section 125.15 of the penal law and the victim was another child of the
parent, provided, however, that the parent must have acted voluntarily
in committing such crime;
(3) the parent of such child has been convicted of an attempt to
commit any of the foregoing crimes, and the victim or intended victim
was the child or another child of the parent; or has been convicted of
criminal solicitation as defined in article one hundred, conspiracy as
defined in article one hundred five or criminal facilitation as defined
in article one hundred fifteen of the penal law for conspiring,
soliciting or facilitating any of the foregoing crimes, and the victim
or intended victim was the child or another child of the parent;
(4) the parent of such respondent has been convicted of assault in the
second degree as defined in section 120.05, assault in the first degree
as defined in section 120.10 or aggravated assault upon a person less
than eleven years old as defined in section 120.12 of the penal law, and
the commission of one of the foregoing crimes resulted in serious
physical injury to the respondent or another child of the parent;
(5) the parent of such respondent has been convicted in any other
jurisdiction of an offense which includes all of the essential elements
of any crime specified in subparagraph two, three or four of this
paragraph, and the victim of such offense was the respondent or another
child of the parent; or
(6) the parental rights of the parent to a sibling of such respondent
have been involuntarily terminated;
unless the court determines that providing reasonable efforts would be
in the best interests of the child, not contrary to the health and
safety of the child, and would likely result in the reunification of the
parent and the child in the foreseeable future. The court shall state
such findings in its order.
If the court determines that reasonable efforts are not required
because of one of the grounds set forth above, a permanency hearing
shall be held pursuant to section 355.5 of this article within thirty
days of the finding of the court that such efforts are not required.
The social services official or the office of children and family
services, where the respondent was placed with such office, shall
subsequent to the permanency hearing make reasonable efforts to place
the respondent in a timely manner and to complete whatever steps are
necessary to finalize the permanent placement of the respondent as set
forth in the permanency plan approved by the court. If reasonable
efforts are determined by the court not to be required because of one of
the grounds set forth in this paragraph, the social services official
may file a petition for termination of parental rights in accordance
with section three hundred eighty-four-b of the social services law.
(d) For the purposes of this section, in determining reasonable
efforts to be made with respect to the respondent, and in making such
reasonable efforts, the respondent`s health and safety shall be the
paramount concern.
(e) For the purpose of this section, a sibling shall include a
half-sibling.
3. The order shall state the court`s reasons for the particular
disposition, including, in the case of a restrictive placement pursuant
to section 353.5, the specific findings of fact required in such
section.
S 352.3. Order of protection. (1) Upon the issuance of an order
pursuant to section 315.3 or the entry of an order of disposition
pursuant to section 352.2, a court may enter an order of protection
against any respondent for good cause shown. The order may require that
the respondent: (a) stay away from the home, school, business or place
of employment of the victims of the alleged offense; or (b) refrain from
harassing, intimidating, threatening or otherwise interfering with the
victim or victims of the alleged offense and such members of the family
or household of such victim or victims as shall be specifically named by
the court in such order.
(2) An order of protection shall remain in effect for the period
specified by the court, but shall not exceed the period of time
specified in any order of disposition or order adjourning a proceeding
in contemplation of dismissal.
S 353.1. Conditional discharge. 1. The court may conditionally
discharge the respondent if the court, having regard for the nature and
circumstances of the crime and for the history, character and condition
of the respondent, is of the opinion that consistent with subdivision
two of section 352.2, neither the public interest nor the ends of
justice would be served by a placement and that probation supervision is
not appropriate.
2. When the court orders a conditional discharge the respondent shall
be released with respect to the finding upon which such order is based
without placement or probation supervision but subject, during the
period of conditional discharge, to such conditions enumerated in
subdivision two of section 353.2, as the court may determine. The court
shall order the period of conditional discharge authorized by
subdivision three and shall specify the conditions to be complied with.
The court may modify or enlarge the conditions at any time prior to the
expiration or termination of the period of conditional discharge. Such
action may not, however, be taken unless the respondent is personally
present, except that the respondent need not be present if the
modification consists solely of the elimination or relaxation of one or
more conditions.
3. The maximum period of a conditional discharge shall not exceed one
year.
4. The respondent must be given a written copy of the conditions at
the time a conditional discharge is ordered or modified, provided,
however, that whenever the respondent has not been personally present at
the time of a modification, the court shall notify the respondent in
writing within twenty days after such modification, specifying the
nature of the elimination or relaxation of any condition and the
effective date thereof. A copy of such conditions must be filed with and
become part of the record of the case.
5. A finding that the respondent committed an additional crime after a
conditional discharge has been ordered and prior to expiration and
termination of the period of such order constitutes a ground for
revocation of such order irrespective of whether such fact is specified
as a condition of the order.
S 353.2. Probation. 1. The court may order a period of probation if
the court, having regard for the nature and circumstances of the crime
and the history, character and condition of the respondent, is of the
opinion that:
(a) placement of respondent is not or may not be necessary;
(b) the respondent is in need of guidance, training or other
assistance which can be effectively administered through probation; and
(c) such disposition is consistent with the provisions of subdivision
two of section 352.2.
