N.Y. Family Court Act § 351.1: Probation, investigation and diagnostic assessment

§ 351.1. Probation, investigation and diagnostic assessment. 1.

Following a determination that a respondent has committed a designated

felony act and prior to the dispositional hearing, the judge shall order

a probation investigation and a diagnostic assessment. For the purposes

of this article, the probation investigation shall include, but not be

limited to, the history of the juvenile including previous conduct, the

family situation, any previous psychological and psychiatric reports,

school adjustment, previous social assistance provided by voluntary or

public agencies and the response of the juvenile to such assistance. For

the purposes of this article, the diagnostic assessment shall include,

but not be limited to, psychological tests and psychiatric interviews to

determine mental capacity and achievement, emotional stability and

mental disabilities. It shall include a clinical assessment of the

situational factors that may have contributed to the act or acts. When

feasible, expert opinion shall be rendered as to the risk presented by

the juvenile to others or himself, with a recommendation as to the need

for a restrictive placement.

2. Following a determination that a respondent committed a crime and

prior to the dispositional hearing, the court shall order a probation

investigation and may order a diagnostic assessment.

* 2-a. (a) In a social services district operating an approved

juvenile justice services close to home initiative pursuant to section

four hundred four of the social services law, the local probation

department shall develop and submit to the office of children and family

services for prior approval a validated pre-dispositional risk

assessment instrument and any risk assessment process. The office shall

share a copy of any such instrument and process with the office of

probation and correctional alternatives and any expert consulting with

the office pursuant to this section. Such department shall periodically

revalidate any approved pre-dispositional risk assessment instrument.

The department shall conspicuously post information about the instrument

on its website, including but not limited to, the name of the

instrument; the name and contact information of the person, institution

or company that developed such instrument; what the instrument is

intended to measure; the types of factors and information the instrument

takes into consideration; the process by which the instrument is used in

both the pre-disposition investigation and dispositional phase of a

hearing; the purpose for the instrument and how the instrument informs

the recommendation in the pre-dispositional investigation report; links

to independent research and studies about the instrument as well as its

own validation analysis relating to the instrument, when available; the

most recent date the instrument was validated and the date the next

re-validation process is anticipated to begin. The department shall

confer with appropriate stakeholders, including but not limited to,

attorneys for children, presentment agencies and the family court, prior

to revising any validated pre-dispositional risk assessment instrument

or process. Such department shall provide any approved pre-dispositional

risk assessment instrument and process to the temporary president of the

senate and the speaker of the assembly. Any revised pre-dispositional

risk assessment instrument shall be subject to periodic empirical

validation and to the approval of the office of children and family

services. The office of children and family services shall consult with

individuals with professional research experience and expertise in

criminal justice; social work; juvenile justice; and applied

mathematics, psychometrics and/or statistics to assist the office in

determining the methods it will use to: approve the department's

validated and revalidated pre-dispositional risk assessment instrument

and process; and analyze the effectiveness of the use of such instrument

and process in accomplishing their intended goals; and analyze, to the

greatest extent possible, any disparate impact on dispositional outcomes

for juveniles based on race, sex, national origin, economic status, and

any other constitutionally protected class, regarding the use of such

instrument. The office shall consult with such individuals regarding

whether it is appropriate to attempt to analyze whether there is any

such disparate impact based on sexual orientation and, if so, the best

methods to conduct such analysis. The office shall take into

consideration any recommendations given by such individuals involving

improvements that could be made to such instrument and process. The

department shall provide training on the approved instrument and any

approved process to the applicable family courts, presentment agency,

and court appointed attorneys for respondents.

(b) Once an initial validated risk assessment instrument and any risk

assessment process have been approved by the office of children and

family services in consultation with the office of probation and

correctional alternatives, the local probation department shall provide

the applicable supervising family court judge with a copy of the

validated risk assessment instrument and any such process along with the

letter from the office of children and family services approving the

instrument and process, if applicable, and indicating the date the

instrument and any such process shall be effective, provided that such

effective date shall be at least thirty days after such notification.

(c) Commencing on the effective date of a validated pre-dispositional

risk assessment instrument and any approved process and thereafter, each

probation investigation ordered under subdivision two of this section

shall include the results of the validated risk assessment of the

respondent and process, if any; and a respondent shall not be placed in

accordance with section 353.3 or 353.5 of this part unless the court has

received and given due consideration to the results of such validated

risk assessment and any approved process and made the findings required

pursuant to paragraph (f) of subdivision two of section 352.2 of this

part.

