Relates to dispositional options and services for juvenile delinquents and persons in need of supervision

We, therefore, submit this measure to ensure necessary services and to increase the alternatives available to Family Courts both at the dispositional stage and later when faced with applications for extensions of placement in JD and PINS proceedings. If Family Court is to meet its responsibilities to order the "least restrictive available alternative" that fulfills the needs and best interests of the juveniles and, in JD proceedings, that strikes an appropriate balance of these factors with the need for protection of the community, the Court must be able to order needed services and have a wide-range of dispositional and post-dispositional options available. Without these services and supports, the State's investments in placement are lost. The measure includes, inter alia:

-delineation of the responsibility for Family Court not only to consider, but also to craft, a case-specific order, that meets the needs and best interests of the juveniles and, in JD cases, that balances these factors with the need for protection of the community;

-authorization for Family Court to order specific services that are necessary to facilitate the juveniles' successful return home;

-discretion for Family Court to order intensive supervision, which may include participation in a community-based rehabilitative program, in conjunction with probation as a disposition for adjudicated JDs and PINS who would otherwise be placed and, in JD cases, to include electronic monitoring as a condition of the order;

-authorization for Family Court to order that, in lieu of extending placement in JD and PINS cases, juveniles may be placed on probation for up to one year or that, in JD cases, juveniles may be conditionally discharged;

-a requirement 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;" and

-a requirement that the State Education Department develop and implement standards to promote school stability for youth in out-of-home care, to require that facility educational programs meet State standards and generate credits for youth that will be recognized by local school districts and to require local school districts to promptly enroll youth in school upon their release.

The critical elements of this measure can be summarized as follows:

1. Responsibility of Family Court at disposition: The measure requires that Family Court not only consider, but also craft, a case-specific order that meets the needs and best interests of the juveniles and, in JD cases, that balances these factors with the need for protection of the community. Analogous to section 1015-a of the Family Court Act, if the Court determines that there are particular services that would facilitate the juveniles' successful return home, the Court would be empowered, as part of a disposition, extension of placement or permanency order, to direct that the appropriate agency arrange for or furnish them and provide the Court and parties with progress reports. As in Family Court Act § 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. The order must further provide that youth under 21, who do not yet have high school diplomas, must be provided with educational services that comport with the Education Law and regulations so that credits achieved would be transferable and, further, that special education services must be provided if required by the youth's Individualized Education Plan. The juvenile, his or her attorney and his or her parent or guardian must be given a copy of the order. Clearly, as recent reports have demonstrated, if juveniles do not receive these supports, the community, not just the juveniles, will suffer.**

2. Expansion of alternatives to placement: Foremost among the recommendations in the recent reports on New York's juvenile justice system is the need to reduce the often ineffective and costly placements in favor of increased development and utilization of community-based alternatives.*** Consistent with these recommendations, this measure would authorize Family Court to direct that an adjudicated JD or PINS, who would otherwise be placed, be required to participate in an intensive 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, including, among others, the evidence-based programs, such as functional family therapy and multi-systemic therapy, that have proven successful in many parts of the State. 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).

Further, in an effort to minimize unnecessary extensions of placement in both JD and PINS cases, this measure would authorize Family Court to order that juveniles be placed on probation for up to one year or that, in JD cases, juveniles may be conditionally discharged in lieu of extending or continuing placement. These options may be useful where a local probation department, often in conjunction with a community-based agency, is able to provide aftercare or reentry services for a juvenile not available through the placement agency. No fiscal mandates are imposed by the provision. Local probation departments that do not have or do not elect to provide such services would not be required to do so. Nor would it relieve placement agencies from their responsibilities to engage a youth and his or her family in release planning early in the placement.

Intensive supervision, especially coupled with evidence-based community programs, is a critically-needed dispositional alternative. Enhanced State reimbursement has been available for several years for intensive probation supervision for adults, but far smaller amounts have been afforded to juvenile programs. That use of intensive probation and community programs can be an effective means of addressing juvenile justice cases, while at the same time saving considerable sums of money, has been clearly demonstrated in programs such as Esperanza, Enhanced Supervision and the Juvenile Justice Initiative in New York City, as well as a variety of programs in Erie County.**** Nationally, such programs are recognized as providing cost-effective, safe alternatives to residential placement.***** Evidenced-based programs, such as functional family therapy and multi-systemic therapy, which are increasingly in use throughout the State, have been shown to be far more effective than costly placements in advancing constructive youth development and community safety****** The alternative - placement in facilities operated by the State Office of Children and Family Services or contract agencies - has become increasingly expensive, averaging over $200,000 per ju venile per year, as compared to $3,743 per child for Enhanced Supervision, $13,000 for Esperanza and $17,000 for the Juvenile Justice Initiative.******* The enormous investment in out-of-home placement has not paid off; a study of a large sample of youth released from OCFS facilities from 1991 to 1995 revealed that 89% of the boys and 81% of the girls had been rearrested by the time they reached the age of 28, 85% of the boys and 69% of the girls had been convicted and 52% of the boys and 12% of the girls had been incarcerated by that age.******** Community-based alternatives have demonstrated far lower recidivism.*********