2. When ordering a period of probation or a conditional discharge
pursuant to section 353.1, the court may, as a condition of such order,
require that the respondent:
(a) attend school regularly and obey all rules and regulations of the
school;
(b) obey all reasonable commands of the parent or other person legally
responsible for the respondent`s care;
(c) abstain from visiting designated places or associating with named
individuals;
(d) avoid injurious or vicious activities;
(e) co-operate with a mental health, social services or other
appropriate community facility or agency to which the respondent is
referred;
(f) make restitution or perform services for the public good pursuant
to section 353.6, provided the respondent is over ten years of age;
(g) except when the respondent has been assigned to a facility in
accordance with subdivision four of section five hundred four of the
executive law, in cases wherein the record indicates that the
consumption of alcohol by the respondent may have been a contributing
factor, attend and complete an alcohol awareness program established
pursuant to section 19.25 of the mental hygiene law; and
(h) comply with such other reasonable conditions as the court shall
determine to be necessary or appropriate to ameliorate the conduct which
gave rise to the filing of the petition or to prevent placement with the
commissioner of social services or the division for youth.
3. When ordering a period of probation, the court may, as a condition
of such order, further require that the respondent:
(a) meet with a probation officer when directed to do so by that
officer and permit the officer to visit the respondent at home or
elsewhere;
(b) permit the probation officer to obtain information from any person
or agency from whom respondent is receiving or was directed to receive
diagnosis, treatment or counseling;
(c) permit the probation officer to obtain information from the
respondent`s school;
(d) co-operate with the probation officer in seeking to obtain and in
accepting employment, and supply records and reports of earnings to the
officer when requested to do so;
(e) obtain permission from the probation officer for any absence from
respondent`s residence in excess of two weeks; and
(f) with the consent of the division for youth, spend a specified
portion of the probation period, not exceeding one year, in a non-secure
facility provided by the division for youth pursuant to article
nineteen-G of the executive law.
4. A finding that the respondent committed an additional crime after
probation supervision has been ordered and prior to expiration or
termination of the period of such order constitutes a ground for
revocation of such order irrespective of whether such fact is specified
as a condition of such order.
5. The respondent must be given a written copy of the conditions at
the time probation supervision is ordered. A copy of such conditions
must be filed with and become part of the record of the case.
6. The maximum period of probation shall not exceed two years. If the
court finds at the conclusion of the original period and after a hearing
that exceptional circumstances require an additional year of probation,
the court may continue the probation for an additional year.
S 353.3. Placement. 1. In accordance with section 352.2, the court may
place the respondent in his own home or in the custody of a suitable
relative or other suitable private person or the commissioner of social
services or the division for youth pursuant to article nineteen-G of the
executive law, subject to the orders of the court.
2. Where the respondent is placed with the commissioner of social
services, the court may direct the commissioner to place him with an
authorized agency or class of authorized agencies. Unless the
dispositional order provides otherwise, the court so directing shall
include one of the following alternatives to apply in the event that the
commissioner is unable to so place the respondent:
(a) the commissioner shall apply to the court for an order to stay,
modify, set aside, or vacate such directive pursuant to the provisions
of section 355.1; or
(b) the commissioner shall return the respondent to the family court
for a new dispositional hearing and order.
3. Where the respondent is placed with the division for youth, the
court shall, unless it directs the division to place him with an
authorized agency or class of authorized agencies pursuant to
subdivision four authorize the division to do one of the following:
(a) place the respondent in a secure facility without a further
hearing at any time or from time to time during the first sixty days of
residency in division for youth facilities. Notwithstanding the
discretion of the division to place the respondent in a secure facility
at any time during the first sixty days of residency in a division for
youth facility, the respondent may be placed in a non-secure facility.
In the event that the division desires to transfer a respondent to a
secure facility at any time after the first sixty days of residency in
division facilities, a hearing shall be held pursuant to subdivision
three of section five hundred four-a of the executive law; or
(b) place the respondent in a limited secure facility. The respondent
may be transferred by the division to a secure facility after a hearing
is held pursuant to section five hundred four-a of the executive law;
provided, however, that during the first twenty days of residency in
division facilities, the respondent shall not be transferred to a secure
facility unless the respondent has committed an act or acts which are
exceptionally dangerous to the respondent or to others; or
(c) place the respondent in a non-secure facility. No respondent
placed pursuant to this paragraph may be transferred by the division for
youth to a secure facility.
4. Where the respondent is placed with the division for youth, the
court may direct the division to place the respondent with an authorized
agency or class of authorized agencies and in the event the division is
unable to so place the respondent or, discontinues the placement with
the authorized agency, the respondent shall be deemed to have been
placed with the division pursuant to paragraph (b) or (c) of subdivision
three of this section. In such cases, the division shall notify the
court, presentment agency, law guardian and parent or other person
responsible for the respondent`s care, of the reason for discontinuing
the placement with the authorized agency and the level and location of
the youth`s placement.
5. If the respondent has committed a felony the initial period of
placement shall not exceed eighteen months. If the respondent has
committed a misdemeanor such initial period of placement shall not
exceed twelve months. If the respondent has been in detention pending
disposition, the initial period of placement ordered under this section
shall be credited with and diminished by the amount of time spent by the
respondent in detention prior to the commencement of the placement
unless the court finds that all or part of such credit would not serve
the needs and best interests of the respondent or the need for
protection of the community.
6. The court may at any time conduct a hearing in accordance with
section 355.1 concerning the need for continuing a placement.
7. The place in which or the person with whom the respondent has been
placed under this section shall submit a report to the court, law
guardian or attorney of record, and presentment agency at the conclusion
of the placement period, except as provided in paragraphs (a) and (b) of
this subdivision. Such report shall include recommendations and such
supporting data as is appropriate. The court may extend a placement
pursuant to section 355.3 of this article.
