N.Y. Family Court Act § 322.2: Proceedings to determine capacity

§ 322.2. Proceedings to determine capacity. 1. Upon the receipt of

examination reports ordered under section 322.1 of this act, the court

shall conduct a hearing to determine whether the respondent is an

incapacitated person. The respondent, the counsel for the respondent,

the presentment agency and the commissioner of mental health or the

commissioner of developmental disabilities, as appropriate, shall be

notified of such hearing at least five days prior to the date thereof

and afforded an opportunity to be heard.

2. If the court finds that the respondent is not an incapacitated

person, it shall continue the delinquency proceedings.

3. If the court finds that the respondent is an incapacitated person,

the court shall schedule a hearing to determine whether there is

probable cause to believe that the respondent committed a crime. The

order of proceeding at such hearing shall conform to section 325.2.

4. If the court finds that there is probable cause to believe that the

respondent committed a misdemeanor, the respondent shall be committed to

the custody of the appropriate commissioner for a reasonable period not

to exceed ninety days. Unless the court specifies that such commitment

shall be in a residential facility, such commissioner having custody may

arrange for treatment in an appropriate facility or program, including

an outpatient program, in accordance with subdivision (e) of section

7.09 or subdivision (c-1) of section 13.09 respectively, of the mental

hygiene law. The court shall dismiss the petition on the issuance of the

order of commitment and such dismissal shall constitute a bar to further

prosecution of the charge or charges contained in the petition.

5. (a) If the court finds that there is probable cause to believe that

the respondent committed a felony, it shall order the respondent

committed to the custody of the commissioner of mental health or the

commissioner of the office for people with developmental disabilities

for an initial period not to exceed one year from the date of such

order. Unless the court specifies that such commitment shall be in a

residential facility, such commissioner having custody may arrange for

treatment in an appropriate facility or program, including an outpatient

program, in accordance with subdivision (e) of section 7.09 or

subdivision (c-1) of section 13.09 respectively, of the mental hygiene

law. Such period may be extended annually upon further application to

the court by the commissioner having custody or his or her designee.

Such application must be made not more than sixty days prior to the

expiration of such period on forms that have been prescribed by the

chief administrator of the courts. At that time, the commissioner must

give written notice of the application to the respondent, the counsel

representing the respondent and the mental hygiene legal service if the

respondent is at a residential facility. Upon receipt of such

application, the court must conduct a hearing to determine the issue of

capacity. If, at the conclusion of a hearing conducted pursuant to this

subdivision, the court finds that the respondent is no longer

incapacitated, he or she shall be returned to the family court for

further proceedings pursuant to this article. If the court is satisfied

that the respondent continues to be incapacitated, the court shall

authorize continued custody of the respondent by the commissioner in a

facility or program for a period not to exceed one year. Such extensions

shall not continue beyond a reasonable period of time necessary to

determine whether the respondent will attain the capacity to proceed to

a fact finding hearing in the foreseeable future but in no event shall

continue beyond the respondent's eighteenth birthday or, if the

respondent was at least sixteen years of age when the act was committed,

beyond the respondent's twenty-first birthday.

(b) If a respondent is in the custody of the commissioner upon the

respondent's eighteenth birthday, or if the respondent was at least

sixteen years of age when the act resulting in the respondent's

placement was committed, beyond the respondent's twenty-first birthday,

the commissioner shall notify the clerk of the court that the respondent

was in his custody on such date and the court shall dismiss the

petition.

(c) If the court finds that there is probable cause to believe that

the respondent has committed a designated felony act, the court shall

require that treatment be provided in a residential facility within the

appropriate office of the department of mental hygiene or in an

outpatient facility if the commissioner having custody of the child

petitions the court pursuant to subdivision seven of this section and

such court approves.

(d) The commissioner shall review the condition of the respondent

within forty-five days after the respondent is committed to the custody

of the commissioner. He or she shall make a second review within ninety

days after the respondent is committed to his or her custody.

Thereafter, he or she shall review the condition of the respondent every

ninety days. The respondent and the counsel for the respondent, shall be

notified of any such review and afforded an opportunity to be heard. The

commissioner having custody shall apply to the court for an order

dismissing the petition whenever he or she determines that there is a

substantial probability that the respondent will continue to be

incapacitated for the foreseeable future. At the time of such

application the commissioner must give written notice of the application

to the respondent, the presentment agency and the mental hygiene legal

service if the respondent is at a residential facility. Upon receipt of

such application, the court may on its own motion conduct a hearing to

determine whether there is substantial probability that the respondent

will continue to be incapacitated for the foreseeable future, and it

must conduct such hearing if a demand therefor is made by the respondent

or the mental hygiene legal service within ten days from the date that

notice of the application was given to them. The respondent may apply to

the court for an order of dismissal on the same ground.

6. Any order pursuant to this section dismissing a petition shall not

preclude an application for voluntary or involuntary care and treatment

in a facility or program of the appropriate office of the department of

mental hygiene pursuant to the provisions of the mental hygiene law.

Unless the respondent is admitted pursuant to such an application he or

she shall be released.

7. If the commissioner having custody of a child committed to a

residential facility pursuant to subdivision four or paragraph (a) of

subdivision five of this section determines at any time that such child

may be more appropriately treated in a non-residential facility or on an

outpatient basis, he or she may arrange for such treatment. If the

commissioner having custody of a child committed to a residential

facility pursuant to paragraph (c) of subdivision five of this section

determines at any time that such child may be more appropriately treated

in a non-residential facility or on an outpatient basis, he or she may

petition the family court for a hearing. If the court finds after a

hearing that treatment in a non-residential facility or on an outpatient

basis would be more appropriate for such child, the court shall modify

its order of commitment to direct the commissioner to transfer the child

to a non-residential facility or arrange outpatient treatment.

Application for a hearing to determine whether any child committed to a

residential facility under subdivisions four or five of this section may

be more appropriately treated in a non-residential facility or on an

outpatient basis may be made by the respondent.

8. If the commissioner having custody of the child determines at any

time that such child is not an incapacitated person, he shall petition

the court for a hearing. The respondent and the presentment agency shall

be notified of such hearing within twenty-four hours of the scheduling

of such hearing and afforded an opportunity to be heard. Application for

such a hearing may be made by the respondent. If the court finds after

the hearing that the child is no longer incapacitated, he shall be

returned to the family court for further proceedings pursuant to this

article.

9. Time spent by the respondent in the custody of a commissioner of an

office within the department of mental hygiene or in a local hospital or

detention facility pending transfer to the custody of the commissioner

after a finding of incapacity, shall be credited and applied towards the

period of placement specified in a dispositional order on the original

petition.