New York State Law
Family Court Law
Consolidated Laws of NY's FCA code
Part 5 - Article 3 - Family Court
THE DISPOSITIONAL HEARING
| Section | Description |
|---|---|
| 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. |
| 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. * 2-a. (a) In a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, the local probation department shall develop and submit to the office of children and family services for prior approval a validated pre-dispositional risk assessment instrument and any risk assessment process. The office shall share a copy of any such instrument and process with the office of probation and correctional alternatives and any expert consulting with the office pursuant to this section. Such department shall periodically revalidate any approved pre-dispositional risk assessment instrument. The department shall conspicuously post information about the instrument on its website, including but not limited to, the name of the instrument; the name and contact information of the person, institution or company that developed such instrument; what the instrument is intended to measure; the types of factors and information the instrument takes into consideration; the process by which the instrument is used in both the pre-disposition investigation and dispositional phase of a hearing; the purpose for the instrument and how the instrument informs the recommendation in the pre-dispositional investigation report; links to independent research and studies about the instrument as well as its own validation analysis relating to the instrument, when available; the most recent date the instrument was validated and the date the next re-validation process is anticipated to begin. The department shall confer with appropriate stakeholders, including but not limited to, attorneys for children, presentment agencies and the family court, prior to revising any validated pre-dispositional risk assessment instrument or process. Such department shall provide any approved pre-dispositional risk assessment instrument and process to the temporary president of the senate and the speaker of the assembly. Any revised pre-dispositional risk assessment instrument shall be subject to periodic empirical validation and to the approval of the office of children and family services. The office of children and family services shall consult with individuals with professional research experience and expertise in criminal justice; social work; juvenile justice; and applied mathematics, psychometrics and/or statistics to assist the office in determining the methods it will use to: approve the department's validated and revalidated pre-dispositional risk assessment instrument and process; and analyze the effectiveness of the use of such instrument and process in accomplishing their intended goals; and analyze, to the greatest extent possible, any disparate impact on dispositional outcomes for juveniles based on race, sex, national origin, economic status, and any other constitutionally protected class, regarding the use of such instrument. The office shall consult with such individuals regarding whether it is appropriate to attempt to analyze whether there is any such disparate impact based on sexual orientation and, if so, the best methods to conduct such analysis. The office shall take into consideration any recommendations given by such individuals involving improvements that could be made to such instrument and process. The department shall provide training on the approved instrument and any approved process to the applicable family courts, presentment agency, and court appointed attorneys for respondents. (b) Once an initial validated risk assessment instrument and any risk assessment process have been approved by the office of children and family services in consultation with the office of probation and correctional alternatives, the local probation department shall provide the applicable supervising family court judge with a copy of the validated risk assessment instrument and any such process along with the letter from the office of children and family services approving the instrument and process, if applicable, and indicating the date the instrument and any such process shall be effective, provided that such effective date shall be at least thirty days after such notification. (c) Commencing on the effective date of a validated pre-dispositional risk assessment instrument and any approved process and thereafter, each probation investigation ordered under subdivision two of this section shall include the results of the validated risk assessment of the respondent and process, if any; and a respondent shall not be placed in accordance with section 353.3 or 353.5 of this part unless the court has received and given due consideration to the results of such validated risk assessment and any approved process and made the findings required pursuant to paragraph (f) of subdivision two of section 352.2 of this part. (d) Notwithstanding any other provision of law to the contrary, data necessary for completion of a pre-dispositional risk assessment instrument may be shared among law enforcement, probation, courts, detention administrations, detention providers, presentment agencies, and the attorney for the child upon retention or appointment solely for the purpose of accurate completion of such risk assessment instrument. A copy of the completed pre-dispositional risk assessment instrument shall be made available to the attorney for the respondent and the applicable court. (e) The local probation department shall provide the office of probation and correctional alternatives with information regarding the use of the pre-dispositional risk assessment instrument and any risk assessment process in the time and manner required by the office. The office may require that such data be submitted to the office electronically. The office shall not commingle any such information with any criminal history database. The office shall share such information with the office of children and family services. The office of children and family services shall use and share such information only for the purposes of this section and in accordance with this section. Such information shall be shared and received in a manner that protects the confidentiality of such information. The sharing, use, disclosure and redisclosure of such information to any person, office, or other entity not specifically authorized to receive it pursuant to this section or any other law is prohibited. (f) The family courts shall provide the office of children and family services with such information, in the time and manner required by the office, as is necessary for the office to determine the validity and efficacy of any pre-dispositional risk assessment instrument and process