(a) Where the respondent is placed pursuant to subdivision two or
three of this section and where the agency is not seeking an extension
of the placement pursuant to section 355.3 of this article, such report
shall be submitted not later than thirty days prior to the conclusion of
the placement.
(b) Where the respondent is placed pursuant to subdivision two or
three of this section and where the agency is seeking an extension of
the placement pursuant to section 355.3 of this article and a permanency
hearing pursuant to section 355.5 of this article, such report shall be
submitted not later than sixty days prior to the date on which the
permanency hearing must be held and shall be annexed to the petition for
a permanency hearing and extension of placement.
(c) Where the respondent is placed pursuant to subdivision two or
three of this section, such report shall contain a plan for the release,
or conditional release (pursuant to section five hundred ten-a of the
executive law), of the respondent to the custody of his or her parent or
other person legally responsible, to independent living or to another
permanency alternative as provided in paragraph (d) of subdivision seven
of section 355.5 of this article. If the respondent is subject to
article sixty-five of the education law or elects to participate in an
educational program leading to a high school diploma, such plan shall
include, but not be limited to, the steps that the agency with which the
respondent is placed has taken and will be taking to facilitate the
enrollment of the respondent in a school or educational program leading
to a high school diploma following release, or, if such release occurs
during the summer recess, upon the commencement of the next school term.
If the respondent is not subject to article sixty-five of the education
law and does not elect to participate in an educational program leading
to a high school diploma, such plan shall include, but not be limited
to, the steps that the agency with which the respondent is placed has
taken and will be taking to assist the respondent to become gainfully
employed or enrolled in a vocational program following release.
8. In its discretion, the court may recommend restitution or require
services for the public good pursuant to section 353.6 in conjunction
with an order of placement.
9. If the court places a respondent with the division for youth
pursuant to this section after finding that such child committed a
felony, the court may, in its discretion, further order that such
respondent shall be confined in a residential facility for a minimum
period set by the order, not to exceed six months.
10. A placement pursuant to this section with the commissioner of
social services shall not be directed in any detention facility, but the
court may direct detention pending transfer to a placement authorized
and ordered under this section for no more than thirty days after the
order of placement is made or in a city of one million or more, for no
more than fifteen days after such order of placement is made. Such
direction shall be subject to extension pursuant to subdivision three of
section three hundred ninety-eight of the social services law.
S 353.4. Transfer of certain juvenile delinquents. 1. If at the
conclusion of the dispositional hearing and in accordance with section
352.2 the court finds that the respondent has a mental illness, mental
retardation or developmental disability, as defined in section 1.03 of
the mental hygiene law, which is likely to result in serious harm to
himself or others, the court may issue an order placing such respondent
with the division for youth or, with the consent of the local
commissioner, with a local commissioner of social services. Any such
order shall direct the temporary transfer for admission of the
respondent to the custody of either the commissioner of mental health or
the commissioner of mental retardation and developmental disabilities
who shall arrange the admission of the respondent to the appropriate
facility of the department of mental hygiene. The director of a hospital
operated by the office of mental health may, subject to the provisions
of section 9.51 of the mental hygiene law, transfer a person admitted to
the hospital pursuant to this subdivision to a residential treatment
facility for children and youth, as that term is defined in section 1.03
of the mental hygiene law, if care and treatment in such a facility
would more appropriately meet the needs of the respondent. Persons
temporarily transferred to such custody under this provision may be
retained for care and treatment for a period of up to one year and
whenever appropriate shall be transferred back to the division for youth
pursuant to the provisions of section five hundred nine of the executive
law or transferred back to the local commissioner of social services.
Within thirty days of such transfer back, application shall be made by
the division for youth or the local commissioner of social services to
the placing court to conduct a further dispositional hearing at which
the court may make any order authorized under section 352.2, except that
the period of any further order of disposition shall take into account
the period of placement hereunder. Likelihood to result in serious harm
shall mean (a) substantial risk of physical harm to himself as
manifested by threats or attempts at suicide or serious bodily harm or
other conduct demonstrating he is dangerous to himself or (b) a
substantial risk of physical harm to other persons as manifested by
homicidal or other violent behavior by which others are placed in
reasonable fear of serious bodily harm.
2. (a) Where the order of disposition is for a restrictive placement
under section 353.5 if the court at the dispositional hearing finds that
the respondent has a mental illness, mental retardation or developmental
disability, as defined in section 1.03 of the mental hygiene law, which
is likely to result in serious harm to himself or others, the court may,
as part of the order of disposition, direct the temporary transfer, for
a period of up to one year, of the respondent to the custody of the
commissioner of mental health or of mental retardation and developmental
disabilities who shall arrange for the admission of the respondent to an
appropriate facility under his jurisdiction within thirty days of such
order. The director of the facility so designated by the commissioner
shall accept such respondent for admission.
(b) Persons transferred to the office of mental health or of mental
retardation and developmental disabilities, pursuant to this
subdivision, shall be retained by such office for care and treatment for
the period designated by the court. At any time prior to the expiration
of such period, if the director of the facility determines that the
child is no longer mentally ill or no longer in need of active
treatment, the responsible office shall make application to the family
court for an order transferring the child back to the division for
youth. Not more than thirty days before the expiration of such period,
there shall be a hearing, at which time the court may:
(i) extend the temporary transfer of the respondent for an additional
period of up to one year to the custody of the commissioner of mental
health or the commissioner of mental retardation and developmental
disabilities pursuant to this subdivision; or
(ii) continue the restrictive placement of the respondent in the
custody of the division for youth.
