N.Y. Family Court Act § 728: Discharge, release or pre-dispositional placement by judge after hearing and before filing of petition in custody cases

§ 728. Discharge, release or pre-dispositional placement by judge

after hearing and before filing of petition in custody cases. (a) If a

child in custody is brought before a judge of the family court before a

petition is filed, the judge shall hold a hearing for the purpose of

making a preliminary determination of whether the court appears to have

jurisdiction over the child. At the commencement of the hearing, the

judge shall advise the child of his or her right to remain silent, his

or her right to be represented by counsel of his or her own choosing,

and of the right to have an attorney assigned in accord with part four

of article two of this act. The judge must also allow the child a

reasonable time to send for his or her parents or other person or

persons legally responsible for his or her care, and for counsel, and

adjourn the hearing for that purpose.

(b) After hearing, the judge shall order the release of the child to

the custody of his parent or other person legally responsible for his

care if the court does not appear to have jurisdiction.

(c) An order of release under this section may, but need not, be

conditioned upon the giving of a recognizance in accord with sections

seven hundred twenty-four (b) (i).

(d) Upon a finding of facts and reasons which support a

pre-dispositional placement order pursuant to this section, the court

shall also determine and state in any order directing pre-dispositional

placement:

(i) that there is no substantial likelihood that the youth and his or

her family will continue to benefit from diversion services and that all

available alternatives to such placement have been exhausted; and

(ii) whether continuation of the child in the child's home would be

contrary to the best interests of the child based upon, and limited to,

the facts and circumstances available to the court at the time of the

hearing held in accordance with this section; and

(iii) where appropriate, whether reasonable efforts were made prior to

the date of the court hearing that resulted in the detention order, to

prevent or eliminate the need for removal of the child from his or her

home or, if the child had been removed from his or her home prior to the

court appearance pursuant to this section, where appropriate, whether

reasonable efforts were made to make it possible for the child to safely

return home; and

(iv) whether the setting of the pre-dispositional placement takes into

account the proximity to the community in which the person alleged to be

or adjudicated as a person in need of supervision lives with such

person's parents or to which such person will be discharged, and the

existing educational setting of such person and the proximity of such

setting to the location of the detention setting.