submitted to the office for approval under this subdivision and to analyze any disparate impact on dispositional outcomes for juveniles in accordance with paragraph (a) of this subdivision. The office shall use and share such information only for the purposes of this section and in accordance with this section. Such information shall be shared and received in a manner that protects the confidentiality of such information. The sharing, use, disclosure and redisclosure of such information to any person, office, or other entity not specifically authorized to receive it pursuant to this section or any other law is prohibited. (g) The office of probation and correctional alternatives shall promulgate regulations, in consultation with the office of children and family services, regarding the role of local probation departments in the completion and use of the pre-dispositional risk assessment instrument and in the risk assessment process. * NB Repealed March 31, 2018 * 2-b. The office of children and family services shall develop a validated pre-dispositional risk assessment instrument and any risk assessment process for juvenile delinquents. The office shall periodically revalidate any approved pre-dispositional risk assessment instrument. The office shall conspicuously post any approved pre-dispositional risk assessment instrument and any risk assessment process on its website and shall confer with appropriate stakeholders, including but not limited to, attorneys for children, presentment agencies and the family court, prior to revising any validated pre-dispositional risk assessment instrument or process. Any such revised pre-dispositional risk assessment instrument shall be subject to periodic empirical validation. The office of children and family services shall consult with individuals with professional research experience and expertise in criminal justice; social work; juvenile justice; and applied mathematics, psychometrics and/or statistics to assist the office in determining the method it will use to: develop, validate and revalidate such pre-dispositional risk assessment instrument; develop the risk assessment process; and analyze the effectiveness of the use of such pre-dispositional risk assessment instrument and process in accomplishing their intended goals; and analyze, to the greatest extent possible, any disparate impact on dispositional outcomes for juveniles based on race, sex, national origin, economic status, and any other constitutionally protected class, regarding the use of such instrument. The office shall consult with such individuals regarding whether it is appropriate to attempt to analyze whether there is any such disparate impact based on sexual orientation and, if so, the best methods to conduct such analysis. The office shall take into consideration any recommendations given by such individuals involving improvements that could be made to such instrument and process. The office also shall consult with local probation departments in the development of the validated pre-dispositional risk assessment instrument and the revalidation of such instrument. The office of children and family services shall provide training on the instrument and any process to the family courts, local probation departments, presentment agencies and court appointed attorneys for respondents. The office may determine that a pre-dispositional risk assessment instrument and any process in use pursuant to subdivision two-a of section 351.1 of this part may continue to be used pursuant to such subdivision instead of requiring the use of any instrument or process developed pursuant to this subdivision. (a) Once an initial validated risk assessment instrument and risk assessment process have been developed, the office of children and family services shall provide the supervising family court judges and local probation departments with copies of the validated risk assessment instrument and process and notify them of the effective date of the instrument and process, which shall be at least six months after such notification. (b) Commencing on the effective date of a validated risk assessment instrument and any risk assessment process and thereafter, each probation investigation ordered under subdivision two of this section shall include the results of the validated risk assessment of the respondent and process, if any; and a respondent shall not be placed in accordance with section 353.3 or 353.5 of this part unless the court has received and given due consideration to the results of such validated risk assessment and any process and made the findings required pursuant to paragraph (g) of subdivision two of section 352.2 of this part. (c) Notwithstanding any other provision of law to the contrary, data necessary for completion of a pre-dispositional risk assessment instrument may be shared among law enforcement, probation, courts, detention administrations, detention providers, presentment agencies and the attorney for the child upon retention or appointment solely for the purpose of accurate completion of such risk assessment instrument, and a copy of the completed pre-dispositional risk assessment instrument shall be made available to the attorney for the respondent and applicable court. (d) Local probation departments shall provide the office of probation and correctional alternatives with information regarding use of the pre-dispositional risk assessment instrument and any risk assessment process in the time and manner required by the office. The office may require that such data be submitted to the office electronically. The office shall not commingle any such information with any criminal history database. The office shall share such information with the office of children and family services. The office of children and family services shall use and share such information only for the purposes of this section and in accordance with this section. Such information shall be shared and received in a manner that protects the confidentiality of such information. The sharing, use, disclosure and redisclosure of such information to any person, office, or other entity not specifically authorized to receive it pursuant to this section or any other law is prohibited. (e) Law enforcement and the family courts shall provide the office of children and family services with such information, in the time and manner required by the office, as is necessary for the office to develop, validate and revalidate any such pre-dispositional risk assessment instrument and process and to analyze any disparate impact on dispositional outcomes for juveniles in accordance with this section. The office shall use and share such information only for the purposes of this section and share it in accordance with this section. Such information shall be shared and received in a manner that protects the confidentiality of such information. The sharing, use, disclosure and redisclosure of such information to any person, office, or other entity not specifically authorized to receive it pursuant to this section or any other law is prohibited. (f) The office of probation and correctional alternatives shall promulgate regulations, in consultation with the office of children and family services, regarding the role of local probation departments in the completion and use of the pre-dispositional risk assessment instrument and in the risk assessment process. * NB Repealed March 31, 2018 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, including the amount of unreimbursed medical expenses, if any, 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 or that the dispositional hearing should be delayed in order to obtain such information. 