(c) During such temporary transfer, the respondent shall continue to
be under restrictive placement with the division for youth. Whenever the
respondent is transferred back to the division the conditions of the
placement as set forth in section 353.5 shall apply. Time spent by the
respondent in the custody of the commissioner of mental health or the
commissioner of mental retardation and developmental disabilities shall
be credited and applied towards the period of placement.
3. No dispositional hearing at which proof of a mental disability as
defined in section 1.03 of the mental hygiene law is to be offered shall
be completed until the commissioner of mental health or commissioner of
mental retardation and developmental disabilities, as appropriate, have
been notified and afforded an opportunity to be heard at such
dispositional hearing.
4. No order of disposition placing the respondent in accordance with
this section shall be entered except upon clear and convincing evidence
which shall include the testimony of two examining physicians as
provided in section two hundred fifty-one.
5. If the respondent has been in detention pending disposition, the
initial period of placement ordered under this section shall be credited
with and diminished by the amount of time spent by the respondent in
detention prior to the commencement of the placement unless the court
finds that all or part of such credit would not serve the needs and best
interests of the respondent or the need for protection of the community.
S 353.5. Designated felony acts; restrictive placement. 1. Where the
respondent is found to have committed a designated felony act, the order
of disposition shall be made within twenty days of the conclusion of the
dispositional hearing and shall include a finding based on a
preponderance of the evidence as to whether, for the purposes of this
article, the respondent does or does not require a restrictive placement
under this section, in connection with which the court shall make
specific written findings of fact as to each of the elements set forth
in paragraphs (a) through (e) in subdivision two as related to the
particular respondent. If the court finds that a restrictive placement
under this section is not required, the court shall enter any other
order of disposition provided in section 352.2. If the court finds that
a restrictive placement is required, it shall continue the proceeding
and enter an order of disposition for a restrictive placement. Every
order under this section shall be a dispositional order, shall be made
after a dispositional hearing and shall state the grounds for the order.
2. In determining whether a restrictive placement is required, the
court shall consider:
(a) the needs and best interests of the respondent;
(b) the record and background of the respondent, including but not
limited to information disclosed in the probation investigation and
diagnostic assessment;
(c) the nature and circumstances of the offense, including whether any
injury was inflicted by the respondent or another participant;
(d) the need for protection of the community; and
(e) the age and physical condition of the victim.
3. Notwithstanding the provisions of subdivision two, the court shall
order a restrictive placement in any case where the respondent is found
to have committed a designated felony act in which the respondent
inflicted serious physical injury, as that term is defined in
subdivision ten of section 10.00 of the penal law, upon another person
who is sixty-two years of age or more.
4. When the order is for a restrictive placement in the case of a
youth found to have committed a designated class A felony act,
(a) the order shall provide that:
(i) the respondent shall be placed with the division for youth for an
initial period of five years. If the respondent has been in detention
pending disposition, the initial period of placement ordered under this
section shall be credited with and diminished by the amount of time
spent by the respondent in detention prior to the commencement of the
placement unless the court finds that all or part of such credit would
not serve the needs and best interests of the respondent or the need for
protection of the community.
(ii) the respondent shall initially be confined in a secure facility
for a period set by the order, to be not less than twelve nor more than
eighteen months provided, however, where the order of the court is made
in compliance with subdivision five the respondent shall initially be
confined in a secure facility for eighteen months.
(iii) after the period set under clause (ii), the respondent shall be
placed in a residential facility for a period of twelve months.
(iv) the respondent may not be released from a secure facility or
transferred to a facility other than a secure facility during the period
provided in clause (ii) of this paragraph, nor may the respondent be
released from a residential facility during the period provided in
clause (iii). No home visits shall be permitted during the period of
secure confinement set by the court order or one year, whichever is
less, except for emergency visits for medical treatment or severe
illness or death in the family. All home visits must be accompanied home
visits: (A) while a youth is confined in a secure facility, whether such
confinement is pursuant to a court order or otherwise; (B) while a youth
is confined in a residential facility other than a secure facility
within six months after confinement in a secure facility; and (C) while
a youth is confined in a residential facility other than a secure
facility in excess of six months after confinement in a secure facility
unless two accompanied home visits have already occurred. An
"accompanied home visit" shall mean a home visit during which the youth
shall be accompanied at all times while outside the secure or
residential facility by appropriate personnel of the division for youth
designated pursuant to regulations of the director of the division.
(b) Notwithstanding any other provision of law, during the first
twelve months of the respondent`s placement, no motion, hearing or order
may be made, held or granted pursuant to section 355.1; provided,
however, that during such period a motion to vacate the order may be
made pursuant to 355.1, but only upon grounds set forth in section
440.10 of the criminal procedure law.
(c) During the placement or any extension thereof:
(i) after the expiration of the period provided in clause (iii) of
paragraph (a), the respondent shall not be released from a residential
facility without the written approval of the director of the division
for youth or his designated deputy director.
(ii) the respondent shall be subject to intensive supervision whenever
not in a secure or residential facility.
(iii) the respondent shall not be discharged from the custody of the
division for youth, unless a motion therefor under section 355.1 is
granted by the court, which motion shall not be made prior to the
expiration of three years of the placement.