(d) Notwithstanding any other provision of law to the contrary, data

necessary for completion of a pre-dispositional risk assessment

instrument may be shared among law enforcement, probation, courts,

detention administrations, detention providers, presentment agencies,

and the attorney for the child upon retention or appointment solely for

the purpose of accurate completion of such risk assessment instrument. A

copy of the completed pre-dispositional risk assessment instrument shall

be made available to the attorney for the respondent and the applicable

court.

(e) The local probation department shall provide the office of

probation and correctional alternatives with information regarding the

use of the pre-dispositional risk assessment instrument and any risk

assessment process in the time and manner required by the office. The

office may require that such data be submitted to the office

electronically. The office shall not commingle any such information with

any criminal history database. The office shall share such information

with the office of children and family services. The office of children

and family services shall use and share such information only for the

purposes of this section and in accordance with this section. Such

information shall be shared and received in a manner that protects the

confidentiality of such information. The sharing, use, disclosure and

redisclosure of such information to any person, office, or other entity

not specifically authorized to receive it pursuant to this section or

any other law is prohibited.

(f) The family courts shall provide the office of children and family

services with such information, in the time and manner required by the

office, as is necessary for the office to determine the validity and

efficacy of any pre-dispositional risk assessment instrument and process

submitted to the office for approval under this subdivision and to

analyze any disparate impact on dispositional outcomes for juveniles in

accordance with paragraph (a) of this subdivision. The office shall use

and share such information only for the purposes of this section and in

accordance with this section. Such information shall be shared and

received in a manner that protects the confidentiality of such

information. The sharing, use, disclosure and redisclosure of such

information to any person, office, or other entity not specifically

authorized to receive it pursuant to this section or any other law is

prohibited.

(g) The office of probation and correctional alternatives shall

promulgate regulations, in consultation with the office of children and

family services, regarding the role of local probation departments in

the completion and use of the pre-dispositional risk assessment

instrument and in the risk assessment process.

* NB Repealed March 31, 2028

* 2-b. The office of children and family services shall develop a

validated pre-dispositional risk assessment instrument and any risk

assessment process for juvenile delinquents. The office shall

periodically revalidate any approved pre-dispositional risk assessment

instrument. The office shall conspicuously post any approved

pre-dispositional risk assessment instrument and any risk assessment

process on its website and shall confer with appropriate stakeholders,

including but not limited to, attorneys for children, presentment

agencies and the family court, prior to revising any validated

pre-dispositional risk assessment instrument or process. Any such

revised pre-dispositional risk assessment instrument shall be subject to

periodic empirical validation. The office of children and family

services shall consult with individuals with professional research

experience and expertise in criminal justice; social work; juvenile

justice; and applied mathematics, psychometrics and/or statistics to

assist the office in determining the method it will use to: develop,

validate and revalidate such pre-dispositional risk assessment

instrument; develop the risk assessment process; and analyze the

effectiveness of the use of such pre-dispositional risk assessment

instrument and process in accomplishing their intended goals; and

analyze, to the greatest extent possible, any disparate impact on

dispositional outcomes for juveniles based on race, sex, national

origin, economic status, and any other constitutionally protected class,

regarding the use of such instrument. The office shall consult with such

individuals regarding whether it is appropriate to attempt to analyze

whether there is any such disparate impact based on sexual orientation

and, if so, the best methods to conduct such analysis. The office shall

take into consideration any recommendations given by such individuals

involving improvements that could be made to such instrument and

process. The office also shall consult with local probation departments

in the development of the validated pre-dispositional risk assessment

instrument and the revalidation of such instrument. The office of

children and family services shall provide training on the instrument

and any process to the family courts, local probation departments,

presentment agencies and court appointed attorneys for respondents. The

office may determine that a pre-dispositional risk assessment instrument

and any process in use pursuant to subdivision two-a of section 351.1 of

this part may continue to be used pursuant to such subdivision instead

of requiring the use of any instrument or process developed pursuant to

this subdivision.

(a) Once an initial validated risk assessment instrument and risk

assessment process have been developed, the office of children and

family services shall provide the supervising family court judges and

local probation departments with copies of the validated risk assessment

instrument and process and notify them of the effective date of the

instrument and process, which shall be at least six months after such

notification.