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 office of probation and correctional alternatives, of data on the number of victim impact statements prepared. Such information shall be transmitted annually to the office of victim services and included in the office's biennial report pursuant to subdivision twenty-one 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. * (f)(1) In a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, upon the effective date of a risk assessment instrument and any risk assessment process that have been approved by the office of children and family services pursuant to subdivision two-a of section 351.1 of this part, the court shall give due consideration to the results of the validated risk assessment and any such process provided to the court pursuant to such subdivision when determining the appropriate disposition for the respondent. (2) Any order of the court directing the placement of a respondent into a residential program shall state: (i) the level of risk the youth was assessed at pursuant to the validated risk assessment instrument; and (ii) if a determination is made to place a youth in a higher level of placement than appears warranted based on such risk assessment instrument and any approved risk assessment process, the particular reasons why such placement was determined to be necessary for the protection of the community and to be consistent with the needs and best interests of the respondent; and (iii) that a less restrictive alternative that would be consistent with the needs and best interests of the respondent and the need for protection of the community is not available. * NB Repealed March 31, 2018 * (g)(i) Once a validated risk assessment instrument and any risk assessment process is a required part of each probation investigation ordered under subdivision two of section 351.1 of this part and provided to the court in accordance with subdivision two-b of such section, the court shall give due consideration to the results of such validated risk assessment and any such process when determining the appropriate disposition for the respondent. (ii) Any order of the court directing the placement of a respondent into a residential program shall state: (A) the level of risk the youth was assessed pursuant to the validated risk assessment instrument; and (B) if a determination is made to place a youth in a higher level of placement than appears warranted based on such risk assessment instrument and any risk assessment process, the particular reasons why such placement was determined to be necessary for the protection of the community and to be consistent with the needs and best interests of the respondent; and (C) that a less restrictive alternative that would be consistent with the needs and best interests of the respondent and the need for protection of the community is not available. * NB Repealed March 31, 2018 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; or (c) refrain from intentionally injuring or killing, without justification, any companion animal the respondent knows to be owned, possessed, leased, kept or held by the person protected by the order or a minor child residing in such person's household. "Companion animal", as used in this subdivision, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law. (1-a) 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, for good cause shown, enter an order of protection against any respondent requiring that the respondent refrain from engaging in conduct, against any designated witness specifically named by the court in such order, that would constitute intimidation of a witness pursuant to section 215.15, 215.16 or 215.17 of the penal law or an attempt thereof, provided that the court makes a finding that the respondent did previously, or is likely to in the future, intimidate or attempt to intimidate such witness in such manner. (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. The court may, as a condition of a conditional discharge, in cases where the record indicates the respondent qualifies as an eligible person and has been adjudicated for an eligible offense as defined in section four hundred fifty-eight-l of the social services law, require the respondent to attend and complete an education reform program established pursuant to section four hundred fifty-eight-l of the social services law. 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 of this part, the court may place the respondent in his or her own home or in the custody of a suitable relative or other suitable private person or the commissioner of the local social services district or the office of children and family services 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 the local social services district, the court may (i) in a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, direct the commissioner to provide services necessary to meet the needs of the respondent, provided that such services are authorized or required to be made available pursuant to the approved plan to implement a juvenile justice close to home initiative then in effect and the commissioner shall notify the court and the attorney for the respondent of the authorized agency that such respondent was placed in; or (ii) in a social services district that is not operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, direct the commissioner to place him or her with an authorized agency or class of authorized agencies,; and if the court finds that the respondent placed with a social services district pursuant to this subdivision is a sexually exploited child as defined in subdivision one of section four hundred forty-seven-a of the social services law, the court may place such respondent in an available long-term safe house. 