Relates to permanency planning and dispositional alternatives in juvenile delinquency and persons in need of supervision proceedings

When the Legislature enacted landmark child welfare permanency legislation as chapter 3 of the Laws of 2005, it deferred consideration of many significant issues relating to permanency planning and permanency hearings regarding juvenile delinquents (JD) and Persons in Need of Supervision (PINS). These issues, however, remain critically important and should be addressed comprehensively. To this end, we propose this measure to incorporate essential elements of the Family Court Act's child welfare permanency hearing article (Article 10-A) into permanency hearing provisions of Articles 3 and 7 of the Act. By so doing, it would provide greater specificity regarding services required for youth and would expand alternatives available to courts both in dispositional and permanency hearings in JD and PINS cases. Briefly, the measure contains the following provisions:

1. Notices to non-custodial parents: The measure would require that non-custodial parents, if any, be given notice of their children's cases in Family Court to enable them to appear. This supplements the existing requirement that a summons be issued for an accused JD's parent or other person legally responsible. The local probation department that generally interviews parties at the outset for adjustment purposes, as well as the presentment agency (prosecution), would be tasked with asking the custodial parent for the necessary contact information for parents other than those already notified. In JD cases, the presentment agency must send the notice, along with a copy of the petition, to the non-custodial parent or parents at least five days before the appearance date. In PINS cases, where there is most often no presentment agency, Family Court would be tasked with sending the notice.

A child's non-custodial parent can be a critical participant in the dispositional process. He or she, or his or her extended family, may provide vitally-needed placement resources for a child, both temporarily during the pendency of the action and on a more extended basis at disposition. Such participation may also positively influence the child's behavior.

2. Continuity of counsel: This measure would continue the appointment of the child's attorney in JD and PINS proceedings for the entire period of a dispositional order, an adjournment in contemplation of dismissal and any extensions of placement, permanency hearings, violation hearings or other post-dispositional proceedings. As in child protective cases, the appointment would automatically continue unless Family Court relieves the attorney or grants his or her application to be relieved, in which case the Court must appoint another attorney immediately.

This change will help realize one of the central precepts underlying the Family Court Act: i.e., the necessity of representation of juveniles at every stage of the court proceedings.

3. Family Court's responsibility at disposition: This measure would require Family Court not only to consider, but also to craft, a case-specific order that meets a juvenile's needs and best interests and, in a JD case, that balances these factors with the need for protection of the community. Analogous to section 1015-0 of the Family Court Act, if the court determines that there are particular services that would facilitate a juvenile's successful return home, the court could, as part of its disposition, extension of placement or permanency order, direct that the appropriate agency arrange for or furnish them and provide the court and parties with progress reports. As in section 1015-a, the scope of these orders with respect to social services officials would be limited by the county child and family services plan then in effect. Where a dispositional order places a juvenile with a county department of social services or, in the case of a JD, with the State Office of Children and Family Services ("OCFS"), the dispositional order must include the same elements as child protective placement orders, including a description of the family visitation plan, the service plan if available (or if not yet available, then within 60 days of disposition) and a directive that notice be given to the parents of any planning conferences. Also, the order must provide that youth under 21, who do not yet have high school diplomas, must be furnished with educational services comporting with the Education Law and regulations so that credits achieved would be transferable and, further, that special education services must be provided if required.

4. Permanency planning goals and services for adolescents: This measure would require Family Court to consider the services necessary to assist juveniles 14 and older, instead of 16 and older, to make the transition from foster care to independent living in JD and PINS cases. See Family Court Act §1089(d)(2)(vii)(G). Further, for juveniles who are neither returning home nor achieving permanence through adoption, the measure would require that, if the permanency planning goal is "another planned permanent living arrangement ," it must include "a significant connection to an adult willing to be a permanency resource for the child." See Family Court Act §1089(d)(2)(i)(E).

Planning for a juvenile's release to his or her family, the predominant permanency goal in juvenile delinquency and PINS cases, must begin early and, where the family will not be a resource, identification of a suitable permanency resource is critically important.

5. Mental health services for juveniles in out-of-home care: This measure would amend sections 354 and 756 of the Family Court Act to require that "[r]outine, emergency or other mental health treatment, including administration of psychotropic medication, shall be provided by licensed mental health professionals as authorized by law."