With respect to PINS, the need for this proposal is underscored by the conclusions reached by the Vera Institute of Justice in its two studies that were commissioned by the State Office of Children and Family Services in 2001 and 2004.********** The earlier study characterized detention and placement as the "most expensive" and "least satisfying" pre-dispositional and dispositional options for the juveniles, their families and the system as a whole - options that have not been demonstrated to reduce either the truancy or absconding problems that form the gravamen of most PINS petitions and that have drained resources away from more promising solutions -and the follow-up study highlighted the efficacy of the use of creative alternatives to detention and placement for PINS.

Significantly, not only does intensive supervision save money, but it may also facilitate access to Federal dollars. Funds from the Federal child welfare programs can be made available to localities for these programs if the Office of Probation and Correctional Alternatives within the State Division of Criminal Justice Services and local probation departments work in partnership with the State Office of Children and Family Services and local social services districts. If intensive supervision services that are provided to youth to prevent placement are explicitly included in the statewide plan for child welfare services, Federal reimbursement would be available as a preventive service under Title IV-B of the Social Security Act. 42 U.S.C.A. §§ 622, 623 (Social Security Act, Title IV-B).*********** Federal reimbursement for child welfare services to prevent placement of juvenile delinquents is contemplated so long as the facilities where the youth would have been placed are eligible for Federal foster care funding - i.e., that the facilities are not secure detention centers or forestry camps or training schools housing over 25 juveniles. See 42 U.S.C. § 672(c) (Social Security Act, Title IV-E). With respect to juvenile delinquents, as is now authorized for pretrial detention (L. 2008, c. 57), so, too, this measure authorizes, but does not require, electronic monitoring as a dispositional condition of an intensive probation regimen. This would be an adjunct to, but not a replacement for, the in-person contacts so vital to the success of probation, particularly as applied to juveniles. In light of the requirement in section 303.1(a) of the Family Court Act that Criminal Procedure Law provisions be "specifically prescribed" in the Family Court Act in order to be applicable, this provision would provide the necessary analogue to section 65.10(4) of the Criminal Procedure Law, the statutory response to the Court of Appeals decision in People v. McNair, 87 N.Y.2d 772 (1996). See L.1996, c. 653. Enactment of an authorization for electronic monitoring in New York is long overdue. Significantly, the State Office of Children and Family Services uses it in its aftercare supervision.************ Several other states utilize this option as a vital component of a dispositional plan in juvenile delinquency cases************* and the Appellate Division, Third Department, has endorsed its use as a reasonable condition of probation in a PINS proceeding. See Matter of Kristian CC., 24 A.D.3d 930 (3d Dept., 2005), lye. app. denied, 6 N.Y.3d 710 (2006).

To ensure quality programs, this measure requires the State Office of Probation and Correctional Alternatives to promulgate regulations permitting and guiding the operation by local probation departments of both electronic monitoring and intensive supervision programs, addressing such issues as: maximum probation officer caseloads; special training requirements for intensive supervision officers; nature and frequency of the contacts with juveniles, schools and other agencies; and the level and type of supervision, treatment and other program components. Further, in order to allow adequate time for programs to be developed, the dispositional alternatives would not take effect until the following fiscal year.

3. Mental health services for juveniles in out-of-home care: This measure would amend Family Court Act §§ 354 and 756 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." The recent investigation by the United States Department of Justice, as well as the Governor's Task Force and Child Welfare Watch reports, underscore the need for this provision. The Governor's Task Force report noted that 48% of delinquent youth screened by the State Office of Children and Family Services upon admission are determined to have mental health needs and estimates from national experts indicate that as many as two-thirds of juveniles in placement facilities nationwide have significant mental health needs.************** As the Department of Justice findings letter indicated, all too often, professional diagnoses and treatments are not provided and psychotropic medication is not professionally monitored.*************** The Child Welfare Watch report specifically recommended deployment of psychiatrists and psychiatric nurses to youth facilities.****************

4. Educational services and release planning: To realize the goals of the release planning and educational services provisions for both PINS and JDs and consistent with the recommendation of the Governor's Task Force,***************** this measure amends section 112 of the Education Law to require the State Department of Education to establish and enforce standards to require educational programs in placement facilities to provide credits to juveniles that are then transferred to schools upon their release and that all school districts accept and recognize such credits.

This measure, which would have no fiscal impact on the State, would take effect on the first day of April after it shall have become a law; provided, however, that any regulations necessary for the implementation of this act shall be promulgated on or before such effective date.

Legislative history

None. New proposal.