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: * NB Effective until March 31, 2018 * Where the respondent is placed with the commissioner of the local social services district, the court may direct the commissioner to place him or her with an authorized agency or class of authorized agencies, including, if the court finds that the respondent is a sexually exploited child as defined in subdivision one of section four hundred forty-seven-a of the social services law, an available long-term safe house. 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: * NB Effective March 31, 2018 (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 of this part; or (b) the commissioner shall return the respondent to the family court for a new dispositional hearing and order. * 2-a. Notwithstanding any inconsistent provision of law to the contrary, and pursuant to subdivision two of this section in a district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law: (a) beginning on the effective date of the district's approved plan that only covers juvenile delinquents placed in non-secure settings, the court may only place the respondent: (i) in the custody of the commissioner of the local social services district for placement in a non-secure level of care; or (ii) in the custody of the commissioner of the office of children and family services for placement in a limited secure or secure level of care; and (b) beginning on the effective date of the district's approved plan to implement programs for youth placed in limited secure settings, the court may only place the respondent: (i) in the custody of the commissioner of the local social services district for placement in: (A) a non-secure level of care; (B) a limited secure level of care; or (C) either a non-secure or limited secure level of care, as determined by such commissioner; or (ii) in the custody of the commissioner of the office of children and family services for placement in a secure level of care. * NB Repealed March 31, 2018 3. Where the respondent is placed with the office of children and family services, the court shall, unless it directs the office to place him or her with an authorized agency or class of authorized agencies, including if the court finds that the respondent is a sexually exploited child as defined in subdivision one of section four hundred forty-seven-a of the social services law, an available long-term safe house pursuant to subdivision four of this section, authorize the office 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 office of children and family services facilities. Notwithstanding the discretion of the office to place the respondent in a secure facility at any time during the first sixty days of residency in a office of children and family services facility, the respondent may be placed in a non-secure facility. In the event that the office desires to transfer a respondent to a secure facility at any time after the first sixty days of residency in office 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 office 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 office 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 office of children and family services to a secure facility. 4. Where the respondent is placed with the office of children and family services, the court may direct the office to place the respondent with an authorized agency or class of authorized agencies, including, if the court finds that the respondent is a sexually exploited child as defined in subdivision one of section four hundred forty-seven-a of the social services law, an available long-term safe house, and in the event the office 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 office pursuant to paragraph (b) or (c) of subdivision three of this section. In such cases, the office shall notify the court, presentment agency, respondent's attorney 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 of this part 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, respondent's 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 part. (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 part, 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 part and a permanency hearing pursuant to section 355.5 of this part, 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, or to another permanency alternative as provided in paragraph (d) of subdivision seven of section 355.5 of this part. 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 of this part in conjunction with an order of placement. * 9. If the court places a respondent with the office of children and family services, or with a social services district with an approved plan to implement a juvenile justice services close to home initiative under section four hundred four of the social services law, pursuant to this section after finding that such respondent 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. * NB Effective until March 31, 2018 * 9. If the court places a respondent with the office of children and family services 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. * NB Effective March 31, 2018 10. A placement pursuant to this section with the commissioner of the local social services district 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 office of children and family services 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 of this section, the respondent shall initially be confined in a secure facility for eighteen months. (iii) after the period set under subparagraph (ii) of this paragraph, the respondent shall be placed in a residential facility for a period of twelve months; provided, however, that if the respondent has been placed from a family court in a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, once the time frames in subparagraph (ii) of this paragraph are met: (A) beginning on the effective date of such a social services district's plan that only covers juvenile delinquents placed in non-secure settings, if the office of children and family services concludes, based on the needs and best interests of the respondent and the need for protection for the community, that a non-secure level of care is appropriate for the respondent, such office shall file a petition pursuant to paragraph (b) or (c) of subdivision two of section 355.1 of this part to have the respondent placed with the applicable local commissioner of social services; and (B) beginning on the effective date of such a social services district's plan that covers juvenile delinquents placed in limited secure settings, if the office of children and family services concludes, based on the needs and best interests of the respondent and the need for protection for the community, that a non-secure or limited secure level of care is appropriate for the respondent, such office shall file a petition pursuant to paragraph (b) or (c) of subdivision two of section 355.1 of this part to have the respondent placed with the applicable local commissioner of social services. (C) If the respondent is placed with the local commissioner of social services in accordance with clause (A) or (B) of this subparagraph, the remainder of the provisions of this section shall continue to apply to the respondent's placement. (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 subparagraph (ii) of this paragraph, nor may the respondent be released from a residential facility during the period provided in subparagraph (iii) of this paragraph. 