6. Expansion of alternatives to placement: To reduce often ineffective and costly placements of juveniles in favor of increased development and utilization of community based alternatives, this measure would authorize Family Court to direct that an adjudicated JD or PINS, who would otherwise be placed, participate in an intensive probation supervision program for all or part of the period of probation to the extent available in the county. Such a program may require participation in a community-based rehabilitative program, and may include electronic monitoring. Explicit inclusion of intensive supervision, including community-based programs, effectuates the mandate for both PINS and JD cases that Family Court direct utilization of the "least restrictive available alternative" and that reasonable efforts be made to prevent placements. See Family Court Act §§352.2(2); 754(2)(a).

This measure also would authorize Family Court, instead of extending or continuing placement, to order that juveniles be placed on probation for up to one year or that, in JD cases, they be conditionally discharged. These options may be useful where a local probation department, often in conjunction with a community-based agency, is able to provide aftercare services for a juvenile not available through the placement agency.

7. Educational and vocational release planning in juvenile delinquency and PINS proceedings: This measure would amend section 112 of the Education Law to require the State Department of Education to establish and enforce standards to enable educational programs in placement facilities to provide credits to juveniles that are transferable to schools upon their release, and that all school districts accept and recognize such credits. The measure also requires that local school districts enroll youth exiting placement in school within five business days of their release.

It is most ironic that PINS, many, if not most, of whom had been truant or experienced other school difficulties, are the only category of juveniles before Family Court who do not have specific statutory rights to school and vocational release planning. Therefore, this measure conforms the PINS statute to the JD school and vocational release mandates of chapter 181 of the Laws of 2000, and to chapter 3 of the Laws of 2005, which added identical provisions

for children in foster care. This measure requires the agency with which a PINS is placed - the local Department of Social Services or an authorized child care agency operating under contract - to engage in constructive planning for the child's release, including arranging appropriate educational and/or vocational programs, and to report to Family Court and to the parties on such efforts. Where extension of placement is not being sought, the measure requires a report regarding the child's release plan 30 days prior to conclusion of the placement period. Where the agency is requesting an extension of placement and permanency hearing, the report must be annexed to the petition, which must be filed 60 days prior to the date on which the permanency hearing must be held.

The release plan mandated in the report must delineate the steps that the agency has taken or will be taking to ensure that the juvenile will be enrolled in school promptly after release, that records will be promptly transferred and that special education services, if any, will continue until the new local education agency develops and implements a new Individual Education Plan, as necessary. For a juvenile not subject to the State's compulsory education law who affirmatively elects not to continue in school, the agency must describe steps taken or planned to promptly ensure the juvenile's gainful employment or enrollment in a vocational program. In an extension of placement/permanency hearing, this release plan must be reviewed by Family Court in conjunction with its review of the permanency plan, and the Court's order must include a determination of the release plan's adequacy and must specify any necessary modifications.

8. Placement and permanency hearing orders: This measure requires permanency hearings for juveniles placed with local Departments of Social Services and with OCFS for limited secure and non-secure facilities. Although the State does not receive Federal Title IV-E foster care reimbursement for youth in limited secure facilities, these youth may well, during the course of placement, be transferred into IV-E- eligible non-secure facilities. Convening permanency hearings for such youth, which is largely already the practice statewide but should be made uniform, greatly facilitates the planning process and assures compliance with the Federally-required time-limits applicable once the youth are transferred. See, e.g., Matter of Donovan Z., 6 Misc.3d 1023(A) (Fam. Ct., Monroe Co., 2005).

Further, the measure requires that permanency hearing orders in JD and PINS proceedings include: a description of the visitation plan between the juvenile and his or her parent or legally-responsible adult; a service plan designed to fulfill the permanency goal for the juvenile(1); a direction that the parent or other person legally responsible be notified of, and be invited to be present at, any planning conferences convened by the placement agency with respect to the child; and a warning that, if the juvenile remains in placement for 15 out of 22 months, the agency may be required to file a

petition to terminate parental rights. A copy of the court order and service plan must be provided to the juvenile, his or her attorney and the juvenile's parent or other legally responsible individual. Cf., Family Court Act §.1089(d)(2)(vii)(A), 1089(e).

This measure would take effect 90 days after becoming a law.

2008 LEGISLATIVE HISTORY:

Senate 8194 [ref to Social Services, Children & Families]/Assembly 8859 [Passed]

2009-10 LEGISLATIVE HISTORY:

Senate 4390 (Montgomery) [ref to Children & Families] Assembly 8503 (Scarborough) [ref to Children & Families]

Footnotes

(1) If a service plan has not been prepared by the date of disposition, it must be disseminated to the Family Court, presentment agency, child's attorney and parent or person legally responsible for the child's care within 60 days of the issuance of the dispositional order.