(b) Commencing on the effective date of a validated risk assessment

instrument and any risk assessment process and thereafter, each

probation investigation ordered under subdivision two of this section

shall include the results of the validated risk assessment of the

respondent and process, if any; and a respondent shall not be placed in

accordance with section 353.3 or 353.5 of this part unless the court has

received and given due consideration to the results of such validated

risk assessment and any process and made the findings required pursuant

to paragraph (g) of subdivision two of section 352.2 of this part.

(c) Notwithstanding any other provision of law to the contrary, data

necessary for completion of a pre-dispositional risk assessment

instrument may be shared among law enforcement, probation, courts,

detention administrations, detention providers, presentment agencies and

the attorney for the child upon retention or appointment solely for the

purpose of accurate completion of such risk assessment instrument, and a

copy of the completed pre-dispositional risk assessment instrument shall

be made available to the attorney for the respondent and applicable

court.

(d) Local probation departments shall provide the office of probation

and correctional alternatives with information regarding use of the

pre-dispositional risk assessment instrument and any risk assessment

process in the time and manner required by the office. The office may

require that such data be submitted to the office electronically. The

office shall not commingle any such information with any criminal

history database. The office shall share such information with the

office of children and family services. The office of children and

family services shall use and share such information only for the

purposes of this section and in accordance with this section. Such

information shall be shared and received in a manner that protects the

confidentiality of such information. The sharing, use, disclosure and

redisclosure of such information to any person, office, or other entity

not specifically authorized to receive it pursuant to this section or

any other law is prohibited.

(e) Law enforcement and the family courts shall provide the office of

children and family services with such information, in the time and

manner required by the office, as is necessary for the office to

develop, validate and revalidate any such pre-dispositional risk

assessment instrument and process and to analyze any disparate impact on

dispositional outcomes for juveniles in accordance with this section.

The office shall use and share such information only for the purposes of

this section and share it in accordance with this section. Such

information shall be shared and received in a manner that protects the

confidentiality of such information. The sharing, use, disclosure and

redisclosure of such information to any person, office, or other entity

not specifically authorized to receive it pursuant to this section or

any other law is prohibited.

(f) The office of probation and correctional alternatives shall

promulgate regulations, in consultation with the office of children and

family services, regarding the role of local probation departments in

the completion and use of the pre-dispositional risk assessment

instrument and in the risk assessment process.

* NB Repealed March 31, 2028

3. A child shall not be placed in accord with section 353.3 unless the

court has ordered a probation investigation prior to the dispositional

hearing; a child shall not be placed in accord with section 353.4 unless

the court has ordered a diagnostic assessment prior to such hearing.

4. Each investigation report prepared pursuant to this section shall

afford the victim the right to make a statement. Such victim impact

statement shall include an analysis of the victim's version of the

offense, the extent of injury or economic loss and the actual

out-of-pocket loss or damage to the victim, including the amount of

unreimbursed medical expenses, if any, and the views of the victim

relating to disposition including the amount of restitution sought by

the victim, subject to availability of such information. In the case

where the victim is unable to assist in the preparation of the victim

impact statement, the information may be acquired from the victim's

family. Nothing contained in this section shall be interpreted to

require that a victim or his or her family supply information for the

preparation of an investigation report or that the dispositional hearing

should be delayed in order to obtain such information.

5. (a) All diagnostic assessments and probation investigation reports

shall be submitted to the court and made available by the court for

inspection and copying by the presentment agency and the respondent at

least five court days prior to the commencement of the dispositional

hearing. All such reports shall be made available by the court for

inspection and copying by the presentment agency and the respondent in

connection with any appeal in the case.

(b) The victim impact statement shall be made available to the victim

or the victim's family by the presentment agency prior to sentencing.

6. All reports or memoranda prepared or obtained by the probation

service for the purpose of a dispositional hearing shall be deemed

confidential information furnished to the court and shall be subject to

disclosure solely in accordance with this section or as otherwise

provided for by law. Except as provided under section 320.5 such reports

or memoranda shall not be furnished to the court prior to the entry of

an order pursuant to section 345.1.

7. The probation services which prepare the investigation reports

shall be responsible for the collection and transmission to the office

of probation and correctional alternatives, of data on the number of

victim impact statements prepared. Such information shall be transmitted

annually to the office of victim services and included in the office's

biennial report pursuant to subdivision twenty-one of section six

hundred twenty-three of the executive law.