(iv) unless otherwise specified in the order, the division shall
report in writing to the court not less than once every six months
during the placement on the status, adjustment and progress of the
respondent.
(d) Upon the expiration of the initial period of placement, or any
extension thereof, the placement may be extended in accordance with
section 355.3 on a petition of any party or the division for youth after
a dispositional hearing, for an additional period not to exceed twelve
months, but no initial placement or extension of placement under this
section may continue beyond the respondent`s twenty-first birthday.
(e) The court may also make an order pursuant to subdivision two of
section 353.4.
5. When the order is for a restrictive placement in the case of a
youth found to have committed a designated felony act, other than a
designated class A felony act,
(a) the order shall provide that:
(i) the respondent shall be placed with the division for youth for an
initial period of three years. If the respondent has been in detention
pending disposition, the initial period of placement ordered under this
section shall be credited with and diminished by the amount of time
spent by the respondent in detention prior to the commencement of the
placement unless the court finds that all or part of such credit would
not serve the needs and best interests of the respondent or the need for
protection of the community.
(ii) the respondent shall initially be confined in a secure facility
for a period set by the order, to be not less than six nor more than
twelve months.
(iii) after the period set under clause (ii), the respondent shall be
placed in a residential facility for a period set by the order, to be
not less than six nor more than twelve months.
(iv) the respondent may not be released from a secure facility or
transferred to a facility other than a secure facility during the period
provided by the court pursuant to clause (ii), nor may the respondent be
released from a residential facility during the period provided by the
court pursuant to clause (iii). No home visits shall be permitted during
the period of secure confinement set by the court order or one year,
whichever is less, except for emergency visits for medical treatment or
severe illness or death in the family. All home visits must be
accompanied home visits: (A) while a youth is confined in a secure
facility, whether such confinement is pursuant to a court order or
otherwise; (B) while a youth is confined in a residential facility other
than a secure facility within six months after confinement in a secure
facility; and (C) while a youth is confined in a residential facility
other than a secure facility in excess of six months after confinement
in a secure facility unless two accompanied home visits have already
occurred. An "accompanied home visit" shall mean a home visit during
which the youth shall be accompanied at all times while outside the
secure or residential facility by appropriate personnel of the division
for youth designated pursuant to regulations of the director of the
division.
(b) Notwithstanding any other provision of law, during the first six
months of the respondent`s placement, no motion, hearing or order may be
made, held or granted pursuant to section 355.1; provided, however, that
during such period a motion to vacate the order may be made pursuant to
such section, but only upon grounds set forth in section 440.10 of the
criminal procedure law.
(c) During the placement or any extension thereof:
(i) after the expiration of the period provided in clause (iii) of
paragraph (a), the respondent shall not be released from a residential
facility without the written approval of the director of the division
for youth or his designated deputy director.
(ii) the respondent shall be subject to intensive supervision whenever
not in a secure or residential facility.
(iii) the respondent shall not be discharged from the custody of the
division for youth.
(iv) unless otherwise specified in the order, the division shall
report in writing to the court not less than once every six months
during the placement on the status, adjustment and progress of the
respondent.
(d) Upon the expiration of the initial period of placement or any
extension thereof, the placement may be extended in accordance with
section 355.3 upon petition of any party or the division for youth,
after a dispositional hearing, for an additional period not to exceed
twelve months, but no initial placement or extension of placement under
this section may continue beyond the respondent`s twenty-first birthday.
(e) The court may also make an order pursuant to subdivision two of
section 353.4.
6. When the order is for a restrictive placement in the case of a
youth found to have committed any designated felony act and such youth
has been found by a court to have committed a designated felony act on a
prior occasion, regardless of the age of such youth at the time of
commission of such prior act, the order of the court shall be made
pursuant to subdivision four.
7. If the dispositional hearing has been adjourned on a finding of
specific circumstances pursuant to subdivision six of section 350.1
while the respondent is in detention, where a restrictive placement is
subsequently ordered, time spent by the respondent in detention during
such additional adjournment shall be credited and applied against any
term of secure confinement ordered by the court pursuant to subdivision
four or five.
8. The division for youth shall retain the power to continue the
confinement of the youth in a secure or other residential facility
beyond the periods specified by the court, within the term of the
placement.
S 353.6. Restitution. 1. At the conclusion of the dispositional
hearing in cases involving respondents over ten years of age the court
may:
(a) recommend as a condition of placement, or order as a condition of
probation or conditional discharge, restitution in an amount
representing a fair and reasonable cost to replace the property or
repair the damage caused by the respondent, not, however, to exceed one
thousand five hundred dollars. In the case of a placement, the court may
recommend that the respondent pay out of his own funds or earnings the
amount of replacement or damage, either in a lump sum or in periodic
payments in amounts set by the agency with which he is placed, and in
the case of probation or conditional discharge, the court may require
that the respondent pay out of his own funds or earnings the amount of
replacement or damage, either in a lump sum or in periodic payments in
amounts set by the court; and/or
(b) order as a condition of placement, probation or conditional
discharge, services for the public good, taking into consideration the
age and physical condition of the respondent.
