Establishes the office of the independent juvenile justice advocate

Summary of provisions

Section 1 of the bill would add a new Article 43 to the Executive Law, establishing the Independent Office of the Juvenile Justice Advocate to act as an independent, external oversight body with respect to: (1) examining, evaluating, investigating and monitoring systemic issues affecting youth in residential programs, including the quality of care provided to youth and the ability of youth to access needed services; (2) receiving referrals from OCFS's Office of the Ombudsman for investi- gation of systemic issues; and (3) conducting periodic inspections, evaluations or reviews of residential program~.

The Office would be authorized to obtain copies of internal investi- gation reports and fatality reports regarding youth in residential programs from OCFS and issue subpoenas and subpoenas duces tecum in furtherance of its investigations. All information obtained by the Office would be kept confidential, except for non-confidential, non-i- dentifying data and information necessary to assist law enforcement with actual or potential criminal investigations. The Office would be required to submit to the Governor, the Legislature and OCFS a written annual report concerning its activities.

Section 2 of the bill would amend Executive Law §505 to remove a requirement that a facility director of an OCFS facility have two years of service in appropriate titles in State government prior to appoint- ment.

Section 3 of the bill would amend Family Court Act (FCA) § 352.2(a) to provide that, when entering a dispositional order for a respondent adju-

dicated a juvenile delinquent under Article 3 of the FCA, the court may not place the respondent with OCFS unless: (1) the responded has commit- ted a violent felony as set forth in Penal Law § 70.02; (2) the respond- ent has committed a sex offense as set forth in Article 130 of the Penal Law; or (3) based on the record and background of the respondent, the court finds that the respondent poses a significant risk to public safe- ty and no less restrictive alternative is available to mitigate that risk.

Section 4 of the bill would amend FCA § 353.3(3) and (4) to: (1) provide that, in determining the appropriate placement for a respondent adjudi- cated a juvenile delinquent, the court may only place the respondent with OCFS when: (a) the respondent has committed a violent felony as set forth in Penal Law § 70.02; (b) the respondent has committed a sex offense as set forth in Article 130 of the Penal Law; or (c) based on the record and background of the respondent, the Court finds that the respondent poses a significant risk to public safety and no less restrictive alternative is available to mitigate that risk; (2) increase the time period in which OCFS may transfer a youth placed with OCFS to a secure facility without a hearing from 60 to 90 days·; and (3) remove the court's authority to place a youth with OCFS for placement in a non-secure facility. This removal of the court's authority, however, does not preclude OCFS from placing the respondent in a non-secure facility.

Section 5 of the bill would amend FCA § 355. I (2) to allow a court to modify placement of a respondent from a voluntary agency to OCFS for placement in a secure or limited-secure facility upon application by a local district commissioner of social services where the child: (1) is exceptionally dangerous to himself or herself or others; or (2) has demonstrated by a pattern of behavior that he or she needs a more struc- tured setting than a voluntary agency can provide.

Section 6 of the bill would provide that it would take effect immediate- ly, however section 1 would take effect on January 1, 2011 and sections 3, 4 and 5 would take effect on November 1, 2010.

Existing law

Executive Law § 505 requires that each facility have a facility director and requires that facility directors possess at least two years of service in appropriate State titles prior to appointment.

FCA Article 3 establishes procedures to determine whether a youth is a juvenile delinquent and the appropriate order of disposition for a youth who has been adjudicated a juvenile delinquent.

FCA § 352.2 provides that, at the conclusion of a dispositional hearing, the court must issue an order conditionally discharging the respondent, placing the respondent on probation, or placing the respondent in the custody of OCFS, a local department of social services, Or a voluntary agency, and requires that, except where a child has committed a desig-

nated felony act, the child must be placed in the least restrictive setting available which is consistent with the needs and best interests of the respondent and the community.

