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

With enactment of the "Close to Home" initiative as part of the Fiscal Year 20122013 State Budget, New York has embarked upon an exciting, ambitious reform of its juvenile justice system. See L. 2012, c. 57, Part G. Instead of placing juveniles from New York City in distant facilities operated by the State Office of Children and Family Services (OCFS), juveniles in all but the most serious cases must be placed in or near the City in facilities operated under contract with the New York City Administration for Children's Services (ACS). Those youth already placed with OCFS are subject to transfer to the custody of ACS upon petitions filed in Family Court. The first phase of the "Close to Home" initiative, implemented as of September 1, 2012, covered youth already placed or facing placement in a "non-secure" level of care, while the second phase, scheduled for 2013, will cover youth in or facing placement in a "limited-secure" level of care. As ACS indicated in its "Vision Statement" for the new program:

The City will build on its successful development of programming that decreases recidivism and lessens reliance on residential facilities, while maintaining public safety. The City will create a juvenile justice system where all but the most seriously delinquent New York City youth stay closer to home and family. Here, they will receive the individualized services, supports and opportunities they need; and when youth must be placed in a restrictive environment, they will be close to home, aligned to services, family and community supports and be successfully prepared for reentry into their community.

The "Close to Home" statute established expedited processes for the Family Court proceedings required for transfers of youth from the custody of OCFS to the custody of ACS during the first 90 days of each of the two phases. The statute further delineated a new judicial process for transfers of youth from the custody of ACS to OCFS for exceptional cases in which a higher level of care is required than that which is offered by ACS through its contracts. On the advice of our Family Court Advisory and Rules Committee, we submit this measure to fill several critical gaps in Family Court Act §355.1, the statutory framework for both types of transfers.

First, this measure would amend Family Court Act §355.1(a) with respect to petitions to transfer juveniles from ACS to OCFS, both in terms of transfers to OCFS for placement in a limited-secure level of care and, once the ACS "Close to Home" initiative includes the limited-secure level of care, transfers to OCFS for placement at a secure level. The measure would add a requirement that the petitioner notify the presentment agency (the New York City Corporation Counsel) and that the agency be afforded an opportunity to be heard on the transfer petition, as is provided to the juvenile, his or her attorney, ACS and OCFS. Further, especially in light of the

requirements for notice and an opportunity to be heard for each of these key participants - and, importantly, the right of the juvenile to effective representation of counsel in preparation for the hearing on the transfer petition - the measure would modify the current requirement of a judicial decision within 72 hours of the filing of the petition to a more realistic time-frame. The measure would afford the parties up to 30 days to be heard on the petition, but if the juvenile is in detention pending the hearing, the parties would have up to ten days to be heard with a possible extension for an additional ten days for good cause. Family Court then would be required to render its decision within ten days of the hearing, exclusive of weekends and holidays.

Second, this measure would amend Family Court Act §355.1(b) with respect to petitions to transfer juveniles from OCFS to ACS. Although the first 90 day period for transfers of juveniles in a non-secure level of care with OCFS to ACS has concluded, the first 90-day period for the transfers of youth in a limited-secure level of care has not yet commenced. Recognizing the need for consistency, the measure amends both paragraphs (1) and (ii) of the subdivision to add a requirement for the petitioner to notify the presentment agency and the social services district, that is, ACS, and afford both agencies an opportunity to be heard along with OCFS, the juvenile and his or her attorney. Especially in light of the addition of a right to be heard for these critically important agencies, the measure modifies the standard for determining a transfer petition to require that it be granted "absent good cause and unless the court determines, and states in its written order, the reasons why continued placement with the office is necessary and consistent with the needs and best interests of the respondent and the need for protection of the community." For transfer petitions filed after the first 90 days of implementation of the respective phase of the initiative, the measure would add a requirement for the petitioner to notify the juvenile's parents or legal guardians.

The importance of notifying the juvenile's parents or legal guardians, the presentment agency and the agency to whom custody is sought to be transferred can not be overstated. The juvenile's parents or legal guardians are essential participants and, arguably, must be notified, because Family Court Act §341.2(3) requires their presence "at any hearing under this article," that is, Article 3 of the Family Court Act, which includes section 355.1.

The presentment agency (in New York City, the corporation counsel) is required by Family Court Act §355.2 to be notified of all post-dispositional motions made pursuant to §355.1. Clearly, transfer petitions filed pursuant to §355.1 should also trigger the same requirement. Signifying the increasingly integral functions that prosecutors fulfill at all phases of juvenile delinquency proceedings, Family Court Act §310.1 provides that only a presentment agency can present a juvenile delinquency petition and Family Court Act §§350.4(3) and (6) delineates an important role for the presentment agency in presenting evidence and making recommendations at dispositional hearings. Importantly, standards of the National District Attorneys Association regarding juvenile delinquency prosecutions indicate that "the prosecutor should take an active role

in the dispositional hearing." See National District Attorneys Association, National Prosecution Standards §4-11.10 (3d Ed., NH).

Finally, the need for ACS to be notified of petitions regarding juveniles who may be coming in to their care is obvious, since the agency is responsible for planning for their care and should be involved at all phases of their transition. Family Court Act §§355.1(a)(i) and (ii) requires that OCFS be notified and afforded an opportunity to be heard regarding petitions for transfers of youth from ACS into their care. Family Court Act §§355.1(b)(i) and (ii) should require no less in terms of notice and an opportunity to be heard for ACS, the potential recipient agency for transfers of youth from OCFS.

This measure, which would have no meaningful fiscal impact upon the State, would take effect immediately.

Legislative History: None. New proposal.