2. If the court recommends restitution or requires services for the
public good in conjunction with an order of placement pursuant to
section 353.3 or 353.5, the placement shall be made only to an
authorized agency, including the division for youth, which has adopted
rules and regulations for the supervision of such a program, which rules
and regulations, except in the case of the division for youth, shall be
subject to the approval of the state department of social services. Such
rules and regulations shall include, but not be limited to provisions:
(i) assuring that the conditions of work, including wages, meet the
standards therefor prescribed pursuant to the labor law; (ii) affording
coverage to the respondent under the workers` compensation law as an
employee of such agency, department, division or institution; (iii)
assuring that the entity receiving such services shall not utilize the
same to replace its regular employees; and (iv) providing for reports to
the court not less frequently than every six months.
3. If the court requires restitution or services for the public good
as a condition of probation or conditional discharge, it shall provide
that an agency or person supervise the restitution or services and that
such agency or person report to the court not less frequently than every
six months. Upon the written notice submitted by a school district to
the court and the appropriate probation department or agency which
submits probation recommendations or reports to the court, the court may
provide that such school district shall supervise the performance of
services for the public good.
4. The court, upon receipt of the reports provided for in subdivisions
two and three may, on its own motion or the motion of the agency,
probation service or the presentment agency, hold a hearing pursuant to
section 355.1 to determine whether the dispositional order should be
modified.
S 354.1. Retention and destruction of fingerprints of persons alleged
to be juvenile delinquents. 1. If a person whose fingerprints,
palmprints or photographs were taken pursuant to section 306.1 or was
initially fingerprinted as a juvenile offender and the action is
subsequently removed to a family court pursuant to article seven hundred
twenty-five of the criminal procedure law is adjudicated to be a
juvenile delinquent for a felony, the family court shall forward or
cause to be forwarded to the division of criminal justice services
notification of such adjudication and such related information as may be
required by such division, provided, however, in the case of a person
eleven or twelve years of age such notification shall be provided only
if the act upon which the adjudication is based would constitute a class
A or B felony.
2. If a person whose fingerprints, palmprints or photographs were
taken pursuant to section 306.1 or was initially fingerprinted as a
juvenile offender and the action is subsequently removed to family court
pursuant to article seven hundred twenty-five of the criminal procedure
law has had all petitions disposed of by the family court in any manner
other than an adjudication of juvenile delinquency for a felony, but in
the case of acts committed when such person was eleven or twelve years
of age which would constitute a class A or B felony only, all such
fingerprints, palmprints, photographs, and copies thereof, and all
information relating to such allegations obtained by the division of
criminal justice services pursuant to section 306.1 shall be destroyed
forthwith. The clerk of the court shall notify the commissioner of the
division of criminal justice services and the heads of all police
departments and law enforcement agencies having copies of such records,
who shall destroy such records without unnecessary delay.
3. If the appropriate presentment agency does not originate a
proceeding under section 310.1 for a case in which the potential
respondent`s fingerprints were taken pursuant to section 306.1, the
presentment agency shall serve a certification of such action upon the
division of criminal justice services, and upon the appropriate police
department or law enforcement agency.
4. If, following the taking into custody of a person alleged to be a
juvenile delinquent and the taking and forwarding to the division of
criminal justice services of such person`s fingerprints but prior to
referral to the probation department or to the family court, an officer
or agency, elects not to proceed further, such officer or agency shall
serve a certification of such election upon the division of criminal
justice services.
5. Upon certification pursuant to subdivision twelve of section 308.1
or subdivision three or four of this section, the department or agency
shall destroy forthwith all fingerprints, palmprints, photographs, and
copies thereof, and all other information obtained in the case pursuant
to section 306.1. Upon receipt of such certification, the division of
criminal justice services and all police departments and law enforcement
agencies having copies of such records shall destroy them.
6. If a person fingerprinted pursuant to section 306.1 and
subsequently adjudicated a juvenile delinquent for a felony, but in the
case of acts committed when such a person was eleven or twelve years of
age which would constitute a class A or B felony only, is subsequently
convicted of a crime, all fingerprints and related information obtained
by the division of criminal justice services pursuant to such section
and not destroyed pursuant to subdivisions two, five and seven or
subdivision twelve of section 308.1 shall become part of such division`s
permanent adult criminal record for that person, notwithstanding section
381.2 or 381.3.
7. When a person fingerprinted pursuant to section 306.1 and
subsequently adjudicated a juvenile delinquent for a felony, but in the
case of acts committed when such person was eleven or twelve years of
age which would constitute a class A or B felony only, reaches the age
of twenty-one, or has been discharged from placement under this act for
at least three years, whichever occurs later, and has no criminal
convictions or pending criminal actions which ultimately terminate in a
criminal conviction, all fingerprints, palmprints, photographs, and
related information and copies thereof obtained pursuant to section
306.1 in the possession of the division of criminal justice services,
any police department, law enforcement agency or any other agency shall
be destroyed forthwith. The division of criminal justice services shall
notify the agency or agencies which forwarded fingerprints to such
division pursuant to section 306.1 of their obligation to destroy those
records in their possession. In the case of a pending criminal action
which does not terminate in a criminal conviction, such records shall be
destroyed forthwith upon such determination.
S 354.2. Duties of counsel or law guardian. 1. If the court has
entered a dispositional order pursuant to section 352.2, it shall be the
duty of the respondent`s counsel or law guardian to promptly advise such
respondent and his parent or other person responsible for his care in
writing of his right to appeal to the appropriate appellate division of
the supreme court, the time limitations involved, the manner of
instituting an apppeal and obtaining a transcript of the testimony and
the right to apply for leave to appeal as a poor person if he is unable
to pay the cost of an appeal. It shall be the further duty of such
counsel or law guardian to explain to the respondent and his parent or
person responsible for his care the procedures for instituting an
appeal, the possible reasons upon which an appeal may be based and the
nature and possible consequences of the appellate process.
