N.Y. Family Court Act § 353.4: Transfer of certain juvenile delinquents

§ 353.4. Transfer of certain juvenile delinquents. 1. If at the

conclusion of the dispositional hearing and in accordance with section

352.2 of this act the court finds that the respondent has a mental

illness, or intellectual or developmental disability, as defined in

section 1.03 of the mental hygiene law, which is likely to result in

serious harm to himself or herself or others, the court may issue an

order placing such respondent with the office of children and family

services or, with the consent of the local commissioner, with a local

commissioner of social services. Any such order shall direct the

temporary transfer for admission of the respondent to the custody of

either the commissioner of mental health or the commissioner of

developmental disabilities who shall arrange the admission of the

respondent to the appropriate facility of the department of mental

hygiene. The director of a hospital operated by the office of mental

health may, subject to the provisions of section 9.51 of the mental

hygiene law, transfer a person admitted to the hospital pursuant to this

subdivision to a residential treatment facility for children and youth,

as that term is defined in section 1.03 of the mental hygiene law, if

care and treatment in such a facility would more appropriately meet the

needs of the respondent. Persons temporarily transferred to such custody

under this provision may be retained for care and treatment for a period

of up to one year and whenever appropriate shall be transferred back to

the office of children and family services pursuant to the provisions of

section five hundred nine of the executive law or transferred back to

the local commissioner of social services. Within thirty days of such

transfer back, application shall be made by the office of children and

family services or the local commissioner of social services to the

placing court to conduct a further dispositional hearing at which the

court may make any order authorized under section 352.2 of this act,

except that the period of any further order of disposition shall take

into account the period of placement hereunder. Likelihood to result in

serious harm shall mean (a) substantial risk of physical harm to himself

or herself as manifested by threats or attempts at suicide or serious

bodily harm or other conduct demonstrating he or she is dangerous to

himself or herself or (b) a substantial risk of physical harm to other

persons as manifested by homicidal or other violent behavior by which

others are placed in reasonable fear of serious bodily harm.

2. (a) Where the order of disposition is for a restrictive placement

under section 353.5 of this act if the court at the dispositional

hearing finds that the respondent has a mental illness, or intellectual

or developmental disability, as defined in section 1.03 of the mental

hygiene law, which is likely to result in serious harm to himself or

herself or others, the court may, as part of the order of disposition,

direct the temporary transfer, for a period of up to one year, of the

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

developmental disabilities who shall arrange for the admission of the

respondent to an appropriate facility under his or her jurisdiction

within thirty days of such order. The director of the facility so

designated by the commissioner shall accept such respondent for

admission.

(b) Persons transferred to the office of mental health or the office

for people with developmental disabilities, pursuant to this

subdivision, shall be retained by such office for care and treatment for

the period designated by the court. At any time prior to the expiration

of such period, if the director of the facility determines that the

child is no longer mentally ill or no longer in need of active

treatment, the responsible office shall make application to the family

court for an order transferring the child back to the office of children

and family services. Not more than thirty days before the expiration of

such period, there shall be a hearing, at which time the court may:

(i) extend the temporary transfer of the respondent for an additional

period of up to one year to the custody of the commissioner of mental

health or the commissioner of developmental disabilities pursuant to

this subdivision; or

(ii) continue the restrictive placement of the respondent in the

custody of the office of children and family services.

(c) During such temporary transfer, the respondent shall continue to

be under restrictive placement with the office of children and family

services. Whenever the respondent is transferred back to the office of

children and family services the conditions of the placement as set

forth in section 353.5 shall apply. Time spent by the respondent in the

custody of the commissioner of mental health or the commissioner of

developmental disabilities shall be credited and applied towards the

period of placement.

3. No dispositional hearing at which proof of a mental disability as

defined in section 1.03 of the mental hygiene law is to be offered shall

be completed until the commissioner of mental health or commissioner of

developmental disabilities, as appropriate, have been notified and

afforded an opportunity to be heard at such dispositional hearing.

4. No order of disposition placing the respondent in accordance with

this section shall be entered except upon clear and convincing evidence

which shall include the testimony of two examining physicians as

provided in section two hundred fifty-one.

5. If the respondent has been in detention pending disposition, the

initial period of placement ordered under this section shall be credited

with and diminished by the amount of time spent by the respondent in

detention prior to the commencement of the placement unless the court

finds that all or part of such credit would not serve the needs and best

interests of the respondent or the need for protection of the community.