*See Governor's Task Force on Transforming Juvenile Justice, Charting a New Course: A Blueprint for Transforming Juvenile Justice in New York State (Dec., 2009); Citizens' Committee for Children of New York, Inside Out: Youth's Experiences Inside New York State's Placement System (Dec., 2009); A Need for Correction: Reforming New York's Juvenile Justice System, 18 Child Welfare Watch (Fall, 2009); U.S. Dept. of Justice, "Investigation of Lansing Residential Center, Lou Gossett, Jr. Residential Center, Tryon Residential Center and Tryon Girls Center" (Findings Letter, dated Aug.14,2009.)

**Ibid.

***Ibid.

****See Governor's Task Force on Transforming Juvenile Justice, Charting a New Course: A Blueprint for Transforming Juvenile Justice in New York State (Dec., 2009) at 27; K. Hurley, "Homes for Teens, Not Lock-ups: New York City Experiments with Keeping Lawbreakers in the Community," in A Need for Correction: Reforming New York's Juvenile Justice System, 18 Child Welfare Watch 14, 18, 21 (Fall, 2009); "Alternative to Jail Programs for Juveniles Reduce City Costs," Inside the Budget, #148 (NYC Independent Budget Office; July 11, 2006).

***** See generally, Home-based Services for Serious and Violent Offenders, Center for the Study of Youth Policy (Oct., 1994); M. Jones and B. Krisberg, Images and Reality: Juvenile Crime, Youth Violence and Public Policy, National Council on Crime and Delinquency (June, 1994), p. 37; Comprehensive Strategy for Serious, Violent and Chronic Offenders: Program Summary, U.S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention (Dec., 1993), p. 21.

******See, e.g., P. Greenwood, Changing Lives: Crime Prevention as Crime Control Policy (U.Chi. Press, 2006); Juvenile Delinquency Guidelines: Improving Court Practice in Juvenile Delinquency Cases (National Council of Juvenile and Family Court Judges, 2005).

*******See note 45, supra.

********See Governor's Task Force on Transforming Juvenile Justice, Charting a New Course: A Blueprint for Transforming Juvenile Justice in New York State (Dec., 2009) at page 85, n. 5.

*********See, e.g., Fight Crime, Invest in Kids, Getting Juvenile Justice Right in New York: Proven Interventions Will Cut Crime and Save Money (2007).

**********Changing the PINS System in New York: A Study of the Implications of Raising the Age Limit for Persons in Need of Supervision (PINS) (Vera Inst., Sept., 2001) at pages 34, 38; Changing the Status Ouo for Status Offenders: New York State's Efforts to Support Troubled Teens (Vera Inst., Dec., 2004).

*********** Reimbursable "child welfare services" are defined as "public social services," directed, inter alia, at "preventing or remedying, or assisting in the solution of problems which may result in the neglect, abuse, exploitation or delinquency of children." 42 U.S.C. § 625(a)(1)(B) (Social Security Act, Title IV-B). The Federal regulations implementing the Act enumerate counseling and other services determined to be "necessary and appropriate," including "intensive, home-based family services." 45 C.F.R. § 1357.15.

************See NYS OCFS, Electronic Monitoring Program (June, 2002)(www.ocfs.state.ny.us, accessed Jan. 7, 2010).

*************See, e.g., Ariz. Rev. Stat., Tit. 8, c. 3, Art. 3, § 8-341 (1999); Ark. Stat. Ann. Tit. 9, Subtit. 3, C. 27, Subc. 3, § 9-27-330 (1997); West's Fla. Stat. Ann. § 985.231 (1999); Official Code of Ga. Ann., Tit. 49, C. 4A, § 49-4A-13 (1999); Baldwin's Ohio Rev. Code Ann., Tit. XXI, § 2151.355 (1999); Rev. Code Wash., Tit. 13, C. 13.40, § 13 .40

**************See Governor's Task Force on Transforming Juvenile Justice, Charting a New Course: A Blueprint for Transforming Juvenile Justice in New York State (Dec., 2009) at 59, 85 n. 10 (citing S. Moore, "Mentally Ill Offenders Strain Juvenile Justice System," NY Times, Aug. 9, 2009.

*************** U.S. Dept. of Justice, "Investigation of Lansing Residential Center, Lou Gossett, Jr. Residential Center, Tryon Residential Center and Tryon Girls Center" (Findings Letter, dated Aug. 14, 2009), at pages 6.15 - 6.26.

****************A Need for Corrction: Reforming New York's Juvenile Justice System, 18 Child Welfare Watch (Fall, 2009), at p. 3. See also, Citizens' Committee for Children of New York, Inside Out: Youth's Experiences Inside New York State's Placement System (Dec., 2009) at p. 5.

*****************Governor's Task Force on Transforming Juvenile Justice, Charting a New Course: A Blueprint for Transforming Juvenile Justice in New York State (Dec., 2009) at pages 62, 77.