2. It shall also be the duty of such counsel or law guardian to
ascertain whether the respondent wishes to appeal and, if so, to serve
and file the necessary notice of appeal.
3. If the respondent has been permitted to waive the appointment of a
law guardian pursuant to section two hundred forty-nine-a, it shall be
the duty of the court to provide the notice and explanation pursuant to
subdivision one and, if the respondent indicates that he wishes to
appeal, the clerk of the court shall file and serve the notice of
appeal.
S 355.1. New hearing; staying, modifying or terminating an order. 1.
Upon a showing of a substantial change of circumstances, the court may
on its own motion or on motion of the respondent or his parent or person
responsible for his care:
(a) grant a new fact-finding or dispositional hearing; or
(b) stay execution of, set aside, modify, terminate or vacate any
order issued in the course of a proceeding under this article.
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
division for youth with whom the respondent has been placed.
3. If the court issues a new order of disposition under this section
the date such order expires shall not be later than the expiration date
of the original order.
S 355.2. Motion procedures. 1. A motion for relief pursuant to section
355.1 must be in writing and must state the specific relief requested.
If the motion is based upon the existence or occurence of facts, the
motion papers must contain sworn allegations thereof; such sworn
allegations may be based upon personal knowledge of the affiant or upon
information and belief, provided that in the latter event the affidavit
must state the sources of such information and the grounds of such
belief.
2. Notice of such motion, including the court`s own motion, shall be
served upon the respondent, the presentment agency and the commissioner
of social services or the division for youth having custody of the
respondent. Motions shall be noticed in accordance with the civil
practice law and rules.
3. Each party to the motion shall have the right to oral argument and
the court shall conduct a hearing to resolve any material question of
fact.
4. Regardless of whether a hearing is conducted, the court, upon
determining the motion, must set forth on the record its findings of
fact, its conclusions of law and the reasons for its determination.
5. If the motion is denied, a motion requesting the same or similar
relief cannot be filed for a period of ninety days after such denial,
unless the order of denial permits renewal at an earlier time.
S 355.3 Extension of placement. 1. In any case in which the respondent
has been placed pursuant to section 353.3 the respondent, the person
with whom the respondent has been placed, the commissioner of social
services, or the division for youth may petition the court to extend
such placement. Such petition shall be filed at least sixty days prior
to the expiration of the period of placement, except for good cause
shown but in no event shall such petition be filed after the original
expiration date.
2. The court shall conduct a hearing concerning the need for
continuing the placement. The respondent, the presentment agency and the
agency with whom the respondent has been placed shall be notified of
such hearing and shall have the opportunity to be heard thereat. If the
petition is filed within sixty days prior to the expiration of the
period of placement, the court shall first determine at such hearing
whether good cause has been shown. If good cause is not shown, the court
shall dismiss the petition.
3. The provisions of sections 350.3 and 350.4 shall apply at such
hearing.
4. At the conclusion of the hearing the court may, in its discretion,
order an extension of the placement for not more than one year. The
court must consider and determine in its order:
(i) that where appropriate, and where consistent with the need for the
protection of the community, reasonable efforts were made to make it
possible for the respondent to safely return to his or her home;
(ii) in the case of a respondent who has attained the age of sixteen,
the services needed, if any, to assist the child to make the transition
from foster care to independent living; and
(iii) in the case of a child placed outside New York state, whether
the out-of-state placement continues to be appropriate and in the best
interests of the child.
5. Pending final determination of a petition to extend such placement
filed in accordance with the provisions of this section, the court may,
on its own motion or at the request of the petitioner or respondent,
enter one or more temporary orders extending a period of placement for a
period not to exceed thirty days upon satisfactory proof showing
probable cause for continuing such placement and that each temporary
order is necessary. The court may order additional temporary
extensions, not to exceed a total of fifteen days, if the court is
unable to conclude the hearing within the thirty day temporary extension
period. In no event shall the aggregate number of days in extentions
granted or ordered under this subdivision total more than forty-five
days. The petition shall be dismissed if a decision is not rendered
within the period of placement or any temporary extension thereof.
6. Successive extensions of placement under this section may be
granted, but no placement may be made or continued beyond the
respondent`s eighteenth birthday without the child`s consent and in no
event past the child`s twenty-first birthday.
S 355.4. Provisions for routine medical, dental and mental health
services and treatment. 1. At the conclusion of the dispositional
hearing pursuant to this article, where the respondent is to be placed
with the division for youth, the court shall inquire as to whether the
parents or legal guardian of the youth, if present, will consent for the
division to provide routine medical, dental and mental health services
and treatment.
2. Notwithstanding subdivision one of this section, where the court
places a youth with the division pursuant to this article and no medical
consent has been obtained prior to an order of disposition, the
placement order shall be deemed to grant consent for the division for
youth to provide for routine medical, dental and mental health services
and treatment to such youth so placed.
3. Subject to regulations of the department of health, routine
medical, dental and mental health services and treatment is defined for
the purposes of this section to mean any routine diagnosis or treatment,
including without limitation the administration of medications or
nutrition, the extraction of bodily fluids for analysis, and dental care
performed with a local anesthetic. Routine mental health treatment shall
not include psychiatric administration of medication unless it is part
of an ongoing mental health plan or unless it is otherwise authorized by
law.