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 office of children and family services or, if applicable, a local social services district which operates an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law. (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 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 subparagraph (iii) of paragraph (a) of this subdivision, the respondent shall not be released from a residential facility without the written approval of the office of children and family services or, if applicable, a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law. (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 office of children and family services or, if applicable, a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, 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 office of children and family services or, if applicable, a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law 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 office of children and family services, or, if applicable, a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, 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. * NB Effective until March 31, 2018 * 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. * NB Effective March 31, 2018 * 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 office of children and family services 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 subparagraph (ii) of this paragraph, 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; provided, however, that if the respondent has been placed from a family court in a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, once the time frames in subparagraph (ii) of this paragraph are met: (A) beginning on the effective date of such a social services district's plan that only covers juvenile delinquents placed in non-secure settings, if the office of children and family services concludes, based on the needs and best interests of the respondent and the need for protection for the community, that a non-secure level of care is appropriate for the respondent, such office shall file a petition pursuant to paragraph (b) or (c) of subdivision two of section 355.1 of this part to have the respondent placed with the applicable local commissioner of social services; and (B) beginning on the effective date of such a social services district's plan to implement programs for youth placed in limited secure settings, if the office of children and family services concludes, based on the needs and best interests of the respondent and the need for protection for the community, that a non-secure or limited secure level of care is appropriate for the respondent, such office shall file a petition pursuant to paragraph (b) or (c) of subdivision two of section 355.1 of this part to have the respondent placed with the applicable local commissioner of social services. (C) If the respondent is placed with a local commissioner of social services in accordance with clause (A) or (B) of this subparagraph, the remainder of the provisions of this section shall continue to apply to the respondent's placement. (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 subparagraph (ii) of this paragraph, nor may the respondent be released from a residential facility during the period provided by the court pursuant to subparagraph (iii) of this paragraph. 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 office of children and family services or, if applicable, a social services district operating an approved juvenile justice close to home initiative pursuant to section four hundred four of the social services law. (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 subparagraph (iii) of paragraph (a) of this subdivision, the respondent shall not be released from a residential facility without the written approval of the office of children and family services or, if applicable, a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law. (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 office of children and family services, or, if applicable, a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law. (iv) unless otherwise specified in the order, the office of children and family services or, if applicable, a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, 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 office of children and family services or, if applicable, a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law, 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. * NB Effective until March 31, 2018 * 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. * NB Effective March 31, 2018 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 office of children and family services or, if applicable, the social services district operating an approved close to home initiative pursuant to section four hundred four of the social services law, shall retain the power to continue the confinement of the youth in a secure or other residential facility, as applicable, beyond the periods specified by the court, within the term of the placement. * NB Effective until March 31, 2018 * 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. * NB Effective March 31, 2018 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, repair the damage caused by the respondent or provide the victim with compensation for unreimbursed medical expenses, 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 or her own funds or earnings the amount of replacement, damage or unreimbursed medical expenses, either in a lump sum or in periodic payments in amounts set by the agency with which he or she is placed, and in the case of probation or conditional discharge, the court may require that the respondent pay out of his or her own funds or earnings the amount of replacement, damage or unreimbursed medical expenses, 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 including in the case of a crime involving willful, malicious, or unlawful damage or destruction to real or personal property maintained as a cemetery plot, grave, burial place, or other place of interment of human remains, services for the maintenance and repair thereof, 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. 