FCA § 352.3 provides that a court may place a youth adjudicated a juve- nile delinquent: (1) in his or her own home; (2) in the custody of a relative Or other suitable person; (3) with the commissioner of the local department of social services; or (4) with OCFS. FCA § 352.3 also sets forth requirements associated with such placements.

FCA § 355.1 authorizes the court to grant new fact-finding or disposi- tional hearings, or to stay the execution of, set aside, modify, termi- nate or vacate an order issued in a juvenile delinquency proceeding.

Justification

In December 2009, the Governor's Task Force on Transforming Juvenile Justice issued its report "Charting A New Course: A Blueprint for Trans- forming Juvenile Justice in New York." Two of the Task Force recommenda- tions included: (1) establishing and funding an independent, external oversight body to monitor and report on OCFS' juvenile justice policies and practices; and (2) reserving institutional placement for youth who pose a significant risk to public safety. This proposal is envisioned to be a step in the overall efforts in transforming the juvenile justice system.

First, this bill would establish an Independent Office of the Juvenile Justice Advocate, which would be hosted by the Division of Criminal Justice Services (DCJS). The Office would be charged with examining, evaluating and investigating systemic issues involving the quality of care provided to youth in residential programs and the ability of youth to access needed services across systems, and apprising the Governor, the Legislature and OCFS with respect to such matters. As the Task Force stated, "no independent oversight body exists outside of OCFS to ensure that all youth placed in juvenile institutional facilities under the care and custody of the State are treated fairly and humanely." (Report at 5). While OCFS has an internal control function, and the agency's Office of the Ombudsman investigates and evaluates complaints from youth in its facilities, there is no entity outside OCFS that reviews systemic issues impacting youth placed in OCFS custody. Establishing an independ- ent office with broad authority to evaluate youth placed in residential settings will help to continue the State's efforts to improve the juve- nile justice system and provide for the safety and well-being of youth in OCFS's care and custody. The Executive Director of the Office would report to the Governor.

Second, this bill would provide that a court determining the appropriate placement for a youth adjudicated a juvenile delinquent may not place the respondent with OCFS unless: (1) the respondent has committed a violent felony as set forth in Penal Law § 70.02; (2) the respondent has committed a sex offense as set forth in Article 130 of the Penal Law; or (3) based on the record and background of the respondent, the court

finds that the respondent poses a significant risk to public safety and no less restrictive alternative is available to mitigate that risk. Youth who have been found guilty as juvenile offenders would still be placed with OCFS as required by the Penal Law. Consistent with the recommendations of the Governor's Task Force, institutional placement will be reserved under this proposal for youth who pose a significant risk to public safety, ensuring that more youth are served in more appropriate settings and closer to their families and home communities.

Under the new provisions relating to placement of youth with OCFS, only youth who have committed serious crimes or who pose a significant risk to public safety and for whom no other placement is appropriate would be placed with OCFS. As a result, this legislation would propose to increase, from 60 to 90 days, the amount of time OCFS would have to transfer a youth placed with OCFS to a secure facility without a hear- ing. This change will allow a longer period of time for OCFS to evaluate the youth's behavior before making a decision to move a youth to a more secure setting.

In addition, this proposal would eliminate a requirement that facility directors in OCFS facilities have at least two years experience in comparable State government titles prior to appointment. Instead, crite- ria will be set by the Department of Civil Service, in consultation with OCFS. OCFS facility directors will be largely responsible for ensuring that juvenile justice reform is implemented, as well as establishing the overall culture of the facility. This change will allow OCFS to select the most qualified candidate to implement the structural and programmat- ic reforms necessary to truly transform the juvenile justice system.

Budgetary implications

This bill is not expected to have a material impact on State finances; the Office will be hosted by DCJS and funding for staff will be trans- ferred from OCFS to the Office.

Effective date

This bill would take effect immediately, provided that section 1 of this act would take effect on January 1, 2011, and sections 3, 4 and 5 would take effect November 1, 2010.