4. (a) At any time during placement or at an extension of placement
hearing, a parent or legal guardian may make a motion objecting to
routine medical, dental or mental health services and treatment being
provided to such youth as authorized under the provisions of subdivision
one of this section.
(b) Such notice of motion shall be served on the youth, the
presentment agency and the division not less than seven days prior to
the return date of the motion. The persons on whom the notice of motion
is served shall answer the motion not less than two days before the
return date. On examining the motion and answer and, in its discretion,
after hearing argument, the court shall enter an order, granting or
denying the motion.
5. Nothing in this section shall preclude a youth from consenting on
his or her own behalf to any medical, dental or mental health service
and treatment where otherwise authorized by law to do so, or the
division for youth from petitioning the court pursuant to section two
hundred thirty-three of this act, as appropriate.
S 355.5. Permanency hearing. 1. For the purposes of this section the
term "non-secure facility" means a facility operated by an authorized
agency in accordance with an operating certificate issued pursuant to
the social services law or a facility, not including a secure or limited
secure facility, with a capacity of twenty-five beds or less operated by
the office of children and family services in accordance with section
five hundred four of the executive law.
2. Where a respondent is placed with a commissioner of social services
or the office of children and family services pursuant to section 353.3
of this article for a period of twelve or fewer months and resides in a
foster home or non-secure facility;
(a) The initial permanency hearing shall be held no later than twelve
months after the respondent who was placed with a commissioner of social
services or the office of children and family services entered foster
care and such permanency hearing shall be held in conjunction with an
extension of placement hearing held pursuant to section 355.3 of this
article.
(b) Subsequent permanency hearings shall be held no later than every
twelve months following the respondent`s initial permanency hearing and
shall be held in conjunction with an extension of placement hearing held
pursuant to section 355.3 of this article.
3. Where a respondent is placed with a commissioner of social services
or the office of children and family services pursuant to section 353.3
of this article for a period in excess of twelve months and resides in a
foster home or in a non-secure facility;
(a) the initial permanency hearing shall be held no later than twelve
months after the respondent who was placed with a commissioner of social
services or the office of children and family services entered foster
care.
(b) subsequent permanency hearings shall be held no later than every
twelve months following the respondent`s initial twelve months in
placement; provided, however, that they shall be held in conjunction
with an extension of placement hearing held pursuant to section 355.3 of
this article.
4. For the purposes of this section, the respondent shall be
considered to have entered foster care sixty days after the respondent
was removed from his or her home pursuant to this article.
5. A petition for an initial or subsequent permanency hearing shall be
filed by the office of children and family services or by the
commissioner of social services with whom the respondent was placed.
Such petition shall be filed no later than sixty days prior to the end
of the month in which an initial or subsequent permanency hearing must
be held, as directed in subdivision two of this section.
6. The foster parent caring for the respondent or any pre-adoptive
parent or relative providing care for the respondent shall be provided
with notice of any permanency hearing held pursuant to this section by
the office of children and family services or the commissioner of social
services with whom the respondent was placed. Such foster parent,
pre-adoptive parent and relative shall be afforded an opportunity to be
heard at any such hearing; provided, however, no such foster parent,
pre-adoptive parent or relative shall be construed to be a party to the
hearing solely on the basis of such notice and opportunity to be heard.
The failure of the foster parent, pre-adoptive parent, or relative
caring for the child to appear at a permanency hearing shall constitute
a waiver of the opportunity to be heard and such failure to appear shall
not cause a delay of the permanency hearing nor shall such failure to
appear be a ground for the invalidation of any order issued by the court
pursuant to this section.
7. At the permanency hearing, the court must consider and determine
in its order:
(a) where appropriate, that reasonable efforts were made to make it
possible for the respondent to return safely to his or her home, or if
the permanency plan for the respondent is adoption, guardianship or some
other permanent living arrangement other than reunification with the
parent or parents of the respondent, that reasonable efforts were made
to make and finalize such alternate permanent placement;
(b) in the case of a respondent who has attained the age of sixteen,
the services needed, if any, to assist the respondent to make the
transition from foster care to independent living;
(c) in the case of a respondent placed outside of this state, whether
the out-of-state placement continues to be appropriate and in the best
interests of the respondent;
(d) with regard to the completion of placement ordered by the court
pursuant to section 353.3 or 355.3 of this article: whether and when the
respondent: (i) will be returned to the parent; (ii) should be placed
for adoption with the local commissioner of social services filing a
petition for termination of parental rights; (iii) should be referred
for legal guardianship; (iv) should be placed permanently with a fit and
willing relative; or (v) should be placed in another planned permanent
living arrangement if the office of children and family services or the
local commissioner of social services has documented to the court a
compelling reason for determining that it would not be in the best
interest of the respondent to return home, be referred for termination
of parental rights and placed for adoption, placed with a fit and
willing relative, or placed with a legal guardian; and
(e) with regard to the completion or extension of placement ordered by
the court pursuant to section 353.3 or 355.3 of this article, the steps
that must be taken by the agency with which the respondent is placed to
implement the plan for release or conditional release submitted pursuant
to paragraph (c) of subdivision seven of section 353.3 of this article,
the adequacy of such plan and any modifications that should be made to
such plan.
8. The court shall not reduce or terminate the placement of the
respondent prior to the completion of the period of placement ordered by
the court pursuant to section 353.3 or 355.3 of this article.