1. If the court has entered a dispositional order pursuant to section 352.2, it shall be the duty of the respondent's counsel to promptly advise such respondent and his or her parent or other person responsible for his or her care in writing of the right to appeal to the appropriate appellate division of the supreme court, the time limitations involved, the manner of instituting an appeal and obtaining a transcript of the testimony and the right to apply for leave to appeal as a poor person if he or she is unable to pay the cost of an appeal. It shall be the further duty of such counsel to explain to the respondent and his or her parent or person responsible for his or her 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 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 counsel 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 or she 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 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 and the respondent's parent or legal guardian. The court shall render a decision whether the juvenile delinquent should be transferred to the office within seventy-two hours, 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-secure 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 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 and the respondent's parent or legal guardian. The court shall render a decision whether the youth should be transferred within seventy-two hours, 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, 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 committing 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 and the respondent's parent or legal guardian. If the district only has an approved plan that covers juvenile delinquents 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 unless the court determines, and states in its written order, the reasons why 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 unless the court determines, and states in its written order, the reasons why 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 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 family 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 community. * NB Effective until March 31, 2018 * 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. * NB Effective March 31, 2018 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 office of children and family services or a social services district, the court shall inquire as to whether the parents or legal guardian of the youth, if present, will consent for the office or the district to provide routine medical, dental and mental health services and treatment. * NB Effective until March 31, 2018 * 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. * NB Effective March 31, 2018 * 2. Notwithstanding subdivision one of this section, where the court places a youth with the office of children and family services or a social services district 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 office or the district to provide for routine medical, dental and mental health services and treatment to such youth so placed. * NB Effective until March 31, 2018 * 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. * NB Effective March 31, 2018 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. The term shall not include a limited secure facility within a social services district operating an approved juvenile justice services close to home initiative pursuant to section four hundred four of the social services law. * NB Effective until March 31, 2018 * 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. * NB Effective March 31, 2018 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 have the right 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 right 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 right 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 another 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 including consideration of appropriate in-state and out-of-state placements; (b) in the case of a respondent who has attained the age of fourteen, 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 part: 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 with a significant connection to an adult willing to be a permanency resource for the respondent if the respondent is age sixteen or older and (A) the office of children and family services or the local commissioner of social services has documented to the court: (1) the intensive, ongoing, and, as of the date of the hearing, unsuccessful efforts made to return the respondent home or secure a placement for the respondent with a fit and willing relative including adult siblings, a legal guardian, or an adoptive parent, including through efforts that utilize search technology including social media to find biological family members for children, (2) the steps being taken to ensure that (I) the respondent's foster family home or child care facility is following the reasonable and prudent parent standard in accordance with guidance provided by the United States department of health and human services, and (II) the respondent has regular, ongoing opportunities to engage in age or developmentally appropriate activities including by consulting with the respondent in an age-appropriate manner about the opportunities of the respondent to participate in activities; and (B) the office of children and family services or the local commissioner of social services has documented to the court and the court has determined that there are compelling reasons for determining that it continues to 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 (C) the court has made a determination explaining why, as of the date of this hearing, another planned living arrangement with a significant connection to an adult willing to be a permanency resource for the respondent is the best permanency plan for the respondent; 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, including consideration of appropriate in-state and out-of-state placements, the adequacy of such plan and any modifications that should be made to such plan. 8. At the permanency hearing, the court shall consult with the respondent in an age-appropriate manner regarding the permanency plan for the respondent; provided, however, that if the respondent is age sixteen or older and the requested permanency plan for the respondent is placement in another planned permanent living arrangement with a significant connection to an adult willing to be a permanency resource for the respondent, the court must ask the respondent about the desired permanency outcome for the respondent. 9. 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. Top of Page
Index | Article 1 |
Article 2 | Article 3 |
Article 4 | Article 5 |
Article 5A | Article 5B |
Article 6 | Article 7 |
Article 8 | Article 9 |
Article 10 | Article 10A |
Article 10B | Article 10C |
Article 11 | Article 12
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